Ana at Knock Off Wood has gotten the not-unexpected cease and desist letter from Williams-Sonoma, owner of Pottery Barn, West Elm, Pottery Barn Teen, Pottery Barn Kids.
The letter tells Ana she must remove all Pottery Barn pictures, trademarks and furniture collection names from her site by March 12.
There are several things about this that fascinate me and it all has to do with how companies are either embracing or completely screwing up social media.
I am not a lawyer *, but I do play one on TV, and I think Ana does have a defense under "fair use" which among many rules, allows you to use copyrighted material in your work as reference for commentary, etc. as long as it is cited. There is also a some legalize about whether or not you profit from the other party's copyright, etc. etc. etc. But, let's be honest, regular people don't have the time, or more importantly, the money to defend it.
So, being a student of social media and how it is changing the way brands interact with consumers, I offer my advice to Williams-Sonoma. Legally, you win. Socially, you lose big.
First, your claim that "The reference to WSI's product names throughout the website convey the misinterpretation that the website is somehow affiliated with WSI." is weak. I doubt any reasonable person going to that site thought it was in any way affiliated with WSI and knew exactly what it was-- a do-it-yourself site that imitated WSI products. Besides, this is often solved quite easily on other sites with a disclaimer: "This site is in no way affiliated with WSI and all trademarks and copyrights are owned by WSI." (Check out Regretsy and IkeaHacker. And trust me, Regretsy is not complimenting Etsy sellers, but it sure is selling their products.)
Second, according to Quantcast this blog reaches 2,416 people per month. That is 2,416 more eyeballs that see your products and say "Wow! That bookcase really is cool." Wait, that's 4,832 eyeballs if they all have two eyes, but you get my point. And most of the content is quite complimentary to your products, except for the reference to price. But I'm sure it's not the first time you have heard you are expensive. In the social media world, you are missing a big opportunity, in my opinion. Don't make her pull out your name-- make her run a sidebar ad on her site in exchange for the use of your pictures. The ad could say "After you try to make your own, just buy ours."* Because I assure you, everyone looking at the site is not going to succeed at making their own. Or "I don't care how good you are, I don't think you can pull off a couch." And despite their protestations, there are regular folks that buy your stuff, even if they don't admit it in public (or on a DIY site).
Third, the web makes everything you do very transparent. Thus why your cease-and-desist letter is now an image on the World Wide Web that will never go away. And quite frankly, it's hard to send a cease-and-desist letter to someone in such a different position than you without looking like an ass. A letter along the lines of "We are aware you are using some of our trademarks and copyrighted images and would like to discuss how we can achieve our goal of protecting our brand while letting you achieve your goal of making furniture that attempts to be as wonderful as ours available to everyone." would have looked so much better as a jpeg than your letter.
Lastly, I have seen many a site use your images and collection names as they fawn over your latest offerings. Heck, I'm pretty sure you would ignore me reprinting your entire catalog on my site if I ooohhhed and aaaahhhhed about which pieces I wanted. Unfortunately, in the world of social media, you've got to take the things you don't like with the things you do. It is a conversation and not all conversations about you will be positive.
And, by the way, you didn't invent the bookcase.
* My legal and ad copy services are always available by emailing me. Since I have no training in either, my rates are quite reasonable.
Edited to add 3/14/10: Mike Masnick at TechDirt has a great article about this with a much more detailed analysis of fair use.