Tucking this whole Jayne’s Hat business into its bunk…

I believe this will be the last I post on this — I just want to make a few observations after my post from yesterday. Buzzfeed posted an article late last night about the whole thing, and even featured some of my tweets about it. And ThinkGeek posted a couple of responses to all this yesterday and today. First, they disavow any involvement in the cease and desist orders sent to crafters selling their own Jayne Hats and secondly they’ve announced that 100-percent of the profit will go to the “Can’t Stop the Serenity, a Browncoat charity dear to ThinkGeek’s heart that raises funds and awareness in support of Equality Now.”

Well, that makes it all better, right? After all, ThinkGeek doesn’t even own the license, they just worked with the Firefly license owner Ripple Junction on the hat, and besides we all know what kind of assholes those guys at 20th Century Fox Television are! And now that they’re donating all the profits from the hat to a worthy, Firefly-oriented charity, all is well in the land of the geeks.

But…

You knew that was coming, right? But what about the crafters? Some of whom have been selling these hats for eight or more years? They kind of got stuck with the crappy end of the stick on this one, didn’t they? I don’t see anyone donating to a charity for them. And please don’t give me any gruff about how they shouldn’t have been selling unlicensed copies in the first place. Unless you’re willing and able to make 10,000 units of something, license owners won’t even answer your emails. And it’s a damn hat — a part of a costume from the show, so not covered by copyright. It’s not like Fox owns the design of the hat. There’s no way any court in the land would back Fox’s play here.

However, what crafter in the world could afford the time and expense AND risk of fighting it in court? Not a single one I’m aware of. So who is to blame, and more important what can be done to stop a cluster like this from happening again?

Well, Fox is clearly to blame for the cease and desist orders. Or are they? Under current law, if there is the smallest sign that the owner of intellectual property hasn’t enforced its rights to the fullest, it puts their intellectual property claims in jeopardy. So yes, Fox is still being a dick about pretty much everything Firefly-related, but not especially so in this instance. It could even be argued that they’ve willingly allowed this market in Jayne hats to exist for almost a decade without going after folks. Something obviously changed in the past few months then, huh?

What about Ripple Junction, the license owner? They’ve been strangely quiet, and some have said that if the Etsy listings were reported to them, they were required to pass that information along to Fox for action. That may or may not be the case, but in my experience, the companies that purchase these merchandise licenses are very aggressive (read “way too fucking aggressive”) about pursuing non-licensed sellers. I’ve seen nothing to dissuade me from thinking that Ripple Junction wasn’t looking to instigate action against non-licensed sellers from the very beginning. One can easily imagine that when deciding to mass produce the hat, they did their due diligence to see how much demand there was for this product and cruised by lots of those Etsy listings well before any hats were even made or agreements to manufacture signed. As one troll noted to me on Twitter yesterday (in a different context), that’s just Business 101.

And lastly we come to ThinkGeek. Again, as I stated earlier, I’ve been a customer of ThinkGeek for ten years and very much a supporter of the company. They and Valve are usually at the top of the very, very short list of companies I repeatedly point to as doing right by their community and the world in general. But being a fan, like being a friend, sometimes means you have to call someone on their shit, and in this instance I believe ThinkGeek still deserves some of the blame. The mass produced Jayne hat was, as they have said, their idea and they worked closely with Ripple Junction on the design. It is likely that had they not done so, the C&Ds would not have been sent out. Maybe not forever, but not within months of having started to sell their licensed version.

Regardless of who owns the license, who sent the cease and desist orders, or anything else – ThinkGeek decided to …well, there’s really no other word for it… bully crafters out of the business of selling Jayne hats. They claim this was due to public demand, despite the fact that any web search of “jayne hat” back in November 2012 would have led to dozens and dozens of independent crafters selling them. No, what they did was that they saw a market ripe for the taking since they’d be selling the officially licensed version.

I challenge anyone at ThinkGeek to tell me, with a straight face, that they didn’t anticipate that bringing a licensed Jayne hat to market would result in crafters getting shut down. I mean the whole point of selling “licensed” products is the ability to get non-licensed sellers shutdown. Honestly, the fact that ThinkGeek would not be licensing the product themselves and would be working with another company who did own the license was probably seen as a huge benefit — if anyone complained, they could just point their fingers at Ripple Junction and Fox and say “Sorry guys, we’re not the ones shutting you down.” — a statement that is, while superficially factual, still misleading.

That’s it for the Parade of Blame, unless you want to pull in every US citizen that has never voted for candidates interested in making intellectual property reform a priority for our government. As it stands now, the system is pretty damn broken.

While the damage in this case has been done and can’t be undone, I do have one last suggestion for ThinkGeek, and it’s one that I sincerely hope they give some thought to as I still believe the company and all of its employees are some genuinely nice, geeky people:

Please don’t compete with the community of geeky crafters. There are probably a number of other licensed, mass-produced versions of products you can start selling. That doesn’t mean you should. You aren’t Aperture Science. You don’t need to do what you must because you can. There is more than enough business for you to keep on selling (and sometimes creating) wonderful products without looking to muscle crafters of handmade products out of business — because that is exactly what will happen every time you do.

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What ThinkGeek *Should* Have Done (And Still Can!)

*update at bottom of the page*

So, just to start off, I like ThinkGeek — I really do. I’ve been a customer since 2003 and have literally spent thousands of dollars on their site (helped that my company used to give out prizes and I made sure to buy them at ThinkGeek. Also helped by the fact I’m a complete nerd.). I’ve bought stuff from them for my friends, my wife, and my kids. Hell, for me, they’re even based locally and I’ve enjoyed seeing them grow.

But with growth comes change — note I did not say ‘progress.’ As highlighted with the recent Jayne Hat issue, ThinkGeek has made a conscious decision to eschew crafter created pieces (which they used to carry a smattering of), and focus on mass-produced, licensed products. One can argue if it was an intended or unintended consequence, but part of the upshot of this is that FOX is now going after crafters of fan-created art on Etsy like a pack of hybrid lawyer-dementors. Reportedly this includes other Firefly-related items, but has mostly been focused on sellers of the aforementioned Jayne hats.

Sadly, the irony of mass producing a knit hat that in the show was handmade by Jayne’s mother is lost on ThinkGeek. Evidently also lost was what the impact of cease & desist orders would be on the crafters who had been selling these items for many years. (And let’s not forget the irony of FOX “protecting” the Firefly intellectual property when they’ve repeatedly done everything in their power to screw over the show itself.)

Now ThinkGeek could have done a number of things differently. They could have gone with an unlicensed hat and just called it something else — FOX doesn’t own the intellectual property of the style of hat (though I’d love to see them try and establish prior art for it!), just the association with Firefly and the character Jayne. Or they could have even said “Hey, we COULD mass produce this hat, but really part of the whole phenomenon of this is that they’re handmade, so maybe we just shouldn’t bother.” However, if they really felt there needed to be more Jayne hats in the world, as they told me in a tweet earlier today, why not think a little more boldly?

What I’m about to suggest is something I’ve tossed around as a business idea of my own for awhile and discussed with a number of friends — but let’s face it, I’m middle-aged, married, with kids and a mortgage — my days of startups are probably behind me. Instead, I’ll gift this idea to ThinkGeek in the hopes that they really do want to do the right thing (unless they want to hire me to help run it, in which case, let’s talk):

Imagine, if you will, the force for geeky goodness that ThinkGeek could be if they decided to create their own online storefront for geeky crafters? Instead of having to wade through billions of potential Regretsy items to find the real quality stuff, imagine going to thinkgeek.com and in addition to seeing Portal gun replicas and Annoy-a-trons, you could find handmade hats of an especially cunning design, handmade Chell costumes, and handmade hobbit pipes. That would be pretty fricking cool, wouldn’t?

Imagine the benefit to those geeky crafters, having their wares brought to the attention of folks already actively looking for geeky products? ThinkGeek wins, crafters win, and more importantly all the rest of us win. There is assistance and advice ThinkGeek is especially well suited to offer these small scale crafters, especially on shipping and possibly even on avoiding the traps of intellectual property infringement. Basically the only loser would be Etsy, and you know what? Screw Etsy.

For me, part of being a geek is tied into the maker culture — geeks tend to really like making things themselves or they have a lot of love and respect for those who can and do. If ThinkGeek followed my suggestion they could in essence offer the best of the entire geek world while remaining true to the spirit of what, at least to me, it means to be a geek.

Otherwise, they’ll continue to move to be a part of everything that runs counter to that spirit, and hurt crafters — the very ones who embrace that ethos with their time, energy, and hard work.

Finally, to be absolutely clear, FOX is the main bad guy here – but ThinkGeek can’t license from them without acknowledging that said license obligates FOX to pursue non-licensed sellers. That is part of the basis of a licensing agreement, part of which usually says something to the effect of “Hey, we’re going to pay you a bunch of money to be the official seller of this item representing intellectual property you own, and to protect that investment, you’re obligated to go after anyone else who tries.” That’s just what licensing is, so ThinkGeek’s fingerpointing at FOX and trying to act the innocent is disingenuous at best.

I wrote a post some years ago titled “Why I ❤ Crafters (and Other Artists) And You Should Too” in which I explained why I have so much respect and admiration for them. Towards the end of it, I wrote “…surround yourself with those who are creative and bring a little more beauty into existence, and you will find it easier to do the same.” I still very much believe that and it is advice I’d like to see ThinkGeek take to heart.

*Update April 9, 2013* So ThinkGeek has corrected themselves and now state that the manufacturer they worked with on the hats is actually the license holder. However, I still stand by what I said — the best that ThinkGeek can claim is that they decided to bring a mass-produced and inferior product to market that directly competes with what was offered by the geek crafting community. And they did so with a company that makes all of it’s money off of licenses, Ripple Junction — and I believe there is still information to be had about that company’s role in the cease and desist letters that went out. It’s extremely common for license holders to push to have C&Ds sent out to products they view as infringing on their license.

*Update April 10, 2013* See here