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No, you can't put *anything* on a watch.

Posted,


Sooooooooooooooooo, we finished our Kickstarter campaign on March 28 and, with the support of nearly 800 people, we are officially able to do one-off production of custom watches in San Francisco. Get Excited. What's really cool about creativity is that it's protected. By a little something called TRADEMARK LAW. So while our fans are able to put photos they took, or their own artwork, or their brand's logo for cool team gifts, they can not send us a photo of Childish Gambino (nee Donald Glover) and wear it. Because CG/DG wouldn't like that. We asked our small business lawyer, Doug, for how we can tell people that we really really really want them to be creative but that we really really really don't want them to steal others' material, and he sent us the following email. Why am I copying it in? Because we want you to see exactly what Modify stands for. I want you to know that even our lawyer - the guy who's supposed to be a stick-in-the-mud - is most concerned with a Modify customer's experience. And yes, I'm a little afraid that without his permission to post this, I may not have the rights to do so. SUE ME DOUG. Sue me -Aaron   [what follows is a confidential email from Doug to us] This will be a delicate balancing act.
On the one hand we don't want to turn away too many orders that we can produce.
 
But on the other hand we need to be smart in protecting the company as we move into this exciting, but also legally dangerous space.
 
And on the other other hand we need to figure out an efficient way to do so or we will be spending way too much time on questionable orders..
 
The good news is we saw this coming and included language in the Kickstarter campaign: "HEY MODIFY, CAN I REALLY PUT ANYTHING ON A WATCH? Well, not quite anything, but if you have the rights, the answer is YERP! We very much appreciate your trust in working with your images. The images you submit must be your original work. We cannot use copyrighted or trademarked material unless you have written approval from the holder. You warrant that the images you provide us are your original work and will not infringe on the rights of any third party or otherwise result in any potential liability to Modify."
 
We also have language in the terms and conditions of our website:
Your Submitted Materials. You agree that materials you submit to us ("Submitted Materials") are subject to the following terms and conditions:
  • You represent and warrant that your Submitted Materials are not abusive, threatening, unlawful, libelous, obscene or otherwise objectionable.
  • You agree that Modify might not process your order to enforce these Terms or to comply with legal obligations or governmental requests.
  • You will retain ownership of your Submitted Materials, but you grant Modify a non-exclusive, royalty-free, perpetual, worldwide, irrevocable right and license to use, reproduce, distribute, create derivative works of and publicly display Submitted Materials. For example, Modify might promote your Mod-To-Order watch as an example of a fantastic custom made watch.
  • You represent and warrant that Submitted Materials are youroriginal work and do not infringe on any intellectual property rights of any third party or will otherwise result in any potential liability to Modify.
  • You agree to indemnify and hold Modify, our directors, officers, shareholders, employees, contractors, agents, representatives, affiliates, and third party users harmless from and against any and all claims, causes of action, liabilities, damages, losses, expenses and costs (including, without limitation, attorneys' fees) that arise directly or indirectly out of or from (i) your Submitted Materials; (ii) you obtaining products from us or (iii) your violation of these Terms or any other agreement with us, any representation or warranty or any applicable law.
The plan can change overtime as we get feedback from customers, but how about this for a start:
 
If you get something that might  not be the customer's original artwork we could send them an e-mail along the lines of:
 
Thank you for your trust in working with your images. The good news is we can put anything on a watch that is your original artwork. The bad news is we cannot use copyrighted or trademarked material unless you have written approval from the holder. Is the image you submitted your original work or do you have written approval from the holder? If not, can you please submit a different image that is your original work? 
 
You fellas are much more witty than I am and so you can probably think of something better . . . .
 
If they write back that it is their original work and perhaps they are right, perhaps one more e-mail before proceeding with the order:
 
Thank you for the confirmation!
 
We hate to get all legalese, but our attorney says we need to confirm that you warrant that the image you provided us is your original work and will not infringe on the rights of any third party.
 
Can you please confirm that if we use your image it will not result in any potential liability to Modify and that you will indemnify and hold us harmless from any claims and expenses  that arise from us using your image?
 
If so, we will make you one heck of a customized watch.
 
If you are not sure if the image is your original work, we recommend you err on the side of caution and select a different image that is your original artwork.
 
We can't wait to make you a great watch as soon as we are sure that it does not infringe on anyone's intellectual property.
 
We could also combine it into one e-mail but I am hoping the first e-mail will weed out 90% of the questionable orders in a way that isn't too legalese.
 
Final point: Even if they say yes to both e-mails, if the image clearly belong to a big dog I do not think we should produce the watch unless they provide solid written approval of their use of the image as that is where our biggest risk is. 
 
Ok, that is the best I could come up with, but I am definitely open to ideas on how to strike the balance between making as many awesome watches as possible and as efficiently as possible without getting us into a heap of legal trouble.
 
Doug
 

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