Copyright © 2005 Steven L. Lubetkin. All rights reserved.
Earlier this year, José Avila III, a young computer programmer from California, moved to Arizona for a new job. José didnt want to cause his roommates in California any financial difficulty, so he kept paying his share of the rent, and that didnt leave him with extra money to decorate his new apartment.
“I do a bunch of shipping, so I had a lot of shipping boxes sitting next to me,” Avila recalled. “I went for almost a month sitting on the floor working. A friend of mine sent me a picture of a desk he had made, and I took a look at that and was, like, Wow, I could do that, too, and Ive got everything right here, and I can make it a little more attractive and creative and interesting.”
Avila built a desk for his 17-inch computer monitor, and then a dining room set, a bed, and a 9-1/2 foot couch. His friends suggested he post photos on the web so other friends could see his creations.
He was reluctant at first, but then says he felt his furniture might inspire people who were a little tapped financially.
“I thought about it, and maybe I could reach out to somebody that was a little depressed or sort of in a bad situation, and inspire them to go out and be creative,” he said.
But there are few, if any, secrets on the Internet.
Avila told a few friends about his photos, which he posted on www.fedexfurniture.com. He decorated the site with the familiar orange-and-purple branding of FedEx.
He asked his friends not to spread it around too much. As if they would listen.
The next morning, Avila had tons of email, and the site was getting attention from the news media. Unlike Avila’s friends, though, FedEx wasn’t laughing.
They sent him a sternly worded legal letter claiming infringement of the companys copyrights and trademarks. They also invoked the federal Digital Millennium Copyright Act (DMCA) to pressure Avilas web hosting service to take the site offline.
Avila sought help from the Center for Internet and Society Cyberlaw Clinic at Stanford University, which got FedEx to admit that it used the provisions of the DMCA inappropriately.But instead of buckling under populist pressure, FedEx stood firm in its assertion of its design copyrights and intellectual property rights.
“In constructing useful articles on which the pictorial work [FedEx designs] is displayed, Mr. Avila created a derivative work without permission of FedEx,” wrote Les Bishop, FedEx Lead Counsel, Legal-Marketing & Intellectual Property, in an August 3 letter to Jennifer Granick, director of the Stanford legal clinic. The consent of the copyright owner … is necessary…”
There’s nothing better than a David and Goliath story, and so very soon, Avila was being interviewed on Good Morning America and the Today Show. FedEx seems to have won the legal skirmish, because the fedexfurniture website is offline as of this writing.
You can still get a sense of Avila’s creations on the BlogDetective blog, and on the Wiredmagazine online site. You can also do a Google image search on FedEx + furniture and youll find some of the surviving photos of Avila’s furniture on other websites and blogs.
In retrospect, Avila says he realizes that FedEx might have a point, but thinks they lawyered up too quickly.
“Had I been asked gently, instead of a were going to sue you into oblivion,” said Avila, “I could have been persuaded.”
FedEx declined to provide a representative to be interviewed for this story, but did provide a written statement.
“We salute Mr. Avila’s innovative decorating style, and we’re proud of the strength and durability of our boxes,” reads the statement. “However, we have no choice but to protect our good name, no matter how trivial the situation seems. Mr. Avila’s continued promotion of his creativity beyond his apartment requires that we ask him to simply stop his promotional efforts and respect our rights.”
In an era when buzz, or unconventional word-of-mouth, marketing is used to create excitement for products to help them break through the clutter of commercials, embracing FedEx Furniture might have been better for the delivery service. But there’s also a school of thought that says, I dont care what you say about me, as long as you spell my name right.
Download the podcast interview with José Avila. (18.77 mb stereo MP3 file, 13:40 mins.)
Theme Music: “Katonah,” from Tone Matrix, podcast friendly music via GarageBand.com