via Electronic Frontier Foundation (EFF):
May 21st, 2008
Posted by Corynne McSherry
Last month we told you about Lockheed Martin's effort to use trademark infringement claims to cause the removal of digital images of classic military aircraft from TurboSquid, a stock images site. The central mark at issue was the term "B-24," which Lockheed managed to register as a trademark for use in connection with scale models of airplanes. We sent an open letter to Lockheed’s licensing agency, demanding that they withdraw their improper objections. We're pleased to report that Lockheed has decided to withdraw its claim, and TurboSquid is putting the images back up forthwith.
This is a good outcome, but the problem remains. Because online communication and commerce often depends on intermediaries like TurboSquid, who may not have the resources or the inclination to investigate trademark infringement claims, it is much too easy for trademark owners like Lockheed to ignore fair use and shut down legitimate content. And not every target of improper claims is going to have the resources to push back.
One way to help prevent future overreaching claims is for trademark owners to learn that a trademark registration doesn’t give you a right to control everyday use of regular descriptive terms. Another is for large trademark owners to set up websites or email "hotlines" where the targets of trademark claims can seek review and prompt withdrawal of the claim if the takedown request was in error. Such a hotline won't stop real abuse, but will provide a relatively painless way for trademark owners to correct honest mistakes. Finally, service providers should institute a form of counter-notice procedure that would allow those who believe they have been accused unfairly to quickly determine the basis for a takedown, and request reconsideration. Real infringers won't bother to take advantage of such a procedure, but fair users could use it to show that their use is permissible (and therefore does not put the service provider at risk).
Posted by Mark Frauenfelder, March 21, 2008 9:32 AM
John Macneill is a kickass 3D illustrator whose work frequently appears Popular Science and other national magazines. He also contributes to the Turbo Squid 3D model site. Recently In 2002 he uploaded his model of a WWII B-24 Bomber to Turbo Squid. Lockeed Martin came across it and yesterday it wrongfully (illegally?) used the DMCA to force Turbo Squid to remove the file.
A photographer can take a photo of any type of car and sell the photo; look at any car magazine. A painter can create a painting of anything and sell that, remember Andy Warhol's famous 1968 painting of a can of Campbell's tomato soup? But a CG artist cannot create a sculpture of a Ford Mustang and sell that, at least not on Turbo Squid. There is obviously a double standard here. So where does this leave CG artists? Until a stock company becomes willing to fight back against these takedowns, there seems little any individual artist can do.
UPDATE: Cory [Doctorow]has the following to add:
Turbo Squid, a large 3D stock image site, has been systematically removing models of contemporary and vintage vehicles, after their manufacturers sent in improper DMCA takedown notices alleging that publishing 3D models of old cars and airplanes infringed on their trademarks (this isn't true, but even if it was, the DMCA deals with copyright, not trademark). Yesterday, 3D artist John MacNeill had his model of a WWII bomber removed after Lockheed sent a letter to Turbo Squid, alleging that this 60-year-old plane infringed on its trademark.
A Turbo Squid spokesperson is quoted as saying, "The thing you need to keep in mind is that you cannot make money off someone else's registered Trademark." This is simply untrue. Trademark does not protect owners from others profiting on their marks -- trademark's purpose is to prevent vendors from misleading the public about the origin of goods and services. If you use someone else's trademark ("Charger works with Nokia phones!") you're totally in the clear, provided that the purchaser doesn't get confused about whose product he's buying.
Trademark law is clear: Turbo Squid can sell unauthorized models of cars, planes and other trademarked objects, provided that they make it very clear that these models weren't authorized, made or marketed by the manufacturers of the cars, planes and objects. [read on...]