WWII Bomber: "Trademark Infringement"
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 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.LinkA 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.
The unfortunate precedent was allowed to stand, and since 2003 many other corporations have followed suit. The "banned" list at Turbo Squid now includes dozens of different makes of cars and aircraft. When recently challenged on the basis for these continuing takedowns, Nancy-Ellen Martin at Turbo Squid said "The thing you need to keep in mind is that you cannot make money off someone else's registered Trademark." The DMCA, of course is an amendment to US copyright law and has nothing to do with trademark. The US Patent and Trademark Office defines trademark as "a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others." In short, trademark is all about avoiding confusion in the marketplace, and is intended to prevent a manufacturer from selling a product that is falsely branded to appear to be another similar product. This seems to be even less of a justification for a takedown than DMCA. 3D models are not real-world cars, trucks or airplanes, there can be no confusion in the marketplace.
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No, that's a painting. Please follow up on this one.
I'm glad I read Mr. MacNeil's article. As a 3D artist, I'll be boycotting Turbo Squid from now on. They are seriously misinformed and it makes me wonder what other areas for their business this stupidity cares over to. Are they this stupid with my credit card numbers or personal information?
As for Lockeed Martin and Ford, are these the actions of the company or just their over-zealous legal team trying to create billable hours?
About taking pictures of cars and selling them: I don't think that your argument would hold up in court.
A car magazine might get (implicit or explicit) approval from a manufacturer, but that doesn't automatically mean that others will or should be given the same approval.
With the current copyright system, it's up to the copyright owner to decide what is or is not allowed.
The reasoning behind this specific case is probably something like this:
We benefit from the publicity a magazine brings, but not from someone producing and selling merchandise pics of our planes.
With Warhol there's the argument that his paitings are not mere copies, but artistic interpretations.
Whether something is a copy or not can only be determined by a judge on a case to case basis.
But did you know that Warhol got sued over the flower pattern used for his Flowers paintings?
He settled, but I read in a biography that he payed for image sources from then on, to avoid future problems.
http://www.warholprints.com/portfolio/Flowers.html
http://www.warholstars.org/chron/lnx/flowrs64.html
Is a WWII military aircraft design in copyright? All 'general issue' military equipment has to go through a contracting process where the design is handed over to the government, and any manufacturer can then tender to actually build the kit.
>>About taking pictures of cars and selling them: I don't think that your argument would hold up in court.
I don't think that's true. You might remember that Ford recently backed off on it's copyright claim on photos that car club enthusiasts took of their own cars and were using in a calender. And I doubt that manufacturers are giving permission to shoot photos of their cars to a magazine like Consumer Reports. The magazine needs no permission.
Namdnal Siroj & Nic - Trademark is not copyright, which was the basis for the take down. I have to wonder if you even read the post at all.
Calm down, NOENgrinch.
I read every word.... before the jump, and 'trademark' wasn't mentioned once.
I notice now that it was in the title, but who reads the title when there is a cool picture of an aeroplane to distract you.
It gets even stupider. The developers of the recent PC game Silent Hunter IV were so cowed by DMCA fears that they substituted 3D models of Avro Lancasters for B-24s and Brewster Buffaloes for Hellcats.
They even made up fictitious military medals to replace the real ones. Who knew the Purple Heart was copyrighted?
This is an ongoing thing with military models.
Take a look around and try to find a plastic model kit for a B-24.
They haven't existed since the 80's.
I think what it comes down to is that these companies own a shape, in particular the Davis wing. What you're duplicating is a proprietary wing design, fuselage shape, all that.
One has to differentiate a 3D replica from a 2D rendering. A drawing or photo is just that, but a 3D model is a scale reproduction.
This seems -- aside from scale and complexity -- to be along the same lines as making an exact copy of a Coca-Cola bottle, Zippo lighter, or Chevy Malibu.
John MacNeill is pointing out is a fundamental and frustrating issue with digital content – the laws are inadequate and large corporations operate under old practices. When you run a business in digital content with a large community, some content will cross the line and draw the ire of existing IP owners. They will complain. Typically, the lawyers come with all barrels blazing in cease and desist letters claiming copyright, trademark, and even trade dress (http://www.copylaw.com/new_articles/tradedress.html) infringement. For TurboSquid, this typically flows under our DMCA takedown procedures, and we do restrict future publishing of products with such issues.
My understanding of the overall situation is different from John’s, and so is the opinion of attorneys that send such letters. To understand the scenario, ignore common sense for a second (I’m not picking on attorneys here as my wife, brother, sister-in-law, and father are all attorneys). Companies have an affirmative duty to protect their IP from infringement – that means that they must take action to prove that they are defending their IP. They can’t let somebody build a business on their IP for years (say, until it is profitable) and then turn around and scream ‘infringement!’ and shut down (or take ownership of) that business. In that scenario, the IP owner loses the right to enforce their rights. I’m simplifying a bit, but that’s the general picture.
So what do the companies do? They hire attorneys to sit around and send form C&D letters all day demanding money from anybody and everybody that has any commerce associated with their IP, and some that do not. Frequently, this isn’t in-house council, even for large companies. It’s just some person at some firm cranking out billable hours and trying to get a return for the company by threatening everyone they can.
Does that person understand what a 3d model is? No. They may not even be sure that it is digital at all, they were just typing in the company’s product name on Google and going through search results when they found TurboSquid. When you try to discuss licensing a blanket right to sell 3d models on behalf of all sellers on TurboSquid, it turns out it’s not these lawyers’ job to negotiate those rights. These lawyers don’t get any money for helping you figure out who to talk to, and have to bill the client for even trying to answer your question. Not a lot of options there.
When you finally reach the people that handle corporate IP licensing, they are typically using a traditional model that is based on selling something like toys. They want to know how you are going to use their IP, what the product is, how many it will sell, and want a percentage of the action and a sizable advance on sales. TurboSquid hasn’t been able to make that process work for our marketplace.
Now how backwards is this? Very. It wasn’t long ago that companies insisted that movie producers pay them (!!!) for the rights to show their products. Back when I used to do 3d and compositing, I remember roto-ing out a Rolex logo on a watch in a TV commercial for a director who wanted to avoid the issue. Now there is a complete switch. Companies pay big bucks to get featured in the movies and on TV because it helps their brands.
Will this change for 3d models? I certainly hope so. Most companies have left a void in getting their brands into the virtual world and artists are filling that void. The artists aren’t profiteers or abusers, and they feel they are doing great work and that it serves the companies’ interests. With the advent of Second Life, some companies are finally starting to see the light. When will they realize the system of IP enforcement they’ve created is flawed? I’m not sure, but it’ll probably be driven by marketing instead of legal when it does. How’s this irony for you – we’ve been screamed at by the graphics people at a big company because their products disappeared off TurboSquid because their company’s lawyers sent us a cease & desist letter. Left hand – please meet right hand. Sheesh. As a practical matter TurboSquid cannot change this alone, and we don’t have the wherewithal to lobby the US Congress effectively, or to litigate against multiple companies each with a thousand times our revenue.
John asserts that TurboSquid claims that his 3D model is a “trademark infringement”. We don’t, or if somebody here did, that’s not what they meant. What we’re claiming is that another company (one valued at US$40,000,000,000) is attacking TurboSquid for his action of posting the model on our site. TurboSquid doesn’t know John’s legal rights to the trademarks, and we don’t know whether Lockheed is correct in its assertions either, but we do know it is impractical (and likely impossible) for TurboSquid to be the judge in this case and we follow the reasonable procedures created under the DMCA. John warranted to us in accepting our EULA that he had the proper rights, and since there is a disagreement over this, we took down the model and it is now his obligation to demonstrate to us that he has these rights from Lockheed.
To address a specific point, John claims that “A photographer can take a photo of any type of car and sell the photo; look at any car magazine.” I point the reader to the Image catalog site that lists 15 pages of restrictions for selling photographs. (http://www.imagecatalog.com/about.php) “Image Catalog will NOT accept images that violate copyright and trademark laws. Our list is not exhaustive and is intended as a resource for photographers to use. It is also the responsibility of the photographer to research the subject matter prior to uploading images. If you would like to add to our list below, kindly send us an email.”
Notice that while they have over 2500 images of the sun, they have 7 of Fords (http://www.imagecatalog.com/search.php?sw=ford&search.x=0&search.y=0&st=nw&sID=1&swt=l&itp=P&iti=I&xw=&ol=1&op=1&os=1&ow=1&mn=&mpl=0&itc=C&itm=M
). One is a bridge (fjord?), two are ancient cars, there's 1971 convertible, a rear view mirror and part of a cop car.
I’d like to invite John and any other folks to help contribute to solving this problem in two ways. Firstly, contact Ford (or any other appropriate company) and try to license the right to sell your 3d models. If anyone successfully licenses the rights, let us know and we will put your models back online and contact Ford directly to try to get a blanket license for everyone at TurboSquid. The second way is to research and find appropriate case law backing up John’s other assertions. I haven’t seen any case law, but I would welcome solid information that helps John, every 3d artist, and of course our company put this problem to bed.
Regards,
Matt
--
Matt Wisdom
Chief Executive Officer
TurboSquid
I'm really glad to hear Matt's side of things. Any chances we'll get a contribution from Lockheed?
Functional elements of designs are not copyrightable (this is why we describe design copyrights as "thin copyrights"). The Davis Wing and other elements of the fuselage are *all* functional -- and therefore not copyrightable.
We live in a world where teenagers think the Nazis bombed Pearl Harbor, so we had to nuke Vietnam.
You'd think anything that would keep this bit of history alive for newer generations would be appreciated.
I love all the old warbirds. By comparison, jets are fancy vacuum cleaners.
We live in a world where teenagers think the Nazis bombed Pearl Harbor, so we had to nuke Vietnam.
We live in a world where adults think that Iraq had WMDs and was a base of ops for al-Qaida.
Well with Warhol another appendum is the fact that while the artwork could depict trademarked products as editorial, use in promotional material had to be done under permission. That's why if you look at the promotional materials for Warhol's exhibition in 2004 at SFMOMA you'll see permission legal copy at the bottom.
Content law is fun!
Well, as the economy tanks, at least we can count on bolstering business through intellectual property rights lawsuits--America's new growth industry!
Especially troublesome in this case, is the fact that the US government, and therefore the taxpayers, have already compensated the contractor immensely for its work. Yes, our grandparents already paid for those bombers, just as we are now paying for all the Apaches, Sidewinders, M-1 Abrahms', etc. Military designs have generally been considered public domain material as far as plastic model kits are concerned, at least that's what a friend of mine at one of the major hobby companies told me. It seems stupid to crackdown like this, since models of these vehicles, and their use in media, generally promotes the contractor with free publicity, and basically a pro-military (spending) message. But I guess everybody wants to be the new RIAA..
Why aren't the artists just filing a counter-notice for the DMCA take down notice? Legally, if the site receives the take down notice, they must pull the image/video/file/page/whatever was complained about.
If you file the counter notice the site has the option to legally reinstate your work, and the only recourse the large companies have is to sue you personally. Which they have no intension of doing, since this is quite simply an annoyance campaign.
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The ill conceived use of "Trademark" to cease the sale of thier long public domain copyrighted IP is these companies way of "grasping at a straw" to keep you all from commercially exploiting their copyright expired "work".... until you TurboSquid artists ban together and file a suit together and challenge them, these unsubstantiated DMCA claims will continue.
These companies of course are betting you will never form such an alliance. And knowing most artists that's a good bet. [just kidding you all a bit as a 3d artist myself]
Maybe TurboSquid should form a group and challenge the DMCA claims it would be in their business interests as well.
It doesn't surprise me that Turbosquid managed to attract this sort of trouble after they managed to infuriate many CG artists. They had a trolls selling and taking credit for car models which had been posted for free by their real authors on other sites. When the original artist complained, they claimed that they were ignored or brushed off by TurboSquid. I heard that many of them were looking at a variety of other methods of dealing with the problem. It wouldn't surprise me if this is how the car companies manged to get wind of their site.
As an aside, I think that the car companies would be surprised to learn how little of their IP was registered in the old days. People have gone looking through the granted patents and found almost nothing granted to Ford in regards to whole body design before a few decades ago.
I notice that the patent or trademark registration numbers never seem to get mentioned when the car companies try this sort of thing.
I know that video game dev houses are thoroughly annoyed at the car companies. Many have to use fictitious cars. The car companies try to charge them if they happen to have any of their vehicles in a game( this is if they even allow them at all). Most car companies also refuse to allow serious damage modeling. On newer cars they either only allow slight scuffing or else charge through the nose for anything even slightly beyond that).
To Palindromic: I don't know if I'd call it "romanticizing," but I can understand why World War II vets would fondly and respectfully remember the machines that helped to preserve freedom and thwart the global-domination dreams of Hitler, Mussolini and Tojo. Or why any combat veteran would feel a bond with the weapon or piece of equipment that may have saved his life on more than one occasion.
BTW, I was born nearly 10 years after the end of the war. The big one, I mean.
You're 80?
I agree that copyright law needs a fresh eye, because it is being used for purposes that were not intended, and new technologies have new scopes.
(Also, realize that this issue is bigger than a 3d-model-maker getting a letter - think of research and development in medicine, for instance.)
That said, this company seems to be defending what they think are their rights, within the current system, and it's a bit petty to call them a bully and leave it at that.
It seems to me that artists, bloggers, 3d-model-makers, etcetera are really the ones that need to take responsibility and voice solutions rather than cry woolf.
Let me say this again. This is simply misuse of the DMCA/copyright law by the various companies sending the take down notices. They may be completely fraudulent notices, but if Turbo Squid does not comply they are opened to possible legal action.
This is why Mark's write up says "used the DMCA to force Turbo Squid to remove the file."
So, let us not use this as an excuse to hate on a service (many) use and love. I would feel completely different about this if we had an article about them refusing to reinstate after an artist filed a counter-notice. Until then... be nice!
@ anyone reading and commenting
Look up the meanings of "Copyright," "Patent," and "Trademark".
This is an issue of misuse of a copyright protection law to enforce a trademark (that was not actually being violated/infringed).
Why bring in patents? Why say bad things about the companies using their patents? If anything, say something about how the patent system itself is wrong - and try to do it in a forum about patents. Mentioning patents in this forum furthers the disinformation the propaganda term Intellectual Property has spread.
@Namdnal Siroj, right above me
The Solution is already a part of the law: a counter notice. Maybe the real solution would be to spread the word to the artists, bloggers, 3d-model-makers, etcetera [sic] the a counter notice exists.
@mrcamper
You seem to be one of the people that need to know about counter notices. A coalition, while a swell idea for many things, is wrong wrong wrong for this occasion.
I believe that one of the purposes of the DMCA is to spread fear, uncertainty, and doubt about copyright. Its takedown provisions are in the same spirit as the Fugitive Slave Act -- all you have to do is claim that something is your property in order to oblige others to actively assist you in getting it.
When you hear people talking about "intellectual property," assume until proven otherwise that they're trying to see how much territory they can grab via sheer effrontery. People claim copyright or trademark or patent infringement when they hold a copyright or trademark or patent. When they don't hold anything, they call it intellectual property.
I'm appalled at the extent to which people have accepted the idea that they have to get permissions or licenses for hitherto legal activities. It's the money, of course; nobody can afford to fight these corporate legal claims to rights they don't actually have, so their rights grabs go unchecked.
Namdnal Siroj (3):
Have you ever seen a movie that thanked the automobile manufacturers in the credits for giving them permission to show that model of car? Neither have I. Go back and re-read what Cory wrote about copyrights vs. trademarks. Cars are not copyrighted. Volkswagen and Ford and Honda are trademarks.How does Hollywood get away with it? First, they know the law and their rights. Second, they have lawyers too, and theirs are nastier. They have to be -- the movie industry is one of the great R&D labs for rights-grabbing techniques.
Ahclem (8):
That's exactly what I mean about the DMCA. It shouldn't even be applicable in their case, but the fear of it is enough to make the developers mess up the historicity of their game.You're not joking? They don't know the Purple Heart can't be copoyrighted or trademarked? That's bad.MattWisdom (10): so they're hiring out-of-house counsel that doesn't know from copyrights and trademarks, and these guys are cranking out semi-random threatening letters to establish billable hours? Nobody in that system has any incentive to hesitate before claiming rights. It also doesn't sound to me like they're going to accumulate any expertise on the subject.
I suspect that the paucity of car photos on the Image Catalog site has more to do with car manufacturers using the same stupid system of indiscriminate C&D letters than it does with the laws governing the use of those images.
However else you classify them, models are art, and are entitled to the same protections we give art in other media.
Cory (12), I didn't know that. I suppose it stands to reason it's only the mutable skin of the machine that's copyrightable.
Palindromic (19), your comments could hardly have been ruder, shallower, or more condescending. Some wars are necessary. That one certainly was. I can't improve on Scottpens' remarks on the subject (22), so I'll just encourage you to take them seriously.
Scribblingsquid (21), we already knew the U.S. auto industry was stupid.
I take that as a further sign that the citizenry can't afford to fight back against these rights claims. If they could afford it, the auto companies would cite numbers.If the U.S. corporations keep getting so carried away like this (in addition to continually being granted absurdly broad patents and other IP rights), what incentive is there for other countries to continue to allow the U.S. dominated IP system to continue ?
Add in the weakening dollar, the rise of other coalitions like the EU, and the industrial and financial rise of other countries like China and Russia (plus Putin's belligerent attitude towards U.S. dominance). If they feel that the system is too far stacked against them, what keeps them from a mass defection from recognizing these absurdly broad territory grabs ?
I'm surprised at how lucky the U.S. has been in this regard. We really shouldn't take this too much for granted here.
I'm not an attorney, but a glance through the U.S. Trademark website clears up a few things.
The whole thing is whacked:
Lockheed Martin filed for a trademark on the name "B-24" for "Scale Model Drawings" pertaining to that name in 2001. I can't blame Turbosquid for bowing to a cease and desist order from a major corporation and the DMCA, even if they are completely off base - which they are. Even if completely wrong, Lockheed Martin has the resources to throw a battery of lawyers at Turbosquid and the ensuing litagation could potentially put them out of business. The quick way around this would be to simply call the 3d model "B24" or "B24 Liberator" or "Consolidated Liberator", titles which by the letter of the law Lockheed has no claim over. You can look up their patent and all the relevant papers on the US Trademark site (It's listed under "B-24", US Serial No: 76232526 ). It is utter BS that the DMCA would be called into play here and everyone should be raising hell about it. It's also pretty snakey and low that a major corporation would trademark a name created by a defunct competitor (Consolidated) regarding an aircraft that ended production 63 years ago. By the way, the trademark can be contested via the US site if anyone's feeling ambitious. I'd also be interested to find out exactly what the Patent Codes mean (IC 028, US 023, 024, 050, etc.)
My 10 cents
For the record, I did run this by our corporate attorney in our office and he gave me a concise breakdown on the differences between patents, trademarks, and copyrights. He also said the cease and desist order from Lockheed was complete BS and a typical example of a big corporation waving a big stick without a legal leg to stand on, just to scare the crap out of companies like Turbosquid. As I thought claiming a trademark infringent in this manner has no legal basis and could easily be circumvented regardless by calling the model "B24", or B-24 Liberator, etc. What surprises me is that Turbosquid's Attorney didn't respond as such to this right off the bat.
Ford is a different matter as they own the patents, trademarks and copyrights on the their product, though someone should respond to them and let them know that their competitors have no issue letting their 3d models in the marketplace.
in the spirit of "if this goes on", I wonder how far things will get pushed before those oppressed by phoney "copyright" grabs turn violent? If people can't afford whatever price justice is setting, they make their own.
Why was LockMart granted a trademark on B-24 for "scale model drawings" in the first place? People had been making and selling them for decades before LM were granted that trademark. By the same logic I could ask for a trademark on the term "TV" and send DMCA takedown orders to anyone selling their old televisions on craigslist.
nb. Of course the "Davis wing" was legitimately granted IP protection, although that patent ran out long long ago.