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Trademark Infringement?
My 3D Model of a World War II B-24 Bomber is "trademark infringement"
according to Lockheed Martin and Turbo Squid.
UPDATE May 21 2008: Lockheed Martin has withdrawn it's claim of infringement against 3D artists. Many thanks to Corynne McSherry at the Electronic Frontier Foundation for all her help with resolving this problem. Thanks also to Turbo Squid for their cooperation.
Electronic Frontier Foundation, B-24 Liberated!
B-24 3D Model at Turbo Squid
March 21 2008. The 3D Model Stock site Turbo Squid claims that my 3D model of a Consolidated B-24 Bomber from World War II is a "trademark infringement" of "rights holder" Lockheed Martin. This incorrect use of DMCA has been going on at Turbo Squid for years. At first, this problem did not effect me and I did nothing. That was a mistake. Below is an article I've written which may be used in it's entirety under Creative Commons.
First They Came for the Fords, and I did Nothing.
By John MacNeill
3D models, three-dimentional computer sculptures of objects both real and imagined, are the lifeblood of the computer graphics industry. Renderings generated from these models appear in movies, television, print, and computer games. They are everywhere. Computer graphic (CG) artists create these models using a variety of software applications and then the completed models can be used over and over for many different purposes. Stock models can be purchased to speed up the production process, much as designers buy stock photography, and in both cases it is less expensive than creating new work from scratch. Also like stock photography, there are businesses that specialize in selling stock models on commission. Typically a company will take up to fifty percent of the fee for each sale.
In 2003 the popular 3D stock website Turbo Squid began removing from its inventory all models of Ford cars and trucks. The Ford Motor Company had served Turbo Squid with a DMCA takedown order. DMCA, the Digital Millennium Copyright Act, is used to address allegations of online copyright infringement, most commonly file sharing of movies and music. It's unclear how the DMCA could apply to 3D models of Ford cars and trucks made by 3D artists. The intent of copyright law is "promoting the useful arts and sciences," but now Ford was using the DMCA to force Turbo Squid to remove 3D sculptures made by artists because of the subject of the artwork. Ford was not claiming to have created the artwork. This left the artists in a very difficult position, mostly freelancers, none of whom make the kind of money to challenge this action in the courts. Especially against a giant corporation like the Ford Motor Company.
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.
Turbo Squid is undoubtedly the largest and most popular stock model business in the world, but competition is inevitable. A number of smaller companies have recently sprung up, all of which are currently allowing models of brands that are on the Turbo Squid banned list. When asked about this issue one such company replied that they had not yet had any requests from manufacturers for a takedown, and that they would have to carefully review the legal basis for such a request.
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.
John MacNeill is a CG artist living in Massachusetts. His work has appeared in many popular magazines and newspapers.
U.S. Patent and Trademark Office
U.S. Copyright Office
UPDATE Turbo Squid's official comment on the issue:
Turbo Squid solely provides infrastructure for vendors around the globe to post their models and creations for sale. By accepting our End User License Agreement when vendors sign up, they warrant that they have all rights to the models and other digital assets they sell. Turbo Squid is a Digital Millennium Copyright Act (DMCA) -compliant operation, and when we receive valid takedown notices from (c) or TM owners we act accordingly, and remove any infringing models brought to our attention. That said, because of how the DMCA Safe Harbor provision works, and because of the realities any large open marketplace, we do not pro-actively police TM infringement to any degree that Turbo Squid might guarantee that any particular model is not infringing. We can only work in a responsive mode. The burden to not infringe falls to Turbo Squid's vendors, the individuals who create these assets and place them for sale on our site.