WWII Bomber: "Trademark Infringement"

Picture 5-62

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.

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.

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.