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FREE SPEECH AT RISK, again.

Written by Edward Greenberg
Wednesday, 25 January 2006

A few weeks ago I referenced a proposed new Trademark law formally entitled "HR 683 - the Trademark Dilution Revision Act". It passed in the House of Representatives and is under consideration by the Judiciary Committee.

Now stay with me, don't get bored. This is important.

The Act contains certain anti-speech aspects which will directly affect illustrators, photographers and others.

It will serve to eliminate the current protection for non-commercial speech currently contained in the Lanham Act. It will prevent businesses (artists)and consumers from invoking famous trademarks to explain or illustrate their discussion of public issues.

For example, using the phrase "Where's the Beef" could be actionable. Although you might use it in a non-commercial way, the (very) famous Wendy's slogan when used to comment might not be protected by the fair use exception.

The Act would give companies considerable leverage in preventing artists and photographers from employing their marks in images by claiming the mark is being "diluted". The bigger the company, the more famous the trademark, the easier it will be to prevent you guys from using it. National companies with highly recognizable marks would have more leverage than any single creator or small business and would easily outspend any of you to prevent your using their mark.

Exceptions for fair use, non-commercial use, reportage, commentary, etc. currently existing could disappear and would be no defense to claims of infringement of a registered or unregistered mark. Trade dress is often unregistered.

To see how this new legislation might operate, go to www.dsart.com/Gallery/VW_bug.htm. That illustration was created by Donald Stewart in 1992. Mr. Stewart has displayed the work to students in classes and used it as a teaching tool. The image has also been sold.

VW of America has threatened Mr. Stewart with litigation in anticipation of the new law. The Volkswagen Beetle is composed of bugs.
The illustration does not disparage VW in any way. It is lighthearted and whimsical. It clearly posts the VW marks.

I dare say most if not all of you, have created works which like Mr. Stewart's, are not disparaging and employ some recognizable mark somewhere in your image. A photo using a Hummer for example, to comment on the proliferation of gas guzzling SUVs could give GM/Hummer cause to prevent the publication of your image. Incidental, background use of a recognizable mark like a Coke can for example, could easily result in your prompt receipt of a lawyer's letter from a really big law firm representing a really, really big corporation.

As written, strong cases have/could be made against candidates who have used popular marks to comment on their opponents. This is not a right wing/left wing thing. It is a free speech, little guy against big guy thing. Your artistic freedom is at risk.

I urge all of you to write to Senator Arlen Specter, Chairman of the Senate Judiciary Committee, 711 Hart Building, Washington, DC 20510 to voice your opposition to this bill.

Mr. Stewart is ably represented by Paul Alan Levy, Esq. who is with Public Citizen Litigation Group, 1600-20th Street, NW Washington DC 20009 www.citizen.org/litigation. He has taken an active role in fighting this proposed legislation and deserves your vocal and written support.

This is your livelihood we are talking about here. Don't bitch about corporate coercion, do something about it. Send a letter or better, send a photograph accompanied by a short note to make your point. You guys get paid to create images to sell products and ideas get people's attention. Get Senator Specter's attention and write to your own Senator as well. The bad guys are betting heavy on your well earned reputation for apathy.