[IP] Followup to story about VW threat of litigation
Begin forwarded message:
From: Paul Levy <plevy@xxxxxxxxxxx>
Date: January 19, 2006 2:01:10 PM EST
To: dave@xxxxxxxxxx
Cc: jdecker7@xxxxxxxxxx
Subject: Followup to story about VW threat of litigation
Thanks to your posting of the note from Judy Decker, Mr. Stewart has
learned more about his legal rights and has told VW and its law firm
to go jump in a lake.
Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation
"D S Art" <dsart@xxxxxxxxxxxxx> 1/19/2006 12:19 PM >>>
BY E-MAIL & TELECOPIER: (801) 366-7706
January 19, 2006
Gregory D. Phillips, Esquire
Jared L. Cherry, Esquire
Howard, Phillips & Andersen, P.C.
Suite 300
560 East 200 South
Salt Lake City, Utah 84102
Gentlemen:
I write in further response to your January 6, 2006 letter to me,
claiming that I have violated the trademark rights of Volkswagen of
America by creating and distributing a picture of the VW Bug that is
composed of insect parts, commenting upon the Volkswagen Beetle. You
demanded that I stop drawing such pictures, that I destroy all
existing drawings or send them to you, and that I pay damages for my
past creation and sale of such pictures.
Although you cited several cases showing that automobile
manufacturers can have trademark rights in the shapes of their
products, and that Volkswagen in particular has trademark rights in
the name and shape of the classic VW beetle, I was struck by the fact
that none of the cases that you cited to me showed that Volkswagen
has had any success in preventing artists from portraying the Beetle
in their works. Given the very widespread use of such a significant
cultural icon as the classic Beetle in other works of art, I cannot
help wondering whether you are trying to create some new rights on
your part that have not before been recognized, not to speak of
suppressing my own First Amendment right to comment on your product.
Indeed, although I do sell my drawings, you must agree that courts in
trademark cases have treated artistic expression very differently
than the sale of widgets, despite the fact that art is sold in
commerce. If you have any court decisions suppressing art that I
should consider in assessing my situation, I'd be pleased to review
them with my counsel at Public Citizen Litigation Group, Paul Alan
Levy. In fact, Mr. Levy has tried to contact you to discuss your
demands, but you have not yet returned his telephone call. You can
reach Mr. Levy at the number he left for you, 202-588-1000.
Moreover, I find it very difficult to understand how your client
could prevail even in traditional trademark terms. Surely nobody
would be confused about whether my drawings were published by
Volkswagen, or sponsored by Volkswagen. They are obviously a
commentary on your client's well-known product and image, and not a
product of your client. Nor do I see a tenable claim for dilution,
not only because my drawings are fair use, but also because the "non-
commercial use" exception extends to the limit of constitutionally
protected non-commercial speech and because artistic expression, even
if "sold," is prototypical non-commercial speech under the First
Amendment. Finally, your claims against me suffer from serious
timeliness problems, given the fact that I have first drew this
picture nearly fifteen years ago and have been selling copies ever
since, and I have had it on my web site for more than seven years.
Accordingly, I am not prepared to stop displaying or selling my
drawings, or to pay you damages, or to destroy the existing stock of
the works. Indeed, I am putting the drawings back on my web site. I
am, however, prepared to enter into a licensing agreement in which
you recognize my right to create and distribute my drawings without
restriction, if that would allow you to withdraw your censorship
demands.
Sincerely yours,
Donald B. Stewart
The DS Art Studio Gallery
2805 Crescent Avenue
Homewood, AL 35209
1-800-372-7864
www.dsart.com
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