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
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Matt Wisdom
Chief Executive Officer
TurboSquid