[Ecommerce] Photographers on anti speech and anti creators bill HR 683

[Manon Ress]

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Find text of Bill:
http://thomas.loc.gov/cgi-bin/cpquery/R?cp109:FLD010:@1(hr023)

http://www.stockphotographer.info/content/view/77/98/

Important New Legislation Proposal

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.
To download a PDF of Don Stewart's letter to Senator Sessions, click
here .

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Edward C. Greenberg
Erica Galinski
Greenberg & Reicher, LLP
50 East 42nd St. 17th floor
New York, NY 10017
212.697.8777
ecglaw@aol.com



************************************************
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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