Followup to story about VW threat of litigation

[David Farber <dave () farber net>]

Begin forwarded message:

From: Michael Kende <Michael.Kende () analysys com>
Date: January 19, 2006 2:47:37 PM EST
To: Paul Levy <plevy () citizen org>
Cc: dave () farber net
Subject: FW: [IP] Followup to story about VW threat of litigation


Paul,

Thanks for passing this on - I would have had the same reaction as
Mr.Stewart.

Just as a point of curiosity however, does the First Amendment cover the
rights in this case, where the government is not trying to restrict
speech?  In other words, how does the First Amendment apply to cases
between private parties (artist/trademark holder; employee/employer,
etc.).

Thanks,

Michael

-----Original Message-----
From: David Farber [mailto:dave () farber net]
Sent: Thursday, January 19, 2006 2:07 PM
To: ip () v2 listbox com
Subject: [IP] Followup to story about VW threat of litigation



Begin forwarded message:

From: Paul Levy <plevy () citizen org>
Date: January 19, 2006 2:01:10 PM EST
To: dave () farber net
Cc: jdecker7 () woh rr com
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 () bellsouth net> 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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