Followup to story about VW threat of litigation

[David Farber <dave () farber net>]

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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