Toyota Demands Removal of Fan Wallpapers 594
An anonymous reader writes "TorrentFreak reports that Toyota's lawyers have recently contacted computer wallpaper site Desktop Nexus in a blatant example of DMCA abuse. Toyota issued a blanket request to demand the immediate removal of all member-uploaded wallpapers featuring a Toyota, Lexus, or Scion vehicle (citing copyright violation), regardless of whether Toyota legally holds the copyright to the photos or not. When site owner Harry Maugans requested clarification on exactly which wallpapers were copyrighted by Toyota, he was told that for them to cite specifics (in order to file proper DMCA Takedown Notices), they would invoice Desktop Nexus for their labor."
Will Fail (Score:5, Informative)
I remember reading about similar "cases" in the past, although they were not DMCA related. Anyway, the courts threw out the plaintiffs because the items being photographed were not considered "art". Despite what Toyota thinks, a mass-produced automobile is not art. It wasn't created as art. It is not unique. And it wasn't sold as art.
Toyota could only be right if the images they specify were TAKEN BY TOYOTA. And that could be difficult to prove. If they claim ALL the images on the site belong to them and the operators of the site KNOW that some/all/most of the pictures were not taken by Toyota, then I think the whole request is bogus.
Yet another example of abuse of the legal system. If it ever makes it to court, I would hope the site operators counter-sue and win BIG. But I think that is the whole point- such cases rarely make it to court, big businesses just use the DMCA as a weapon to scare smaller entities into complying.
More likely a trademark infringement notice (Score:5, Informative)
Re:Will Fail (Score:5, Informative)
Despite what Toyota thinks, a mass-produced automobile is not art. It wasn't created as art. It is not unique. And it wasn't sold as art.
What has that got to do with anything?
Mass production doesn't matter, nor does uniqueness. While some, including myself, might want authorial intention to be relevant, it currently doesn't matter. And what it was sold as doesn't matter.
What it boils down to is that the manufacturer can claim that the parts of the car photographed are copyrighted works, most likely sculptural works (most cars don't seem to come from the manufacturer with pictures painted on them). The counterargument is that copyright excludes the useful portions of sculptural works, and where the useful and non-useful portions are inseparable, the entire work is excluded. This is the utility doctrine. There are numerous tests for determining whether or not various features are separable, most likely because no one has ever managed to come up with a sufficiently good test for people to rally around, and it's all largely based on rationalizing gut instinct.
One noteworthy example of the utility doctrine being used was in Brandir [altlaw.org], where the creator of those undulating bike racks [ribbonrack.net] tried to get a copyright because he had forgotten to get any kind of patent before the deadline for applying for a patent expired. IIRC, he lost, and anyone can make those racks.
Re:In a related move Toyoda.... (Score:2, Informative)
Not entirely. The Japanese characters for "Toyota" and "Toyoda" are identical, and the pronunciation of the soft "da" or hard "ta" at the end do not have specific rules as to which is correct. (Note that this pertains to the family name only, as Toyota does not have a Kanji, or Chinese character if you will, name. It uses the phonetic Japanese Kana alphabet instead.)
The deal is that the company name comes from the founder's last name "Toyoda", but when put into a a Kana (phonetic alphabet) logo the trailing marks which give it the soft "da" sound looked a bit awkward. Since the Japanese take the pronunciation of their last names rather seriously (they WILL correct you if you mis-read the Kanji character, which does not specify soft or hard pronunciations as seen in this case), so it is not by surprise that the person that changed the name was not born into the family. (He was "adopted", married to Toyoda-san's daughter and adopted into the family roster in order to keep the Toyoda name heritage continued. Another typically Japanese thing to do.)
The 8 strokes part is more of an afterthought. It's just a cute extra to tag onto any naming scheme.
not a DMCA notice (Score:5, Informative)
At least not according to the article [torrentfreak.com]:
Re:Whats the point...?-Free ads. (Score:5, Informative)
Still, until Toyota says "We own the copyright on image 11684.jpg, 11689.jpg" and mentioning other image explicitly on the website, all the site owner has to say is:
"We were not served a proper DMCA take-down notice, and as such we were unable to fill the request."
The judge would look at the invoice and throw the thing out. The DMCA notice has to be done in writing, be specific, and allow for a response if the copyright is being questioned or challenged. None of this is happening, and it would be Toyota that would have egg on its face if they really tried to follow through with this tactic.
Still, as far as the free advertising is concerned, once copyright is clearly established and can be legitimately claimed by Toyota, proper notices have been filed and the law has been followed, the images have to go.
Unless.... you are claiming "fair-use" privileges for the use of the image of the vehicle.... so the whole thing starts all over again in another round of legal maneuvering. Fair-use here might actually be valid, depending on who took the image and in what context it is being used.
Lawyers'jokes write themselves theese days. (Score:5, Informative)
We see this nonsence all the time. Compagny lawyers who think they have a case completely ignoring if it will benefit or hurt their client to do so. More often than not, resorting to legal-bullying of ordinary people unwilfully brushing on your precious IP, is a terrible way to make a brand.
Every time I see the name (beginning with the letter D) of a very large maker of animated movies - the very first thing I think about, is how back in 2003 their legal vigilantes bullied a local musical into changing it's name from Rubber-Tarzan(translated) into Rubber-T. The name of the musical is the same as the title of the 1975 chilrens book that it's based on - while apparently the name Tarzan somehow became trademarked in 1999.
Legal experts say [insert name of litigous company here] would most likely loose the case - but the musical does't have the money to go to court, so they had to bend. It's impossible to imagine how [D.....] was damaged by a musical performance of a childrens book from 1975 not related to the animated movie - but their brand is irreparably damaged in the minds of countled danish parents (read prime costumers).
If you are a 500 pound gorilla, you have to be very nice to be viewed as likeable.
Re:Whats the point...? Trademarks. (Score:4, Informative)
Toyota is probably trying to protect its trademarks.
You know, I'm pretty sure that Toyota's legal department might have actually gone to law school, and thus would understand the difference between copyright and trademark.
Re:In a related move Toyoda.... (Score:1, Informative)
Also, Toyoda is a conjugation of the words for "War Machine"..
Actually the Kanji for his name (Toyoda) means fertile rice field. It's not anything close to "war machine", no matter how hard you try.
This issue is discussed in a Lessig book (Score:5, Informative)
In one of his books, Lawrence Lessig discusses how manufacturers of furniture and other goods have been claiming copyright protection for their goods if they appear in movies. Moviemakers have been needing to go through an elaborate process of copyright clearance for objects that appear in their movie scenes. This has applied even if the movie scene is intended to be of someone's room as it is in real life.
This claim by Toyota is the same kind of thing. It looks like they are claiming copyright protection for the appearance of their cars if used in something that is reproduced. Presumably a police car chase or a major accident, if the car involved is a Toyota product, would require copyright clearance by Toyota to be shown on TV.
This is carrying the law to its ridiculous extreme.
Re:its just a car. (Score:5, Informative)
But I thought about it for a few seconds, and if the onus is on the infringer to make sure that they are not infringing, then it makes sense for them to be billed.
It would if that were the case, but it isn't.
Toyota's begging for a wrongful prosecution case in this one. They really don't have a leg to stand on, saying they'd invoice for identifying their "copyrighted" works. And here's why:
* Copyright probably doesn't apply. If I take a picture of my car (an American-made Chevrolet, FWIW), then the copyright of the photograph belongs to ME. And even if copyright DOES apply (wallpaper made from images made by Toyota), the DMCA still requires Toyota to identify which images are in the wrong. "All those that contain Toyotas" would require the website to review each image -- which the DMCA excludes them from having to do, by way of requiring them to remove any so-identified image.
* Patent law -- where you really do have to work to avoid infringement! -- doesn't apply to photographs. You can describe in great detail anything protected by patent -- you just can't make/use that thing without the patent holder's permission.
* Trademark law -- which, again, DOES require you to do some legwork -- only protects against diluting uses. Fan-created walpapers incorporating Toyoyta's trademarks as a way of expressing preference for Toyoyta? At best, they can force a disclaimer on them.
(Note: this is not Legal Advice. If Toyota comes after YOU, get a lawyer to determine the specifics. You might have entered into a contract, live in a strange country, the laws might have changed, or I could be completely wrong.)
Yeah, the notice is defective... (Score:4, Informative)
IANAL, but I agree with you that the notice is defective and that they shouldn't be under any obligation due to it (nor should they be obligated by any "invoice" Toyota sends).
Frankly, I would get a real lawyer to tell them off, but it couldn't hurt to refer them to the reply given in Arkell vs Pressdam [livejournal.com].
Re:Lawyers'jokes write themselves theese days. (Score:3, Informative)
Legal experts say [DISNEY] would most likely loose the case - but the musical does't have the money to go to court
1: you DO realize that libel & slander charges would require DISNEY to prove that you don't believe what you're saying, and that DISNEY can't use trademark law to keep you from using their name to refer to them, right?
2: Yes, you do have the money to go to court. Call your state bar association. Find a lawyer in the community. Talk to the judge. Most lawyers are required a certain % of their time as pro bono cases, they may take it on retainer if you decide to sue Disney (for harassment, wrongful prosecution, etc.), and if they don't, a judge can always point to one and say "take this case."
If you can't afford to do something if you might wind up in court, the you can't afford to do that thing. At the very least, the manager of the play should be able to tell Disney, "I think I'm in the right, but if you're so convinced let's go talk to a judge about it."
Re:its just a car. (Score:4, Informative)
"why do these things always happen like come on its a car."
Could you please try some punctuation? It took me way too long to find out what you really were trying to say. Also, if it is a car, then the big company that makes the car wants to protect just everything about it.
Anyway, learn the power of punctuation, Luke. Try this sentence next time:
"Why do these things always happen? Like, come on, it's a car!"
If people can't understand what you are trying to say, isn't that something you should fix?
Re:its just a car. (Score:5, Informative)
A few points:
1. The DMCA states the copyright holder has to generate the list.
2. There is no infringer. There is an alleged infringer. Forcing the alleged infringer to do the work requires a presumption of guilt.
3. In this particular case, the infringer doesn't even come into it. They are trying to bill the safe harbor.
Of course, per TFA, Toyota hasn't made this a DMCA case. They haven't really made any claims at all, just a demand that he remove any images of these vehicles.
Re:In a related move Toyoda.... (Score:2, Informative)
You'd be right if he was speaking American. He's not; he's speaking English.
Re:its just a car. (Score:2, Informative)
Actually, the crash test data for the SW2 is not bad at all, and in fact, better than the Yaris, with the possible exception of a (highly unlikely for a small, low slung wagon) rollover. Take a look for yourself:
http://www.internetautoguide.com/crash-tests/09-int/1999/saturn/s-series/index.html [internetautoguide.com]
http://www.internetautoguide.com/crash-tests/99-int/2008/toyota/yaris/liftback-hatchback/3005/index.html [internetautoguide.com]
I get better gas mileage than the Yaris, too. I'm up over 32 mpg on the current tank, and half of that driving has been city.
The SW2 is plenty comfortable to drive. I've been driving for 24 years - in several VW bugs and vans, Plymouths (Horizon and LeBaron), Honda Accord, Mazda 323 Wagon, Toyota 4Runner, small Ford pickup - and those are just vehicles I've owned. The SW2 is not an uncomfortable car, at all, based on the dataset I have. ;)
As far as emissions, I have no idea if it would meet laws everywhere, but it probably wouldn't, in California, since it *is* a 10 year old car. Where I am there aren't any emission tests. But I am sure it is at least as efficient/clean as 50% of what I see driving around, so I don't really see that as much of an issue, given all of the other factors.
Re:its just a car. (Score:3, Informative)
Try this sentence next time: "Why do these things always happen? Like, come on, it's a car!"
How about shortening the second sentence to just "It's a car!". No need to have both English and AOL punctuation in the same sentence.
Re:just wow (Score:3, Informative)
A key difference though is the photos of the cars were put into a calendar for sale.
Eventually Ford compromised, saying they could use the photos of their cars, just could not use the Ford logos, as they are trademarks.
Re:its just a car. (Score:1, Informative)
The car that ran into you took most of the damage because of the crumple zones in the front -- this is by design. Her car acted exactly as it was supposed to in a rear-end scenario.
Re:its just a car. (Score:3, Informative)
All I'm saying is that in a situation where an infringer should be the one to do extra work to make sure they are not infringing, that it makes sense for the rights owner to bill the infringer for a comprehensive list of infringements.
Agreed but as I pointed out the site owner isn't the infringer. It was the poeple who posted the content to the site. The DMCA gives safe haven to owners of such sites as long as they do not post the content themselves.
Re:its just a car. (Score:3, Informative)
Sure, but the host isn't the alleged infringer in the first place, and the DMCA offers a safe harbor mechanism to protect the host, as well as offering a remedy to the company who's rights were infringed upon.
My guess is that the complainer doesn't want to file DMCA complaints because the complaint is made under penalty of perjury and they know that the copyright ownership belongs to the photographer, so claiming to own the copyright would expose them to perjury charges.
Start by contacting Scion... (Score:3, Informative)
Scion had readily available contacts and generally respond very quickly.
That's where I would (and did) start.
I recommend calling to start with and following up in writing.
I suspect this can be resolved very quickly (by corporate reeling their over-eager lawyers in).
Tomas
ScionLife.com
Re:Start by contacting Scion... (Score:4, Informative)
I contacted Toyota through their website (after a forced registration.) I'm assuming it will all go to the same legal department, but if not, I guess I should fire one off to Scion. Here's hoping they don't make me register again.
I gave them three options in my mail concerning how this can play out:
1. They can purchase my work so that they may hold TRUE claim over ownership, for the fee of $250,000 USD.
2. I can organize a class-action lawsuit of every Scion/Toyota/Lexus owner on that site and burn their 23bn market value to hell with a massive DMCA complaint.
3. They can take me to court and I will turn this into a DMCA violation lawsuit.
Wonder which option they'll pick.
Re:its just a car. (Score:2, Informative)
Having to think about your gear makes you think about your speed and generally keeps you more focussed on the fact that you're driving a big chunk of metal around.
Most cars here in England are manual, and we have more than our share of people driving round in a doze. Trust me, a manual garbox != focus on driving.
Re:Start by contacting Scion... (Score:4, Informative)
In #1, you requested an exorbitant sum for a copyrighted work. Thus you could be accused of acting in bad faith. If you were actually found in the wrong, you could also be accused of extortion.
#2 is again just extortion, and you clearly just don't know what you're talking about. What would be the subject of this "massive DMCA complaint" that you are going to file? What content has Toyota posted that infringes on your copyright that would allow you to issue them (or rather, their service provider) a DMCA takedown notice?
What does #3 even mean? It appears that Toyota hasn't even officially issued a DMCA takedown notice, so... what "DMCA violation" would you accuse them of?
I disagree with what Toyota is doing just like most people here, but you're not really helping...