Don Stewart, an Alabama graphic artist, has been drawing "visual puns" for many years, including this picture of a VW Beetle composed entirely of insects. This particular image was created in 1992, so Don was surprised to hear quite recently from Volkswagen's lawyers. They demanded that he stop circulating the image in any way, shape, or form, and suggested that he tear the images out of the coffee table book he sells and send those images to Volkswagen.

But Don did not want to rip pages from his book and mail them to a group of attorneys. Instead, he contacted (PDF) his Senator. Why? Because Don believes that he was targeted by Volkswagen under a new bill passed by the House and currently in committee in the Senate. In his letter, he argues that Volkswagen and other large companies want to use the pedning legislation to prevent journalists and artists from exercising their long-standing rights to the "non-commerical" use of trademarked images.

The law is H.R. 683, the Trademark Dilution Revision Act of 2005, and it's been working up more people than just Don Stewart. An essay on stockphotographer.com (via Boing Boing) argues against the proposed law in violent terms, believing that the legislation would give nearly total control of trademarked words, symbols, and images to corporations, who could then prevent anyone they wish from using them, for whatever reason. How bad is the law?

"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... 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."

Yikes! Any law that would destroy fair use protections would certainly be a terrible piece of legislation, one whose effects would be far reaching and disastrous for consumers. To understand if this is indeed happening, let's compare the trademark law (the Lanham Act from 1946) as it currently stands to the new proposals set out in H.R. 863. Here are the types of fair use allowed for trademarks under section 43 of the Lanham Act.

(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark. (B) Noncommercial use of a mark. (C) All forms of news reporting and news commentary.

Note especially item B, the "non-commercial use" exception. This is a particular point of concern to Mr. Stewart, who points out in his letter that it has "been generally understood to protect artistic expression, even when the art is sold in a book, drawing, song or movie." Under the new law, however, the "non-commercial use" exception has been rewritten.

(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark. (B) Fair use of a famous mark by another person, other than as a designation of source for the person's goods or services, including for purposes of identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner. (C) All forms of news reporting and news commentary.

Clearly, then, the wild claims made above about eliminating "fair use... reportage, commentary, etc." don't hold up when you examine the bill. Fair use of trademarks in several different forms is explicitly allowed, as is all news reporting and commentary that feature such marks. On the other hand, Mr. Stewart is correct to point out that the "non-commercial use" exemption has been removed, which could indeed make it more difficult for an artist to paint a picture of flowers standing in a Coke bottle (an example he uses in his letter).

Lawyers for Volkswagen apparently assume the law will pass, and their interpretation of it seems to be that while criticism and parody of their brand is allowed, a positive and humorous representation of a Beetle is not. As Mr. Stewart asks rhetorically, "What is our country coming to when someone is liable for a lawsuit because they are being nice?" If the bill is passed, it will no doubt take several such court cases to figure out exactly where the boundaries lie. Though the bill is nowhere near as bad as the alarmists are suggesting, a first reading does suggest that it represents another small shift of power in the direction of corporate interests.