posted this on January 10, 2012 10:10
The material contained in this document is for informational purposes only. This does not constitute legal advice. The information in this document is deliberately simplified for educational and informational purposes. TurboSquid encourages you to seek the advice of an attorney to discuss any intellectual property concepts.
What is a trademark?
A trademark is a brand identifier – a distinctive word, symbol or other indicator used by individuals and companies to identify their products or services and to distinguish them from those of their competitors. Put simply, a trademark indicates the source of the product or service.
The most common type of trademark is a name, such as Microsoft or Mercedes-Benz. But symbols (such as the Nike swoosh), slogans (like Coke's “It's the Real Thing”), and even distinctive sounds (like the Windows start-up sound) can be trademarks.
Trademarks are protected by law, just as copyrights are. The owners of trademarks own the exclusive rights to use them, and it is against the law to use trademarks without permission.
What is a trade dress?
Trade dress is a form of intellectual property that is similar to and related to trademark and is also protected by law.
Trade dress generally refers to characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify to the consumer or potential consumer the company that makes or distributes the product.
Trade dress can be a shape, such as the distinctive and recognizable forms of the Coca-Cola bottle, Bose speakers, or a Ferrari. It can be a color, like the brown of UPS trucks and uniforms or the blue of a Tiffany’s jewelry box. It can even be the decorative theme in a chain restaurant.
What is “Fair Use” in Trademark Law?
United States trademark law includes a fair use defense, sometimes called “trademark fair use” to differentiate it from the fair use doctrine in copyright, which is much better known. The intent of both fair use doctrines is to balance the rights and protections granted by copyright and trademark law with the First Amendment guarantees of Free Speech.
It’s permissible, for example, to refer to the actual trademarked product or its source by its trademarked name. In this way, the law protects product criticism and analysis. But using someone’s trademark for promotional or advertising use is not allowed without permission.
For 3D artists, this is relevant when the 3D model depicts a trademark or other materials protected under trademark and trade dress law. Models that depict trademarked or copyrighted materials and/or designs may be sold under an Editorial License, which allows a news organization buyer of the model to use it for limited, non-commercial, news-related purposes.
The safest position, however, is that artists in our community should never rely on Fair Use. Even in cases where the Fair Use doctrine truly and appropriately applies, it is not permission to use protected intellectual property. It is simply a defense to any copyright infringement claims that may result from that use. Our goal for our artists is to stay out of legal cases, not to win them several years and hundreds of thousands of dollars later with legal arguments.
What is an Editorial License?
The Editorial License means there are restrictions on the use of the models in addition to those under our Standard Royalty Free License.
TurboSquid does not “clear” or license the rights to any content. Objects depicted in some 3D models may not have been “cleared,” which means that rights holders may or may not have authorized the use of certain protected elements of their intellectual property depicted in the model. In copyright and trademark law, however, the doctrine of “Fair Use” allows for some limited use of protected materials without permission from the rights holders. Using protected materials for news-related purposes, for example, falls under Fair Use and Constitutional First Amendment protection.
The Editorial License allows the sale of models that depict protected material for a very limited news-related purpose. Buyers of those models are authorized to use them for news-related purposes only, such as news publications, television news programs and certain types of news-related films. Still, the buyer of a model under Editorial License is ultimately responsible for any use they make of model. TurboSquid does not clear any content or make any guarantees about intellectual property rights associated with any content.
Why are many models that depict a copyrighted design, trademarked logo or other protected items at TurboSquid sold under an Editorial License?
If a 3D model is being sold under an Editorial License on TurboSquid, that means either (1) that we have received a Takedown Notice from the rights holders of the objects depicted in the model, and they have requested that we restrict the sale of that model or (2) the artist posting the model knows there is third-party content in the model and is actively posting it under the Editorial License.
We follow the reasonable procedures of the Digital Millennium Copyright Act of 1998 (DMCA) and honor Takedown Notices. In many cases, the publishers of the models that were taken off the site chose to republish them under an Editorial License so they can still be sold and used only for news-related purposes.
But I’ve seen models on TurboSquid that depict trademarked or copyrighted materials, and they are being sold under a Standard Royalty License. Why are those not being sold under Editorial License only?
TurboSquid never knowingly has any model for sale that contains third-party IP rights (except for content under the Editorial License).
In some cases, TurboSquid has received Takedown Notices from some rights holders who notified us that models depicting their intellectual property infringed on their rights and asked us to remove those models. We always comply with the law and remove that content.
But many companies recognize that having 3D models of their products available to the public is good for their business. They have the same rights to their trademarks as the companies who have sent us Takedown Notices, but they have not chosen to restrict or have us restrict the publishing and sales of models that depict their intellectual property. In those cases they have not sent us a Takedown Notice, so we are not aware of their rights, and we have therefore not removed those models from the site.
So if a model is being sold under a Standard Royalty Free license, does that mean I am safe to use it for anything – even commercial projects?
No. TurboSquid provides infrastructure for graphic artists around the world to post their models and creations for sale, but we do not screen or clear any content. When artists join TurboSquid, they warrant that they have all rights to the models and other digital assets they sell. TurboSquid does not license any third-party intellectual property, and we don't make any guarantees about intellectual property rights associated with a model.
We cannot provide any legal guidance or advice about whether a specific use of any specific model, whether it is under the Editorial License or under the Standard License, would be legal. If you have any questions or concerns about that issue, please consult with a lawyer.