I’m a supporter of intellectual property rights in general, but cases like this make me very angry, because they bring the entire notion of intellectual property into disrepute. Not only is it counterproductive – VW has undoubtedly got more bad publicity already than this merited – it’s illustrative of confusion in the law and an attempt by companies to extend the concepts of copyright and – importantly – trademarking.
First of all, Boing Boing’s title is wrong: the object that VW has is nothing to do with copyright. But, it turns out, VW has been permitted in many countries around the world (certainly in Canada (PDF download) and I assume in the US) to make the classic Beetle design a trademark.
What’s the difference, and why does it matter? Generally, copyright protects creation of artistic, literary, or scientific work: this writing, for example, is copyright by me and you can only use it under licenses that I allow, except for limited purposes (criticism, review, and a few others). The original designs of a Beetle are copyright, but not the cars themselves once they’re on the public roads. That’s why you can, for example, take a picture of a street scene without seeking the permission of the manufacturer of every car in the road – which is what you’d need to do if the image of a car was copyright.
Companies hate this, for several reasons. The first is that it means that people can take pictures of their “iconic” designs and use them on T shirts and other products – something that they see as robbing them of potential money. It also means that other manufacturers can copy the design, as long as they don’t copy from the original blueprints. This is a form of reverse engineering of goods, and it’s generally a good thing.
So, in order to get around this, companies have sought other methods – primarily, by applying to have the image of a car registered as a trademark. Trademarks are different from copyrights: they can be words, sets of words, an image, or a representation of a product and are designed to allow companies to identify themselves uniquely, and let the consumer know who a product was made by. They’re protected to prevent one company trading on another’s good reputation by passing off its goods as theirs. In other words, they’re designed as a method of protecting the consumer, as much as the manufacturer. One example is the famous red triangle of Bass beer, which is Englands – and possibly the world’s – oldest trademark.
Registering an design as a trademark gives you some key advantages. First, trademark law is more flexible than copyright law, which has very strict provisions on what’s actually copyrighted (the plans for the original Beetle are copyright: it’s image is not). Secondly, unlike copyrights, trademarks have no fixed term. You simply reregister them every few years and – if you do – they’re yours for ever.
Normally, when attempting to turn a copyright into a trademark, companies simplify a design to make it more iconic, and turn it into a “maker’s mark”. For example, Mickey Mouse’s ears in the iconic shape are a trademark of Disney.
However, the way that VW is using trademark law is completely different to this, as it’s claim is that any representation of the Beetle shape – no matter how different – is a violation of its trademark. This looks like nonsense to me. Not only is the artist not attempting to pass off his work as VW’s (how could he? It’s a picture, not a car), the images are very different to the trademark VW images, thanks to their use of insects. It’s as if Bass sued someone for using a blue triangle of the same proportions on a t shirt.