Updated: 11/21/08
To the owner of DesktopNexus.com—a site dedicated to sharing user-submitted desktop wallpaper—it sounded as if the attorney from the Toyota Motor Corporation on the phone was reading from a script. He was basically repeating the same demand that Toyota had made over the course of six months in several emails: The car giant wanted Harry Maugans to remove all images on his site containing a Toyota, Lexus and Scion gallery.
What wasn’t clear—because Toyota did not submit a Digital Millennium Copyright Act takedown notification—was whether Toyota was claiming ownership of any image containing one of their cars. That radical claim would be enough to shivers down the spine of any gearhead.
“I asked them for all the information that would be included in a DMCA request, including who owned the image,” Maugans told Wired.com. The attorney, who identified himself as Garrett Biggs, told Maugans that if he wanted that specific information, he would have to pay for it to be gathered.
No such payment has been made, and Maugans hasn’t budged. “I haven't deleted a single Toyota, Lexus, or Scion image since any of this started.”
Maugans’ stand seems ballsy when you consider the size and legal power of a massive conglomerate like Toyota. Yet Fred von Lohmann, Senior Intellectual Property Attorney at the Electronic Frontier Foundation, feels Maugans' refusal to take down the images is justified.
“He doesn’t have to respond,” von Lohmann told Wired.com. “Toyota is on shaky ground here.”
Since Toyota is not in the business of selling desktop wallpapers, von Lohmann sees that Toyota has no grounds to request that the images be removed unless they were created or owned by the company itself. “Toyota is selling cars, not car designs. It’s a very thin copyright.”
As a site filled with user submissions, von Lohmann feels that DesktopNexus definitely fits into the class of sites—like
YouTube—protected by the DMCA, which allows for a safe harbor for site owners as long as they comply with proper takedown requests from copyright owners.
And ownership of the images is definitely the key issue in this controversy. “I showed him a couple of images that were definitely not
Toyota promotional photos, and the attorney wouldn’t say Toyota owned them,” Maugans said.
Claiming copyright ownership is serious business. If Toyota or anyone who makes a takedown request claims ownership of any image or media that isn’t truly theirs, they can be liable for perjury.
“The message here is we can make your life very difficult,” von Lohmann told us. He feels that attempts like this to monitor fan activity are part of a larger effort by car companies. While carmakers love to stir up “viral” conversation about their models, they’re also very worried that the discussion can get out of hand.
Von Lohmann points to the attempt by Ford a few years ago to force sites with Mustang in their name to find new urls as an example of overreaching by automakers. “MacWorld has a right to have Mac in its name,” von Lohmann said, and MustangHeaven.com has the right to use
Mustang in its name
And things aren’t going well for Toyota—and not just when it comes to sales. Since news about Toyota’s requests came out, users have been submitting some less than flattering images of Toyotas that no one would claim were official promotional images.
Maugans' reluctance to bend immediately to a request from the lawyer of a multi-billion dollar corporation shows some insulation against the chilling effects of potentially unwarranted rights claims. Yet other site owners who aren’t aware of the ins-and-outs of DMCA notifications may have taken down the content immediately, shuddering the kind of hardcore fandom that’s at the core of using a
Scion or a Lexus as your desktop wallpaper.
“These wallpapers are great advertisements for Toyota,” said Maugans who insists that he’s definitely willing to follow the law. “I want to make sure this is done correctly,” he said.
So the ball is in your court, Toyota. Submit a complete DMCA takedown notification, or let the poor guy be.
Update: Response from Toyota to DesktopNexus
The recent request Toyota made to have certain photos of Toyota vehicles removed from the public wallpaper site, DesktopNexus, was the result of an internal miscommunication.
To protect the legal rights and agreements we have with the photographers we hire, we ask that the photographs not be used for direct consumer advertising, sales brochures and the like.
If people wish to post their own photos of one of their own vehicles, that's their right. In fact, we're pleased that people would want to show their Toyota vehicles to the world.
So have at it. Consider the wallpapers on DesktopNexus to be fair game for personal use.
Please let your users know that we offer a sincere apology to the DesktopNexus site and its users for any inconvenience or disruption this miscommunication may have caused.
Thanks for your understanding,
Scott DeYager
Toyota Motor Sales, U.S.A., Inc.
Corporate Communications
Photo by DesktopNexus user armindillo.
