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Bosley Bobbers is a maker of fine bobble head dolls. They maintain a number of political caricatures in their catalog, including such favorites as Tom Daschle, Laura Bush, Tom Delay (with opposition smashing hammer), a Dean, Kerry and Clark 3-some and the governator himself, Arnold Schwarzenegger.
Schwarzenegger's lawyer (Martin Singer of Lavely & Singer) has sent a cease and desist letter to Bosley Bobbers, claiming that the bobblehead caricatures violate Arnold's rights of publicity under California's extraordinarily broad rights of publicity law, California Civil Code Sec. 3344. The Smoking Gun has the C&D letter: Schwarzenegger Threatens Lawsuit over Bobblehead Doll. I'm no fan of the rights of publicity law, which I think gives Hollywood actors far too much control over their image, but this is ridiculous! Governor Schwarzenegger has a right not to be caricatured?!? Give me a break. He should apologize just for threatening such a lawsuit. But it gets worse.
In the last paragraph of the C&D, the governor's lawyer claims that:
This is a confidential legal notice and may not be published, in whole or in part. Any republishing or dissemination of same, including but not limited to the posting of the contents hereof on the Internet, shall constitute a copyright infringement and will subject the re-publisher(s) to civil liability for such actions.
Yeah, right. I dare them to take me to court for publishing that. Lawyers really tork me off sometimes. Thank god for websites like Chilling Effects.
There is copyright in the letter, it is owned by the law firm, and they can claim copyring infringement.
Firstly, what's your defence?
Secondly, are you suggesting on ethical grounds that it's "okay" to leak and republish material of a commercially confidential nature?Permalink to Comment
When you threaten to sue me, that is not material of a commercially confidential nature. There is a very clear fair use defense for publishing such a letter.Permalink to Comment
Martin Singer is a specialist in this kind of harrassment. He came after me once.Permalink to Comment
I don't think you have quoted enough to cause a problem, but in the case of smoking gun / etc, how do you think they can justify fair use ? Some sort of public interest defence ?
Secondly, the reason for the statement they put on the letter is entirely to cope with this sort of situation: because such a statement makes it obvious that reproducing the letter is doing it wilfully and intentionally.
I mean, this sort of story is "interesting", but I fail to see how some claim to fair use overrides the need for commercial confidentiality: otherwise it would open up the gates to a defence where you could fair use any confidential material related to a well known figure. That just doesn't sound right.
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Among other things, the whole letter is clearly news.
In any case, the reason they put those statements in the letter was not to prove willful infringement and thus get triple damages (what would triple damages be?), but to intimidate those who don't know the law into not publishing the letter.
What commercial confidentiality? This is cease and desiste letter. You can't go around sending people unsolicited letters and then claim commercial confidentiality. It is not as if Bosley Bobbers had a contract not to disclose with Schwarzenegger's lawyers.Permalink to Comment
The current events defence doesn't allow you simply to take a work in its entirety and infringe the copyright it in order to leverage some reportability out of it unless there is an overriding reason to need to use the specific expression. To avoid copyright liability you could report it as news with a newly created expression of the basic meaning - but that didn't happen here.
That would still leave confidentiality questions. Obviously there's no express contractual issue for confidentiality, perhaps I conceed that there may not be any implied relationship there either. So this fails then.
There's still a good case for copyright infringement as far as I can see.
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Disclaimer: I'm not a lawyer. But let's run down the four-factor
fair use test.
(1)the purpose and character of the use, including whether such use is
of a commercial nature or is for nonprofit educational purposes;
Yes - "nonprofit educational purposes"
(2) the nature of the copyrighted work;
It seems the letter is mostly factual and functional rather than artistic (legal creativity doesn't count here!)
(3) the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and
OK, this one fails, but it's not fatal. Whole work can still be fair use.
(4) the effect of the use upon the potential market for or value
of the copyrighted work
The letter itself has no market value at all.
So I give it three out of four factors, with the one factor not in favor (whole work) being of little significance considering the strength of the other three (nonprofit educational purpose, mostly factual, no market value).
Of course, none of this helps at all if one doens't have the money or legal resources to fight in court in the first place.Permalink to Comment
I'm all for a good academic debate, but let's be very clear. L&S likely has no intention of moving to, and I am not aware of any legal precedent which would support their ability to, sue the recipient of the letter on copyright grounds for copying the letter. Sure, we might entertain that they have a claim which would survive a motion to dismiss, but this is true of many laughable technical violations of the copyright act that simply haven't been given judicial treatment with regard to a fair use analysis.
Rather, the intent of the paragraph we're all clamouring about is crystal clear: to intimidate the recipient of the legal threat into not making public the threats issued against him BECAUSE those threats are quite questionable and do not mix well with public opinion. This is a novel step in the field of legal bullying.
L&S must know the problems with their publicity rights claims, as well they should. I have no doubt the are smart lawyers. But they've crossed an ethical line in my opinion, by trying to bolster their weak case by attempting to keep their legal theories from the light of day. Schwarzenegger wanted to have his cake and eat it too. If he could enforce the rights of publicity he very well may have lost on election day, all without a court or, imagine that, even public awareness of the issue, he would have won a huge victory.
(P.S. I think the fair use analysis strongly goes against L&S on ALL factors. I believe the entire letter is absolutely critical to see, in order to capture the nuances of the threat being made -- that is the nature of legal writing)Permalink to Comment
I will terminate you for bringing attention to this matter!Permalink to Comment
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