Ben Carson's Lawyer Threatens CafePress Because Ben Carson Supporters Are Creating T-Shirts Supporting Carson

from the because-intellectual-property dept

Politics and intellectual property always get weird and silly, often during Presidential election season. Following on last year’s insanity in which Hillary Clinton’s PAC tried to take down parodies on CafePress and Zazzle, presidential candidate Ben Carson has apparently decided no one should possibly be allowed to create any kind of Ben Carson merchandise, except for the Ben Carson PAC, and he’s decided to list out every possible intellectual property argument he can think of: copyright, trademark, privacy rights. I’m almost surprised he didn’t find a way to include patents too.

?The aforementioned action is a violation of the Digital Millennium Copyright Act, The Lanham Act, Federal Trademark Infringement, Federal Copyright Infringement, state misappropriation and privacy laws.?

Except none of that is true. Thankfully, CafePress has been working with Paul Levy from Public Citizen on these issues for many years, and he has sent a reply to K. Clyde Vanel, the lawyer representing the Carson campaign in which he systematically dismantles the arguments made in the letter. As with most letters from Paul Levy (and, yes, he’s written one or two on our behalf in the past), it’s a work of art. The summary line:

The notion that expressing views about Carson’s candidacy violates any of his rights is simply absurd. It is shocking that a lawyer whose web site touts his expertise in intellectual property law would sign his name to such a communication.

Then, let’s go one by one through each of the claims to show just how ridiculous they each are. We’ll start with trademark. Levy points out that it’s true that the “Ben Carson for President 2016” organization has applied for a trademark on a logo for the campaign, but the items they’re looking to get taken down do not include that logo.

At most, the items display the phrase “Ben Carson for President 2016,” often appearing in the patriotic colors of red, white and blue. Many of them simply use Carson’s name, or just his given name or his profession. You cannot use trademark theories to ride roughshod over members of the American public who either share your clients’ views and favor Carson’s candidacy, or for that matter disagree with their views and oppose Carson’s candidacy. They can hardly express their views in that respect without identifying the candidacy about which they wish to speak.

Oh, and you know how SuperPACs need to be entirely separate and independent from campaigns? Well, as Levy notes, if Carson’s lawyer’s theory is accurate, no SuperPAC can support Carson without violating his trademark:

Moreover, it is very common for people to express their views about presidential candidacies, completely independent of the campaign; this is so common that it defies belief that a reasonably careful consumer would believe that a shirt or bumper sticker advocating your client’s election necessarily came from the campaign itself. Indeed, the Super PAC “2016 Committee” carries various wares that display the phrase “Ben Carson for President 2016.” E.g., Super PACs have to be independent committees, and cannot coordinate with the official campaign. I assume you are not going to argue that 2016 Committee’s use might confuse consumers into believing that Carson or his campaign committee is the sponsor of the PAC. So I doubt that you have any realistic chance of arguing that the items carried by CafePress are likely to cause confusion, a key element of a trademark infringement claim. And because your state law claims regarding misappropriation of name or likeness also require a showing that the use implies that the plaintiff endorsed or authorized the product in question, your inability to show lack of likely confusion condemns those claims as well.

Yes we’re this far and we haven’t even discussed fair use or that whole First Amendment thing. No worries, Levy’s got that covered as well:

More important are the issues of fair use and the First Amendment, which apply equally to your purported misappropriation of name and likeness claims as well as to your trademark claims. Speech about a candidate for president is squarely protected by the First Amendment, hence any effort to use trademark law to quash such uses is highly suspect. Although CafePress users’ products are sold, their contents are noncommercial speech, which qualifies for full First Amendment protection.

Okay, next up: privacy rights. Yes, the guy running for President is claiming that T-shirts supporting his campaign for President violate his privacy rights. I’m almost surprised Levy didn’t just respond with “Really?”:

Your reference to a purported invasion of Carson’s privacy is particularly foolish. Given the intense scrutiny that presidential candidates receive in this day and age, it is a matter of some doubt whether any statement about a presidential candidate, especially one who now stands second in the polls of the Republican nomination, could constitute an invasion of privacy, no matter how personal. But there is nothing “private” in the expression contained on the products that CafePress carries– they are all specifically about the Carson candidacy. That candidacy is certainly not private.

And then the copyright claims. Those should be pretty quick to take care of, because (as you guessed) everything about them is bullshit:

Finally, you make a claim of copyright infringement and claim that the DMCA has been violated. But the DMCA imposes an obligation on the hosts of interactive web sites like only once the purported copyright holder has scrupulously followed the formalities required by 17 U.S.C. §512(c)(3)(A); your email does not meet those requirements. One important flaw in the copyright claim is that you do not identify the specific works that infringe your clients’ copyrights, and looking through the various items displayed at, I do not see any materials that are likely to infringe copyrights that your clients own. Most of the items contain some variation of the phrase “Ben Carson for President 2016.” That expression lacks sufficient originality for copyright protection. Indeed, if the phrase were copyrightable, your clients might not be the owners of the copyright, because they might not have been the first to fix it in a tangible medium of expression. It is quite possible that some supporter hoping to encourage Carson to run may have written it down before Carson did. That person would own the copyright, if the phrase were copyrightable, and your clients would be among the infringers.

CafePress takes its copyright obligations very seriously. Therefore, I invite you to specify, in detail, the specific works in which your clients claim copyright, so that we can assess whether the inclusion of any copyrighted content in its users’ designs might be fair use. Certainly, if you identify any material that genuinely infringes a valid copyright that your clients own, CafePress will take it down.

In closing, Levy points out that way back in 2008, he helped CafePress sue the Republican National Committee for threatening CafePress in a similar manner.

During the 2008 election, the Republican National Committee sent CafePress a series of threats to sue for trademark infringement because CafePress users were having shirts and other items printed with designs expressing views about the Republican Party or various candidates, using the acronym GOP or images of elephants. CafePress eventually had to sue the RNC for a declaratory judgment of non-infringement, and the result was a great deal of embarrassment for the Republican Party; the RNC then retracted its threat, subject to a request that CafePress direct users who, without any other expressive design elements, displayed a particular image of an elephant that the RNC had trademarked, to ask the RNC for permission (the RNC indicated that consent would readily be given).

I trust that Carson will want to save a similar embarrassment for his political campaign. I hope you will issue a prompt retraction of your demand.

Intellectual property sure makes candidates and their lawyers do weird things.

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Comments on “Ben Carson's Lawyer Threatens CafePress Because Ben Carson Supporters Are Creating T-Shirts Supporting Carson”

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cpt kangarooski says:

Well that’s not right:

Indeed, if the phrase were copyrightable, your clients might not be the owners of the copyright, because they might not have been the first to fix it in a tangible medium of expression. It is quite possible that some supporter hoping to encourage Carson to run may have written it down before Carson did. That person would own the copyright, if the phrase were copyrightable, and your clients would be among the infringers.

Sorry, but that’s not how it works. Copyright requires originality, not novelty. It doesn’t matter if someone else writes it down first. It matters whether you copied it from someone else. If an author creates an original work, i.e. if the work originates from them, they can copyright it. If someone else copies that work, it may be infringing. But if the work is independently created without copying, the new work, despite being identical to the old one, is an original work by the new author, and both can coexist and be independently copyrighted.

In practice it’s hard to show this because the more similar and more complex the works are the less likely it is to have happened. But ideally anyway it’s possible. Not that it matters here: a short, uncreative phrase like this one would not be copyrightable.

Anonymous Coward says:

Re: Re:

“But if the work is independently created without copying, the new work, despite being identical to the old one, is an original work by the new author, and both can coexist and be independently copyrighted.”

Citation? I don’t believe for a second that the major copyright trolls would ever consider that possibility.

cpt kangarooski says:

Re: Re: Re:

Sheldon v. Metro-Goldwyn Pictures Corporation, 81 F. 2d 49 (2d Cir. 1936)

Sheldon is generally considered the seminal case, even though it’s really just a brief passage referencing Ode on a Grecian Urn, and it was far from the first case to support independent creation.

As I said, in practice, it’s hard to pull off, though it is vital to make it an issue regarding the plaintiff’s prima facie case, rather than to make it a part of a defense. Since copying is the sine qua non of infringement, a defendant claiming independent creation must take care to ensure that the plaintiff has the burden to prove that independent creation did not occur.

Plaintiffs will always claim striking similarity, which is some of the greatest bullshit in the land. Here’s how it works:

Normally, to show copying, you must show that the defendant actually had, or at least probably had access to the work. (The ‘probably’ is for circumstances such as where a song has been played a lot on the radio, but defendant doesn’t own a copy; if it got a lot of airplay, odds are good that he heard it somewhere) Having shown this, you must then show material similarity between the two works to support the claim of copying. (For example, reference works often have a few made-up pieces of information scattered in them to act as tell-tales, though that’s just one example of evidence of copying)

Striking similarity arises where there is no evidence of access. Instead, the plaintiff alleges that the works are so amazingly similar — at least in some part, not necessarily the entire thing — that it can’t have been a coincidence, and there must have been access. And of course, this is also sufficient to show copying.

The problem is that in the traditional approach, you infer that copying has occurred based on similarity, but at least grounded on the fact of access or at the very least probable access. With striking similarity, you infer that copying has occurred based on similarity, but there’s no fact for grounding; the access is inferred based on similarity too. It’s essentially circular. And of course experts that will testify that two works are strikingly similar are a penny a pound.

Anonymous Coward says:

I'm Innocent!

I’m going out on a limb here, but I’d be willing to bet that Mr. Carson didn’t actually sign that letter, and probably wasn’t even aware that it had been sent. It’s a simple matter to scan a signature and affix it to a document as an image.

As for his attorney sending out stuff like this, who’s he really working for; the opposition maybe?

No lawyer in his right mind does stuff like this, especially IP violation claims that are obviously bogus. Don’t be too ready to jump down Mr. Carson’s throat until we see or hear HIM say these things on live TV.

Anonymous Coward says:

Re: I'm Innocent!

OK, first off, my apologies for poor wording. I must assume (and indeed have read) that Mr. Carson is a competent, experienced IP attorney and is certainly NOT ignorant of the law. My point was that he would not have issued such a document on his own. Therefore someone else issued it in his name, possibly sight unseen by Carson.

The main effect of this fiasco is making Mr. Carson look like a fool, or really incompetent – neither of which is true. The impetus has to be political and, unless his own people are working against him, perpetrated by the opposition’s people.

BTW, AC6, of course such abominations happen far too often, usually deliberately by trolls (MAFIAA) or large corporations trying to kill off competition. The real tragedy is that there is no effective cost or penalty for doing so. Until such is implemented, they will continue to do so with impunity.

Anonymous Coward says:

Re: I'm Innocent!

Apparently mr carson is just another war mongerer, likes hillary, and thinks snowden should be arrested

First saw him, thought he might be alrite seems to be saying the right things, now i see him in another light, seems like a violent twat, doing things like tellling one of his constituents to shutup and sit down as well as voting for war in all but one occassion

PaulT (profile) says:

Re: Re:

“Look at Hollywood, for example, how many rehashes andhave they popped out for the last 10-20 years?”

Not only are you looking at the wrong benchmark for originality, people were saying exactly this in the 1920s.

There’s plenty of originality, if you cast your eyes away from the processed pre-packaged stuff. This is true for any industry.

This is also why those entities fight so hard for copyright protectionism. If they can use it to stifle originality and own the old ideas, they remove their competition.

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