The Copyright Of Cease-And-Desist Letters

from the ain't-much-there dept

It's quite popular for some bullying lawyers to put a notice on their cease-and-desist letters, declaring that they are confidential and covered by copyright, and that any attempt to publish it or share it with the world will be viewed as copyright infringement. In many ways, this is an incredibly weak attempt by lawyers to avoid the old "Streisand Effect," whereby their cease-and-desist letter becomes the news and draws a lot more attention to what they wanted ceased and desisted. But does that claim mean anything? Typically, not at all. There's typically nothing in a cease-and-desist that would qualify as new and unique enough expression to be covered by copyright (there could be exceptions), and posting a cease-and-desist publicly would most likely be seen as fair use in almost every situation imaginable.

There was, of course, some buzz a year and a half back when a lawyer claimed to have won a copyright ruling over a cease-and-desist letter, but the details showed that was a gross exaggeration. The court had merely noted that the original had in fact been registered by the copyright office (a basic formality).

Still, this doesn't stop law firms from continuing to use this practice. Michael Scott points us to quite the story by the Citizen Media Law folks, concerning a massive cease-and-desist letter from the owners of one newspaper to another. The C&D was questionable enough in the first place. Basically, someone from the San Diego Reader asked for some info from Platinum Equity, a buyout firm that had purchased the competing San Diego Union-Tribune. It involved a sexual harassment lawsuit that Platinum had been involved in, which seems like a perfectly reasonable news story on which to request some information. Platinum did not see it that way and had its lawyers send an amazingly long C&D (the original was six single-spaced pages, which sure beats the typical one-pager found in most C&Ds).

The whole story seems bizarre, as the original request seemed perfectly normal for a news publication, and the company could have come back with a simple no comment. Sending a six page C&D practically screams out for attention -- and it's attention they're getting, despite the claim that publishing the letter would be see as copyright infringement. There's almost no chance that would actually get anywhere in court of course -- especially when it's newsworthy and the information was published by a news publication. Still, it does make you wonder why lawyers still think they can get away with such bullying tactics.

Filed Under: cease and desist, copyright


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  1. icon
    LostSailor (profile), 29 Jul 2009 @ 10:22am

    Shepard Fairey Irony

    In the counter-complaint AP filed in the Shepard Fairey lawsuit, there is this allegation that Fairey (through his attorney) did the exact same thing when he sent a C&D letter to a Texas artist who used one of Fairey's images (transformed).

    Here's the quote from the C&D letter (from the AP's filing):

    Finally, I want to call your attention to California Civil Code 985, which reads in part "Letters and other private communications in writing belong to the person to whom they are addressed and delivered; but they cannot be published against the will of the writer, except by authority of law." Accordingly, I do not expect to see this letter in a public forum and you are not authorized to publish it, including (without limitation) by putting it on the Internet. This also applies to your posting of my Client's first cease and desist letter online. Demand is also made that you remove your public copies of by Client's correspondence.


    The AP filing can be found here. The quote comes from paragraph 121 on page 35.

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