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December 07, 2005
Keeping C&D Letters Confidential
By Eric Goldman
An all-too-familiar story. A famous celebrity takes her clothes off in a private outdoor space (in this case, Jennifer Aniston goes topless in her backyard). The paparazzi captures the event for posterity and profit. Celebrity finds out and unleashes a bulldog lawyer on the case. Lawyer writes a cease and desist letter to potential publisher with stern warnings about republishing the photos. The cease-and-desist letter hits the Internet. (In all likelihood, the photos will hit the Internet too, but to my knowledge we haven't gotten that far yet).
Here's the twist that triggers this blog post. The lawyer's letter says no less than 3 times that the C&D recipient may not publish the cease-and-desist letter:
* the letter is titled at the top "confidential legal notice/not for publication"
* the second sentence says "This is a confidential legal notice...and may not be published or disseminated in any way."
* the last paragraph reads: "This letter is a confidential legal communication and is not for publication. Any publication, dissemination or broadcast of any portion of this letter will constitute a breach of confidence and a violation of the Copyright Act, and You are not authorized to publish this letter in whole or in part absent our express written authorization."
These brouhahas never seem to end up well for anyone. Let's deconstruct the situation.
Jennifer Aniston
Jennifer Aniston should have known better. I recognize this may sound a little heartless; after all, she was in her own home and her lawyer alleges that the photographer was a mile away using an incredibly high-powered telephoto lens. If true, no question she should have had a reasonable expectation of privacy.
However, I believe that in practice, the rules are simply different for the top 1,000 most famous people in the world. For these celebrities, certain activities (nakedness, friskiness, ingesting) in a potentially observable place are never consequence-free, regardless of what the law says or the celebrity wants.
In this case, an afternoon of topless sunbathing at home has the consequence of a multi-month multi-continent pitched legal battle that, in all likelihood, will be futile (i.e., the pictures will almost certainly irrevocably hit the Internet). I'm not saying this is a good outcome, but it's an inevitable result in this era. This has to be on the minds of the world's most famous celebrities at this point.
The Paparazzi
If the photographer really did use a telescopic lens to take pictures of someone's backyard from a mile away and then tried to resell the photos, I'm fairly comfortable that there will be legal redress.
The Lawyer and the Smoking Gun
Some people complain that lawyers can't communicate very well, but good news here--we have no problem understanding what this lawyer wanted. He did not want to see this letter posted to the Internet. Yet, there it is, on the Smoking Gun in all its glory.
There are some problems with the lawyer's desire. How can a lawyer claim that a cease-and-desist letter is a confidential communication? In general, sending the letter to a third party without any confidentiality assurances should blow any legal confidentiality protections. The lawyer's redundant declarations doesn't change the analysis one iota (if anything, repeating these statements to bloggers will invariably lead to the opposite outcome). So, on its face, I don't see how the confidentiality demands/instructions are anything more than hyperbolic and low-efficacy scare tactics.
The copyright issue is more complex. The letter should qualify as an original work of authorship, and posting the letter online should violate at least 2 of the 106 rights (reproduction and distribution).
But is there some legal defense that nevertheless permits the reposting of C&D letters? The most obvious one is fair use, but fair use analyses are always tricky. For a good example in a relevant context, consider how Google deals with C&D letters it receives. At the Yale Regulating Search conference, a Google representative explained that Google turns over all 512(c)(3) demand letters to ChillingEffects.org because (a) Google wants the letters to see the light of day, (b) Google feared that publishing the letters would be an unexcused infringement, and (c) Google thinks that ChillingEffects.org's republication of the letters would be protected by fair use.
Can this be right? Google can't republish the letter but a third party can? ChillingEffects.org changes the fair use analysis in two ways: first, it's a non-profit actor, and second, it does add some commentary to the letter. But this seems like a silly formalistic solution. (I'll note that the Aniston C&D letter recipient apparently took the same approach, handing the letter off to the Smoking Gun, who added some light commentary).
C&D letter recipients shouldn't have to go to such extremes. Senders of C&D letters should be accountable for their actions. They seek legal redress and the letters themselves are legally significant (i.e., they could create the basis for willfulness determinations; they may be the basis for the recipient seeking a declaratory judgment). To fully understand what is taking place in the field, information about these C&Ds has to enter the public discourse. And simply reporting the receipt of a C&D isn't enough--to understand the letter and its potential impacts, external observers have to read the precise words used.
Therefore, I would strongly favor a statute that exculpates C&D letter recipients from republishing the letter. Because such a statute is unlikely, I am hoping the courts will create a defacto per se fair use exclusion for republishing C&D letters. Meanwhile, kudos to the Smoking Gun for not letting the repeated exhortations keep the letter off the Internet.
Finally, I suspect some readers of this post got here on the mistaken hope of seeing the pictures in question (or others of a similar nature). If you made it this far with that expectation, I'm sorry to disappoint.
Posted by Eric at December 7, 2005 11:28 AM | Copyright , Trade Secrets
Comments
I was wondering what your analysis on this topic would be. As to Aniston, can she have it both ways? Celebrities rely on favorable (and even unfavorable or sensational) press to increase their cachet and appeal to fans. Aniston poses topless for GQ magazine on her terms of course (no nipples, but she’s still topless). If she’s outside topless does she really have any expectation of privacy given the existence of powerful telephoto lenses? She’s a celebrity, and needs to have her picture taken to remain a celebrity.
Her “litigation counsel” are the reigning monarchs of the SUYA (smoke up your a**) demand letter. The claim of privilege seems incongruous to its purpose. Here’s an amusing colloquy: “I thought I demanded that you not publish the Photographs.” “You did, but I couldn’t tell my editor or publisher without breaching the confidential nature of your letter or violating the Copyright Act.”
As usual, your blog has the most current and incisive remarks on the IP issues of the day.
Posted by: David at December 8, 2005 12:11 PM
David, thanks for the kind words. As for Aniston, I believe she was fully topless in a scene in the movie the Good Girl. However, I don't think this changes the legal analysis; she still has the right to get publicly naked at the time and place of her choosing. I was actually trying to make a point that was more practical and less legal--even if she has legally enforceable rights, she still should know better. It's the price of extreme fame, and there's not much she can do about that at this point. Eric.
Posted by: Eric Goldman at December 8, 2005 01:16 PM
The Diebold/EFF case seems worth noting here. Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (2004). The posted company emails in that case were arguably subject to copyright, but the claim of infringment was ultimately deemed frivolous by the court.
EFF's Press Release here:
http://www.eff.org/effector/17/39.php#III
Posted by: greglas at December 8, 2005 02:05 PM
Eric,
I agree with you in principle, but I think the case isn't so complicated. As to the contents of the letter, the fair use defense is pretty compelling. It seems to me that three of the four factors strongly favor the putative defendant. (Purpose = combination of litigation defense and criticism; nature = published and factual; market = non-existent and not harmed.) And common sense suggests a "you can't have it both ways" defense that should obviate the need for burdening Title 17 with another exception. As to the physical letter itself, the "no dissemination" legend strikes me as a presumptively void equitable servitude on a chattel -- even if the legend survives a preemption analysis that favors the result under copyright law.
Mike
Posted by: Mike Madison at December 8, 2005 02:38 PM
Good points, Mike (although I'm not an expert in equitable servitudes in chattel!).
Greg, you raise a fair point, although I wouldn't hold that case out as a model of clarity or rigor. We know that corporate emails can be copyrighted, and the copyright is infringed by copying or distribution. Once we find a prima facie case of copyright infringement, the defendants have the burden to find and prove a defense. The fact that the OPG court decided to cut some analytical corners doesn't offer a lot of future predictive value. Eric.
Posted by: Eric Goldman at December 8, 2005 03:14 PM
I don't want to get into the fair use defense/right debate-- I just thought it was relevant re the strength of fair use rights in short memos and such, and to show that relying on prima facie infringement in case with strong fair use arguments could have a significant downside. I could also add the Barbie case, Mattel v. Walking Mountain Prods., 2004 U.S. Dist. LEXIS 12469 (C.D. Cal), where attorney's fees were awarded because the court found claims of copyright infringement "objectively unreasonable" in light of the strength of the defendant's fair use arguments.
Posted by: greglas at December 8, 2005 03:53 PM
It seems to me that a plaintiff in an infringement action over a cease and desist letter would be in an interesting catch-22 because of the requirement that a work be registered before such an action can be maintained. If the sender's ultimate goal is keeping the contents of the letter from reaching public view, then I don't see how threatening infringement litigation would advance this interest much, when one could retrieve a copy of the deposit from the Library of Congress.
Posted by: Evan Brown at December 9, 2005 04:08 PM
Nice comment Evan. Perhaps the goal is to keep the C&D letter confidential if possible. However, if it reaches the general public then I guess the plaintiff has nothing to lose by filing the copyright application along
with the deposit. In fact, if Aniston's counsel is serious about this, they should file the copyright application a.s.a.p. in order to get statutory damages per the 3-month exception.
Otherwise, it would be difficult to prove actual damages and profits. Regardless, if we are talking pure copyright law and forget about the
sender's ultimate goals, I think the copying and subsequent distribution of the letter was an infringement. The question then becomes whether any affirmative defenses apply.
Posted by: Boris Umansky at December 9, 2005 05:17 PM