Not Quite a Blog

Can attorneys claim copyright in cease and desist letters they send (to prevent them to be forwarded)?

TechDirt has an interesting story up, "Since When Is It Illegal To Just Mention A Trademark Online?" (via Doug's Clipblog).

The trademark issue between Urinal.net and the Marco Beach Ocean Resort is not what I find interesting (that is, it's clear that the site is using it in a descriptive sense, and in terms of trademark law and jurisprudence, this is fair or nominative use.)

What interests me is the following:

I asked the maintainers of the site if I could see a copy of the cease & desist, but apparently the lawyers claim that the cease & desist is copyrighted to them and that the recipient is not allowed to forward it to anyone. I wonder if that means they can't even forward it to a lawyer? So, as far as I can tell, the Marco Beach Ocean Resort seems to think that [...] any cease and desist is to be some sort of "secret" cease & desist that can never be shown to anyone, which seems to go a bit beyond what rights copyright gives them.

This is pretty silly and, if true, would have major implications for a site like ChillingEffects.org (created by w00t! Wendy).

First, to file a copyright infringement lawsuit against Urinal.net, MBOR's attorneys would have to register the copyright in the C&D with the copyright office, and there's a small but real chance that it would not be issued (sometimes, under a "rule of doubt" the Copyright Office will issue the registration but send a letter saying that the work may or may not be copyrightable. A court would have to determine this for sure.).

Attorneys claiming that they have a copyright in a C&D? Well, lets check the four factors of fair use that would be weighed in a copyright infringement lawsuit:

• purpose of the use - (I was trying to avoid having to go to or link to Urinal.net, but I just did.) The only thing commercial about this website is the Google AdWords at the bottom (they do have a sad-if-true and funny-any-which-way "Career Opportunities" page: "Throw your career in the toilet! - Urinal Dot Net is Hiring!").

  It would seem that this site's use of a C&D - likely for display purposes, if any - would more than likely be non-commercial (I can't imagine that they'd start to sell viewings of the C&D letter or start selling t-shirts of the C&D!).

• nature of the work - Unless these attorneys are damned creative, I can't imagine that there's much in the way of creativity in a trademark-related C&D letter. It would seem that most of the text would be factual and legal prose (that they likely ripped off of other attorneys within or without of their firm).

• amount of work taken - Well, to publish the C&D, they'd want to publish the whole thing, like a scanned image.

• effects on market for the work - The idea of attorneys selling their carefully crafted C&D letters is hilarious. I can't imagine anyone would buy them, much less how they'd advertise them for sale.

So, in short, only one of the four factors (amount) would seriously weigh against Urinal.net. They should post the C&D to let the world see what ridiculous claims the lawyers for Marco Beach Ocean Resort are making.

UPDATE [2005-01-07 14:43]: This was posted on Interesting People and Politech.