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Attorneys

Call it what you want. Just don’t call it copyright infringement.

November 15 2017

By Josiah Prendergast

A demand letter is a formal way of telling someone, “now we got bad blood.”  Recently, a Northern California blogger received a demand letter in which Taylor Swift threatened to sue the blogger.  In so many words, the blogger responded, “I wish you would.”

The Demand Letter was triggered by the blogger’s September article, the Cliffs Notes to which might read something like: “Blogger characterizes T-Swizzle’s lyrics as ‘dog whistles to white supremacy.’  Alt-right is co-opting Taylor’s songs, possibly with her tacit approval.  Blogger tells Tay-Tay, ‘Speak now.’”  Apparently, the article was not well-received by Ms. Swift, hence the Demand Letter.

The portion of the Demand Letter that caught my eye, however, has nothing to do with Taylor Swift, her lyrics, or the alt-right.  What stood out was the closing threat of further legal action if the Demand Letter became public:

“This is a confidential legal notice and not for publication.  Any publication, dissemination or broadcast of any portion of this etter will constitute a breach of confidence and a violation of [sic] Copyright Act.  You are not authorized to publish this letter in whole or in part absent our express written authorization.”

The blogger took the Demand Letter to the ACLU, which published the Demand Letter online for all to see, as if to say, “Look what you made me do.”  And here we are.

You might ask: Can they do that?  And should my attorneys be using similar language in their demand letters?  Let’s fill that blank space a little.

Can the Demand Letter be copyrighted?  Probably.  To be copyrightable, the letter must be an original work of authorship fixed in a tangible medium (i.e., words written down on paper, a figure carved in stone, a photograph).  Without more facts, we can presume that the Demand Letter probably meets these requirements: the letter was authored by Ms. Swift’s attorneys (authorship), its words were typed onto paper or saved as a pdf on a computer drive (fixed in a tangible medium), and Ms. Swift’s attorneys were the original authors—they probably didn’t crib the language from a fan chatroom.

Does that mean the blogger and her attorneys are liable for copyright infringement?  Probably not, for a couple of reasons:  (1) “Subject to certain exceptions, the Copyright Act requires copyright holders to register their works before suing for copyright infringement.”[1]  While it is possible that Ms. Swift’s attorneys registered the Demand Letter with the U.S. Copyright Office, it is unlikely that they spent the time and money to do so.  Why?  Because (2) the fair use doctrine provides substantial protection.  Through the fair use doctrine, the Copyright Act permits the use of copyrighted materials “for purposes such as criticism, comment, [and] news reporting,” among other uses.[2]  The blogger can claim fair use in republishing the Demand Letter to criticize Ms. Swift or her attorneys for sending it, to comment on the Demand Letter as a response to the original article, and in reporting on the Demand Letter as an aspect of political and entertainment news.  Also notable, a factor considered when applying the fair use doctrine is “the effect of the use upon the potential market for or value of the copyrighted work.”[3]  It is dubious that the Demand Letter has much of a market or value as an original expression.  It likely won’t appear on the New York Times Best Seller List alongside John Grisham’s next novel.

So should my attorneys include similar copyright language when sending a demand letter on my behalf?  It really comes down to personal preference.  It might persuade some recipients to keep your demand letter quiet, and there can be reasons for trying to keep a dispute behind closed doors.  Arbitration often is used for that purpose.  But demand letters frequently lead the recipient(s) to seek an attorney’s advice, at which point the value of threatening to tack on copyright infringement claims diminishes.  Attempts to keep the demand itself confidential also might backfire, leading to a more public response or reaction.

Keep in mind:  A demand letter usually is a sign of more serious things to come for both sides.  If you receive one, don’t just shake it off.  On the other side of the door, if a demand letter is being sent on your behalf, don’t assume the letter will remain a private matter.  This isn’t 1989.  With email, smartphones, and innumerable social media platforms, your demand letter can become your reputation.

[1] Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157 (2010), citing 17 U.S.C. § 411(a).

[2] 17 U.S.C. § 107.

[3] 17 U.S.C. § 107.