Re: [rumori] Wow! My first cease & desist!

Jeff Robins (
Mon, 24 Jan 2000 01:37:52 -0500 (EST)

The cease and desist order is purporting to base its claim on two separate
areas of the law:

   (1) copyright law (for which fair use is theoretically a legitimate
defense, as outlined by Don, et al)

   (2) "the right of publicity", which is a creature of tort law and is
recognized in approximately half of U.S. states

A full-fledged response to the letter sent out by this Sanford fellow
should address both of these claims.

By the way, "right of publicity" is based on the theory that Dan Rather
has a financial investment in his celebrity and, thus, has the exclusive
right to profit from his celebrity. To extrapolate, the CBS lawyer is
essentially saying that ECC's use of Dan Rather's voice is enhancing the
market value of the "Rocked by Rape" single without Rather receiving the
value from it that he deserves. This is, in legal terms, a separate
argument from the copyright issue.

The good news is this: "publicity" rights end where First Amendment rights
begin. Furthermore, as hardly needs to be pointed out, ECC did not use
Dan Rather's voice (and the CBS theme music) for the purpose of enhancing
the market value of the single but for more lofty (First
Amendment-protected) reasons.

> >---------- Forwarded message ----------
> >Date: Wed, 19 Jan 2000 11:17:42 -0500
> >From: Kryle, Sanford I <>
> >To: "''" <>
> >Subject: ROCKED BY RAPE
> >
> >
> >Ladies/Gentlemen: January 19, 2000
> >
> >A matter of serious concern has come to our attention. We have learned that
> >you are offering for sale a sound recording containing the CBS EVENING NEWS
> >opening theme and Dan Rather's voice (the "Materials").
> >
> >Your use of the Materials significantly infringes upon the copyrights owned
> >by CBS. We hereby advise you that to copy, record, perform, exhibit,
> >exploit, or otherwise use, CBS-owned, copyrighted material in whole or in
> >part without its express written permission constitutes a serious
> >infringement of CBS's exclusive rights in such material. Furthermore, your
> >use of Mr. Rather's voice is interfering with his right of publicity and has
> >created a false impression that Mr. Rather and CBS have endorsed or are
> >connected with the sound recording which is misleading and deceptive to the
> >public.
> >
> >Unless you immediately remove the Materials and any related material from
> >distribution and display, and provide us with written assurances that all
> >such use has stopped, and will not resume in the future, we will have no
> >alternative but to take appropriate action to protect CBS's rights. We
> >require receipt of such written assurance from you by no later than January
> >21, 2000.
> >
> >CBS specifically reserves any and all rights and remedies with respect to
> >your unauthorized use of the Material.
> >
> >Very truly yours,
> >
> >Sanford I. Kryle
> >Associate General Counsel
> --
> The Evolution Control
> Committee
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