VIA CERTIFIED MAIL
Mr. Zack Exley
25 Magnus Ave., Apt. 1
Somerville, MA 02143
Re:gwbush.com
Dear Mr. Exley:
As counsel to the Governor George W. Bush Presidential Exploratory Committee
("Exploratory Committee"), I am writing about a web site registered
to you, which appropriates without authority the text and pictures of the
Exploratory Committee’s official campaign web site. In addition to using the
Exploratory Committee’s official web site without authorization, your site,
which contains links to sites that promote violence and degrade women, is
patently offensive.
In your wholesale misappropriation and imitation of the georgewbush.com web
site, you violate a host of copyright and trademark laws. While we might overlook
this given our recognition of the constitutional right to free political debate,
we cannot, in this instance, given the nature of the material you graft onto
the words, look and feel of the Exploratory Committee’s site. For that reason,
we must demand that you immediately cease and desist your misappropriation
of the materials on the Exploratory Committee’s copyright and trademark-protected
web site.
The Exploratory Committee’s official web site is an informational presentation
and display of photographs, illustrations, text, and arrangements created
by, and owned by the committee. The federal copyright laws protect the Exploratory
Committee’s web site displays to the same extent these laws protect all other
person’s and business’ creations, including the creations of book authors,
artists, advertisers, and software developers. The Exploratory Committee’s
web site is for public access without charge, but it is still protected by
copyright. See e.g., Storm Impact, Inc. v. Software of the Month Club,
13 F.Supp. 872, 48 USPQ2d 1266 (N.D. Ill. 1998). (Material placed on the internet
for free distribution held protected by copyright). Even if you are or you
represent a not-for-profit entity, or even a political group or organization,
this does not allow you unlimited and unauthorized use of the copyrighted
features of a committee’s web site. See Scanlon v. Kessler, 11 F.Supp.
444, 47 USPQ2d 1692 (S.D.N.Y. 1998)(being a non-profit entity is not a defense
against liability for copyright infringement.)
The copyright laws protect you, as well as all other members of the public.
I do not believe you would want your own written creations taken at will,
by anyone, without your permission and without your control. Your cavalier
usurpation of the Exploratory Committee’s web site may reflect a confusion
on your part of the "fair use" provision of the copyright laws of
the United States. Without providing a tutorial on "fair use", I
suggest that you consult with a copyright attorney. If you cannot afford one,
then you may wish to contact the pro bono services likely provided
by your city government, and by certain law firms and, perhaps, by the law
school nearest to you. As a general matter, I can assure you that the copyright
laws do allow, in particular defined and reasonable circumstances, for a certain
amount of "fair use". See 17 U.S.C. § 107. See also,
Harper & Row Publishers, Inc. v. Nation Enterprises, 723 F.2d 195,
206 (2nd Cir. 1983) for a helpful discussion of fair use. However,
the quantity of the georgewbush.com web site materials appearing in your web
site is so large that, on that basis alone, your use is far outside of the
"fair use" provided for by the copyright laws.
Your use of the Exploratory Committee’s web site material is so substantial
that there is a real likelihood that a person "surfing" the web
could be confused into believing, somehow, that your site represents or is
authorized by the Exploratory Committee. Such confusion may damage the perceived
integrity of the Exploratory Committee’s web site. I therefore demand that
you remove immediately from your web site all of the materials and arrangements
you have taken from georgewbush.com, with the exception of such pure
facts that you may wish to use and, as pure facts, may be shown by
you as a permitted "fair use" under the U.S. Copyright laws.
If you do not take this action immediately upon your receipt of this letter,
the Exploratory Committee will consider taking the full legal remedies available
to it to rectify this situation.
Sincerely,
Benjamin L. Ginsberg
Counsel
Governor George W. Bush for President Exploratory Committee, Inc.