|April 14, 1999
||Benjamin L. Ginsberg
VIA CERTIFIED MAIL
Mr. Zack Exley
25 Magnus Ave., Apt. 1
Somerville, MA 02143
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
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
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.
Benjamin L. Ginsberg
Governor George W. Bush for President Exploratory Committee, Inc.