Youtube Letter Jim Nelson 100810

8/8/2019 Youtube Letter Jim Nelson 100810

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VAN DEWATER AND VAN DEWATER, LLPCOUNSELORS AT LAW

John B. Van DeWater (1892-1968) 85 CIVIC CENTER PLAZA, SUITE 101 Noel deCordova, Jr. (Retired)Robert B. Van DeWater (1921-1990) P.O. BOX 112 Edward vK Cunningham, Jr.

John K. Gifford POUGHKEEPSIE, NEW YORK 12601 Susanna E. Bedell (1918-2006)

James E. Nelson Perry Satz (Retired)Gerard J. Comatos, Jr. (845) 452-5900 Janis M. Gomez AndersonRonald C. Blass, Jr. Fax (845) 452-5848 Counsel

Kyle W. BarnettCynthia S. Rosenzweig------------------

WEBSITE ADDRESS:www.vandewaterlaw.com

Brett E. Jones

Rebecca A. ValkAmee C. VanTassell

GENERAL E-MAIL ADDRESS:[email protected]

Audrey Friedrichsen Scott

October 8, 2010

Shadie FarazianYouTube.com901 Cherry AvenueSan Bruno, CA 94066

Re: Orleans

Dear Ms. Farazian:

I represent the Nan Hayworth For Congress campaign and

write to urge YouTube to exercise its discretion to allow the

supporters of Ms. Hayworth to exercise their right to engage in

political speech under the First Amendment by restoring the

Vote With Me video.

As you may know, Ms. Hayworth is a candidate for

Congress, running against John Hall, who was previously a member

of the musical group Orleans.The satirical video Vote With Me simply supports Ms.

Hayworths campaign, and it presents no copyright or trademark

infringement, nor any commercial or other threat to the owners

of the Orleans trademark and copyrights.


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The Hayworth campaign agrees that all applicable

statutes, including the Lanham Act (Trademark) and Copyright

Act, should be complied with; but at the same time it believes

that Ms. Hayworths supporters should be allowed to engage in

First Amendment-protected political speech through popular and

effective media outlets like YouTube.

[T]he First Amendment has its fullest and most

urgent application to speech uttered during a campaign for a

political office. Burson v. Freemen, 504 U.S. 191 at 116, 20

Media Law Reporter 1137 (1992) ... it is at the core of our

First Amendment freedoms Republican Party v. White, 536 U.S.

765 at 774 (2002). Statutes which regulate such protectedspeech are subject to strict scrutiny, and must serve a

compelling state interest and ... [b]e narrowly drawn to achieve

that end if they are to be upheld. Burson at 198.

This broad Constitutional protection for speech

particularly political speech should be compared with the

scope of the Lanham Act, which covers only commercial speech

..., Proctor & Gamble vs. Amway, 29 Media Law Reporter 1449 at

1454 (5th Circuit 2001). Speech is commercial when it is an

expression relating solely to the economic interest of the

speaker and its audience. Proctor & Gamble vs. Amway at 1456

citing Central Hudson v. Public Service Commission, 447 U.S. 557

at 561, 6 Media Law Reporter 1497 (1980).

Granted, ... commercial speech is not accorded the

full protection given to political speech [or] speech on matters

of public concern ... Proctor & Gamble at p. 1456, but myclient and her supporters are not engaged in commercial speech.

The U.S. 5th Circuit Court of Appeals, in Proctor & Gamble went

so far as to note that speech which is not exclusively but only

principally based on ... political convictions, is not

sufficiently economically motivated to be classified as


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commercial speech even if it may also benefit the speaker

economically. Proctor & Gamble at 1459.

Simply put, if ... the speech was not commercial ...

no Lanham Act claim is available. Proctor & Gamble at 1470.

On the copyright issue, the Vote With Me video is a

protected fair use under the Copyright Act. The purpose of the

video is purely non-commercial political speech (see above), it

is transformative in that it has a purpose which is wholly

different than that of Orleans music, the amount of Orleans-

type material which is used is minimal, and there is no

potential that the video will affect the value of the Orleans

material or will be seen as a substitute for it.In a very similar case, Ralph Naders presidential

campaign ran ads which parodied the MasterCard Priceless ad

campaign, urging that Naders pursuit of the truth was what was

really priceless. MasterCard sued, claiming violation of the

Copyright and Lanham Act, unfair competition, dilution and other

claims which may have been presented to you in support of taking

down Vote With Me

However, the Federal District Court dismissed

MasterCards complaint as a non-infringing fair use parody under

the Copyright Act, and also dismissed its other claims.

MasterCard International vs. Nader 2000, Copy.L.Rep. (CCH) P.

28, 7810 (SDNY, 2004). It is a case which I hope you too will

find supports the prompt restoration of Vote With Me. For

your reference, a copy is attached.

In addition, if there is a claim of cybersquatting,which is also based on the Lanham Act, that claim fails also

because there is no bad faith1 intent to profit by using the

Orleans domain name. U.S.C. 1125(d)(1)(A)(i) and (ii)(I). In

1 Emphasis added.


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addition, to state a claim the Vote With Me name would have to

be shown to be either identical to or confusingly similar to

Orleans, which I believe you will agree is simply not the case.

Finally, if there is an unfair competition claim being

made, please refer to the attached Nader case, and note that

the law of unfair competition is generally concerned with

protecting consumers from confusion as to source. Bonita Boats

vs. Thunder Craft Boats, 489 U.S. 141, 157 (1989), from Dr.

Seuss Enterprises vs. Penguin, 25 Media Law Reporter, 1641 at

1649 fn. 12 (9th Cir. 1997). This issue of likelihood of

confusion is the basic test for both common law Trademark

infringement and federal statutory Trademark infringement. Idat 1649. This video presents true political commentary, and I

respectfully suggest there is no potential or actual confusion

as to its source.

In sum, Ms. Hayworth and her supporters are attempting

to exercise one of the most basic Constitutional rights, and

believe that YouTube is an outlet which should encourage rather

than discourage this important public discussion.

Cordially,

VAN DeWATER & VAN DeWATER, LLP

By: ____/s/__________________JAMES E. NELSON

JEN/pmhEnclosures

cc: George T. Gilbert, Esq.100 5th Avenue 11th FloorNew York, NY 10011

cc: John HicksDouglas CunninghamMichael Knowles

Youtube Letter Jim Nelson 100810

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