Further thoughts on this week's LTAR

["A. Joseph Ross" <lawyer@world.std.com>]

It occurs to me that at this point, Howard Stern is enough of a big shot 
that he, or some corporate entity owned by him, may well own the rights 
himself to his current work and, most likely, to any trade mark in his 
name.  In that case, the only way CBS would have the right to enforce 
trade mark rights would be if he (or his corporation) delegated that right 
to them.  Which he may have done.

Or, perhaps CBS has no right whatsoever to send a cease and desist letter. 
But (a) if they send one, it may scare someone into complying; or (b) they 
may even bring a lawsuit, and be completely in the wrong, but it would 
cost a lot of money for the owner of the Website to win.

Under the Federal Rules of Civil Procedure, CBS's lawyers could be 
sanctioned by the Federal Court and even ordered to pay costs for bringing 
a frivolous lawsuit.  But it would probably take a certain amount of 
investigation and litigation costs on the part of the Website owner in 
order to prove that it was frivolous.  So perhaps it's just a matter of 
muscle.

Or perhaps someone at CBS simply believes they have the right to do this 
and doesn't know that they don't.  There's often more stupidity than 
malice or greed behind institutional decisions.

This reminds me of a situation several years ago when Massachusetts 
Lawyers Weekly got upset that people were making and distributing reprints 
of articles which had been published in their newspaper.  They felt they 
had the right to sell reprints of Lawyers Weekly articles.  At one point, 
they even appealed, in their paper, for advice from their readers on what 
they should do about these illicit reprints.

This moved me to send them a letter.  First, I told them that I thought it 
rather inconsistent of them to object to the free circulation of article 
reprints while at the same time asking for free legal advice from their 
readers.  I suggested that I would be happy to give them legal advice if 
they would like to make an appointment and pay my usual rates.

That said, I told them, as author of a couple of articles which appeared 
in Lawyers Weekly, that under federal copyright law, I, not they, owned 
the rights to my articles, in the absence of any contract to the contrary. 
And I, not they, had the right to charge for reprints of my articles.  
Since they hadn't even paid for my articles, I thought they had some nerve 
thinking they could sell reprints of my work.

I don't know whether I was the only one who wrote them, but I do know that 
they never mentioned the matter again.  And I have continued to distribute 
copies of my articles, bearing a copyright notice in my name.


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 A. Joseph Ross, J.D.                        617.367.0468
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 Boston, MA 02108-2503      http://world.std.com/~lawyer/
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