Letter here:
CEASE AND DESIST
RE: Not All Roses
Infringement of Right of Publicity; Defamation; Invasion of Privacy
Mr. Hampton:
My name is......... and I represent Mr. Dean Potter. It has come to my client’s attention that you have publicly released a song titled “Not All Roses” (hereinafter “NAR”) which is available via streaming audio or MP3 download at soundclick.com, specifically at the following URL:
http://www.soundclick.com/store/bySong.cfm?songid=5187809. Furthermore, on April 2, 2007, you posted on the Mountain Project website a link to the NAR song.
On behalf of Mr. Potter, I demand: (1) that you immediately cease all distribution of NAR in any format, by any means; (2) that all copies, including electronic copies, of NAR be expeditiously destroyed and immediately removed for sale/download from all stores/websites, including, but not limited to soundclick.com; (3) that you remove from Mountain Project any and all links to NAR; and (4) that you desist from any other infringement of Mr. Potter’s rights now or in the future.
The legal theories under which these demands are made follows:
Right of Publicity
The right of publicity is the inherent right of every human being to control the commercial use of his or her identity; this right is based in state law that created an intellectual property that when infringed upon is a commercial tort of unfair competition. To establish infringement under this right, it must generally be established that: (1) defendant used plaintiff's identity or persona; (2) the appropriation of the persona was for the defendant's commercial advantage; (3) the plaintiff did not consent to the use; and (4) the use is likely to cause injury to plaintiff. Since Mr. Potter has not given you permission to use his identity commercially, and since continued negative emphasis of Mr. Potters legal climb of Delicate Arch is likely to cause him injury, the distribution of NAR for profit satisfies all of the elements above.
Defamation
To establish defamation, the following must exist: (1) A false and defamatory statement concerning the plaintiff; and (2) an unprivileged communication to a third party; and (3) fault by the defendant amounting at least to negligence if not malice or reckless disregard; and (4) special harm, damage to reputation, or the actionability of the statement irrespective of any special harm. Here again, NAR’s publication establishes all elements, specifically NAR: (1) implies some illicitness to my client’s legal climb of Delicate Arch; (2) infers statements from a first person perspective that are false; and (3) falsely portrays the situation and circumstances under which the Delicate Arch video was given to the media.
Invasion of Privacy
To establish invasion of privacy, the following elements must be satisfied: (1) the false light in which the other was placed would be highly offensive to a reasonable person; and (2) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. This letter shall put you on notice that Mr. Potter unequivocally finds NAR offensive for it’s falsity; thus, should distribution of NAR persist, the tort of Invasion of Privacy shall be positively effectuated.
Should you not comply with this letter we will be pursuing injunctive relief, as well as damages for: mental distress and anguish; commercial loss in the form of future potential earnings; and punitive damages, among other legal remedies. If I have not received an affirmative response from you indicating that you have fully complied with the requirements herein by April 20, 2007, I shall commence formal legal action against you. I will accept your response via post to the address listed above, or via e-mail to
