Potter, Delicate Arch, a Rap Song and a Lawyer

© Dean Potter
Americans love their 'cease and desist' letters.

If someone slanders you, infringes your copyright or just generally pisses you off, you can get a lawyer (or even do it yourself) to send a a letter asking them to stop their despicable behaviour.

This is what happened recently to the Ohio climber Kris Hampton, who is also known as the rapper Odub.

What did he do?

Here at UKClimbing.com we have fairly comprehensively covered the ascent of the Delicate Arch in Utah by the very talented free soloist, Dean Potter.

Dean climbed the Delicate Arch solo, and had his ascent filmed for promotional purposes (it wasn't a first ascent). Problem was, climbing access is delicate in the National Parks of the USA and particularly in the desert areas. In Arches National Park climbing 'named' arches is not allowed. Dean managed to upset the National Park, the USA's climbers' access advocacy group, the Access Fund, and a lot of American Climbers, and provoked discussion at UKClimbing.com (click here)

At the time the Patagonia company who sponsored Dean and his wife, Steph Davis, stood behind Potter but later had a change of heart and mind and fired them both (see UKClimbing World News on Mar 21, 2007)

Enter Kris Hampton who in April this year posted his rap song, “Not All Roses,” to the Web; it sends up Potter's controversial free-solo ascent of Delicate Arch.

Hampton says, "The song sends up professional climbers who claim they don't like having sponsors or being in the spotlight, yet seek publicity by, say, distributing film of themselves on the Internet." He calls this behavior egocentric and used Potter as an example in his song to get climbers to think about the nature of publicity and the responsibility that goes with it, writes Whitney Levine.

Potter didn't like it and Hampton received a 'cease and desist' letter from Potter's lawyer.

You can read the full sordid details courtesy of Whitney Levine at climbing.com


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23 Apr, 2007
Come on Mick, post us a link to the lyrics (they aren't obvious on the links you gave)
23 Apr, 2007
23 Apr, 2007
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
23 Apr, 2007
23 Apr, 2007
-))
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