How Not to Write a Cease and Desist Letter — Part II

by Paul Alan Levy

Several years ago, the notorious Hollywood mouthpiece Martin Singer sent a demand letter to the San Diego Reader, in reaction to its having inquired about a pending law suit, threatening to sue it in the event that any story it might write about the subject of the inquiry and further threatening to file a lawsuit in the event that its demand letter was published.  The Reader not only published the story but also made the demand letter the focus of a separate story, while incidentally repeating the allegations that Singer was so anxious to suppress.  So far as I know, Lavely & Singer never followed up on the threat to sue either for copyright infringement or for defamation.

Yesterday, the online gossip site Lipstick Alley received a demand letter from one of Singer’s staffers, Allison S. Hart.  Hart objects to a handful of posts about actor Jared Leto’s alleged affinity for rough sex and about the size of a certain part of his anatomy (here and here) and warns that if Lipstick Alley does not remove the posts immediately, both it and its users face imminent legal action and “millions of dollars in liability.”   Given that all of the posts are more than eighteen months old, far beyond the statute of limitations, and that Lipstick Alley is plainly immune from suit under section 230 of the Communications Decency Act, the threat of litigation is a joke.    My response to her letter points out these and several other reasons why her threatened lawsuit cannot possibly succeed.  And, considering that she is apparently threatening to file suit in California court, such a lawsuit would likely cost her client substantial fees under that state’s anti-SLAPP statute.

But Hart compounded her error by beginning her demand letter with the assertion that her letter is “confidential” and that “publication or dissemination is prohibited.”   When the late John Dozier’s law firm showed a tendency to include that line in its demand letters, I posted on Public Citizen’s own web site a demand letter that one of his associates had sent to one of my frequent clients, a consumer commentary site, and, in a response, invited the associate who had the misfortune to have put his name on that particular letter to file suit for copyright infringement if he genuinely believed that he had a sound basis for doing so.  Dozier continued to talk online about his copyright theory, but the controversy received sufficient notoriety online — the very environment in which Dozier was trying to develop his business by posturing himself as the ultimate anti-Levy — that the threat dropped out of his firm’s demand letters.

Lavely & Singer has been sending bullying letters on behalf of its Hollywood clients for years. It apparently prides itself on Singer’s reputation “as a ‘pit bull’ who has ‘rabid’ tactics and the nickname ‘Mad Dog’” (by posting on his firm's own web site a long excerpt from a magazine article containing this language). This sort of adjective apparently brings him a good deal of business.   But his firm's claim that nobody can republish its letters deserves challenge.