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andanother
climber
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Apr 12, 2007 - 10:49pm PT
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Schoolboy crush re; Dean Potter?
LMFAO!
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ADK
climber
truckee
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Apr 12, 2007 - 11:07pm PT
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i dont know whats worse, crowleys posts or andanother obsessing over them.
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Odub
Trad climber
Cincy, Ohio
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Apr 12, 2007 - 11:15pm PT
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Heres the letter, minus the attorneys name and address.
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:
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unnamable
climber
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Apr 12, 2007 - 11:32pm PT
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That letter is narly.
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klk
Trad climber
cali
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Apr 12, 2007 - 11:44pm PT
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Without offering any judgment on the Potter/Patagonia/Delicate Arch debacle, I am willing to say any lawyer who would commit this sentence to print:
"The legal theories under which these demands are made follows:"
is probably not a partner at a blue chip firm.
I just listened to the song. Pretty effing hilarious. At leazst someone is doing something creative with their non-climbing free time.
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Binks
Social climber
i am of the universe and you know what it's worth.
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Apr 12, 2007 - 11:52pm PT
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If this isn't a troll, then Dean Potter has now proven he can dish it out but not take it.
That song is funny! Odub, nice work.
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couchmaster
climber
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Apr 12, 2007 - 11:57pm PT
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If the lawyer can get you to close up shop, then he can basicly rewrite the first amendment and put weird Al out of business too.
I'd never heard of Odub, and don't like "hip-hop" generally (being old and all) but I have to say "Harder than your husband" as a title has me cracking up.
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Hardman Knott
Gym climber
Muir Woods National Monument, Mill Valley, Ca
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Apr 12, 2007 - 11:59pm PT
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To Dean Potter:
If you can't take the heat, get the fuçk out of the "kitchen"...
(I'll gladly say it to his face...What is he gonna do, kick my ass?)
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Mimi
climber
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Apr 13, 2007 - 12:02am PT
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As soon as you have a lawyer out in front fighting for your reputation, game over.
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Mimi
climber
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Apr 13, 2007 - 12:12am PT
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A Gordian Knot of confusion as usual, AC?! Go hump somebody else's thread.
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andanother
climber
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Apr 13, 2007 - 12:15am PT
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Stop it! Stop it!
All of you stop picking on my Dean!
Us attention whores have to stick together. And if there is one characteristic that defines Dean, it's:
Attention Whore.
He means well, though. He really likes Odub's song. He likes it when people talk about him, you know. But he thought that the song wasn't bringing ENOUGH attention to him. He needed more. So he sent the Cease and Desist letter in hopes that it would stir up even more controversy.
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Off the Couch
Trad climber
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Apr 13, 2007 - 12:18am PT
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I play a lawyer on TV so I'll bite into this bit of nastiness.
First, Odub - you owe it to my profession to post this lawyer's name and email address. He must be outed for writing such execreble prose, as it's an insult to my profession.
Second, klk's point is worth repeating: this attorney writes like a law student. It is cribbed from some cursory legal research or copied from someone else. There's little effort to demonstrate HOW the various 'laws' as he states them apply to this song.
Lawyer's boot camp, first year, teaches to IIRAC every argument
I = Issue - State it clearly and briefly in as few words as possible.
R = Rule - What is the legal rule that applies to the issue?
A = Analysis/Application - show HOW the rule applies to the particular facts of the matter.
C = Conclusion.
I am not expressing an opinion about the underlying merits of Potter's claim that "Odub done me wrong" by implying that the Delicate Arch rock climb was illegal. And it IS possible for incompetent dumb-ass lawyers to actually prevail, so watch your back Odub.
However this opening salvo does not appear very weighty and this lawyer may indeed just be doing a favor. Perhaps this letter is the perfect illustration of a true legal maxim: you get what you pay for.
Jen
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andanother
climber
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Apr 13, 2007 - 12:24am PT
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Odub, I'd hate to see you get in trouble for this, but could it be possible that someone is playing a prank on you?
I say you call their bluff.
But that's only because I have no stake in this, and nothing to lose.
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Toker Villain
Big Wall climber
Toquerville, Utah
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Apr 13, 2007 - 12:27am PT
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This is a troll.
The letter is bogus.
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Elcapinyoazz
Social climber
Jarhead City, CA
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Apr 13, 2007 - 12:30am PT
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"Joplin Enterprises v. Allen, 795 F. Supp. 349 (W.D. Wash. 1992).
In Joplin, the District Court applied California's Section 990 to hold that a two-act biographical play about deceased vocalist Janis Joplin was not actionable.
Janis Joplin's devisees alleged that the drama was a copyright infringement and misappropriation of Joplin's rights of privacy and publicity. The District Court, Judge Coughenour, concluded that Joplin's estate could not maintain a viable right of publicity claim under California Civil Code '990 because, by its terms, that section applies to "merchandise, advertisements, and endorsements" and exempts any "play," "book," or "musical composition" from liability.
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"Dora v. Frontline Video, Inc., 15 Cal.App.4th 536, 18 Cal.Rptr.2d 790 (Ct.App. 1993).
In this action, the California Court of Appeals affirmed Superior Court Judge David Horowitz' grant of summary judgment against surfer Mickey Dora, who complained that a videotape documentary misappropriated his right of publicity.
In 1987, Frontline Video, Inc. ("Frontline") produced a video documentary, "The Legends of Malibu," a documentary that chronicled the early days of surfing, showing contemporaneous footage of famous surfers, including Mickey Dora.
Arguing that he was never interviewed nor photographed by Frontline and did not consent to any use of his name, photograph, likeness, or voice, Dora sued Frontline for common law and statutory misappropriation of his name and likeness. Superior Court Judge David Horowitz granted summary judgment to Frontline and Dora appealed.
Writing for the California Court of Appeal (Second District), Judge Nott held that Frontline was not required to obtain Dora's consent and affirmed the summary judgment because the documentary contained matters of public interest and "public affairs" exempted from liability under Section 3344(d): "[Surfing] has created a lifestyle that influences speech, behavior, dress, and entertainment, among other things. . . . It would be difficult to conclude that a surfing documentary does not fall within the category of public affairs." Id. at 546."
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This lawyer is pissing in the wind and knows it. C&Ds are common tools of intimidation when the scumbag lawyer (but I repeat myself) knows they have nothing.
Publicity law is state law, and varies a lot, but it's blatantly obvious that this guy has nothing. How many songs mention public figures? Millions.
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JLP
Social climber
Fargo, MN
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Apr 13, 2007 - 12:49am PT
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Wow – too funny – Potter and Mr Jr Associate - what a couple of wankers.
Reads to me like Potter has no legal standing, and the lawyer admits it in the letter. Of course, everyone already knew that.
I'd take no action whatsoever. A response will either validate or enrage, depending on your tact.
JLP
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HighDesertDJ
Trad climber
Arid-zona
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Apr 13, 2007 - 01:34am PT
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I think that is incredibly lame. Downloading the song and putting it all over the net.
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HighDesertDJ
Trad climber
Arid-zona
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Apr 13, 2007 - 01:38am PT
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Do you even mention Dean by name in the song?
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Mungeclimber
Trad climber
one pass away from the big ditch
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Apr 13, 2007 - 01:50am PT
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scan the full letter (redacted attorney name addy is fine)
If proven real, then we pursue a get out of dodge campaign on Dean. I seriously wouldn't want that kind of behavior condoned in my community.
I mean, f*#k.
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mathiasbones
climber
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Apr 13, 2007 - 02:05am PT
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HIGHDESERTDJ-
From "Not all roses" -
"Hi my name's Dean, I do crazy things.
I like to see my photograph in the magazines.
But that's not important, I climb for the soul:
Solely for photos and promo videos.
Didn' ya'll see me on the 10 0'clock news?
Soloing that arch with my camera crew?
See I communicate with rock and fact is:
Delicate arch told me to jeopordize access."
Pretty specific.
SCOOTER ("What is just as funny to me though, is some little bouldering dork is Bobbing his head 'mixing beats'")
I'd give him more credit than that.. http://vids.myspace.com/index.cfm?fuseaction=vids.individual&videoid=2014395621 (poor quality video, high quality climbing.)
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