30
Apr/04

Reading Other People's Confidential and Copyrighted Mail: Ahnold v. Bobbleheads


The Smoking Gun reproduces here a letter from Arnold Schwarzenegger’s lawyer to a manufacturer of Arnold bobble-heads.  The letter alleges breach of right of publicity.

The first interesting question is: should an unauthorized bobble-head of an actor be treated differently from an unauthorized bobble-head of a public official?

Second, the next to last line of the letter is:

“This is a confidential legal notice and may not be published in whole or in part.”

Lastly, the letter concludes with:

“Any republishing or dissemination of same, including but not limited to the printing of the contents hereof on the Internet, shall constitute a copyright infringement and will subject the republishers) to civil liability for such actions.”

Update:  This post has been picked up by other blogs which have the comment feature enabled.  Some posters are not getting the confidentiality point.

Confidentiality is lost when disclosed in an unprotected communication. Confidentiality is ordinarily protected when (1) the confidential information is disclosed to someone who owes you a duty of confidentiality (your priest or your lawyer, for example) or (2) the information is disclosed under a contract which imposes a duty of confidentiality.

You cannot foist a duty of confidentiality onto a stranger, such as someone to whom you send an unsolicited demand letter.

It is conceivable that adversaries could agree to deem their communications to be confidential.  Of course the parties would have to manifest the ordinary elements of contract – offer and acceptance (If you agree to keep this confidential, I will answer your question – agreed?).

Think of the public policy ramifications of granting confidentiality to unsolicited communications.  Evil law firms could send demand letters to widows and orphans accusing them of imaginary violations of statutes, asking them for undeserved damages – and threatening them with further damages if they tell a soul.

 

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