What Should I Do If I Receive A Demand Letter That Claims It Is “Confidential and Not For Publication”?
There is a ‘high-powered’ law firm named Lavely & Singer. Its website quotes a NY Times article referring to it as the ‘Guard Dog to the Stars‘ and notes that the firm “shields celebrities from all kinds of annoyance, and is now a mainstay of Hollywood.”
Back in 2004, I noted in a blog post, discussing a demand letter the Lavely firm had sent on behalf of Gov. Schwarzenegger, that the letter concluded with:
“This is a confidential legal notice and may not be published in whole or in part . . . 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.”
I noted at the time that both of these assertions are incorrect. The legal notice was not confidential, to the extent that even if the letter did contain information that had been confidential to the sender, the information was being disclosed in an uncontrolled manner (in that it was an unsolicited transmission not made pursuant to any agreement).
To the extent that the letter contained potentially copyrightable matter, the recipient retained fair use rights.
The Lavely & Singer firm clearly don’t read the Trademark Blog, or, more probably, began reading it regularly after 2004, so it hasn’t really changed its letters. Here we see a letter it sent to Buzzfeed last November regarding Cosby allegations, concluding with: “This letter is a confidential legal communication and not for publication.” Here, we see a letter the firm sent two days ago to Lipstick Alley regarding Jared Leto, with the same assertion of confidentiality.
As a practical matter, if you send a letter saying ‘don’t publish this,’ to a gossip site . . .
As a legal style question – what say you? Granted, a law firm trying to protect its client from allegedly defamatory content is in a tight spot. A lie gets halfway across the world before the truth has a chance to get its pants on. Either Mark Twain or Churchill or somebody else said that, Google isn’t sure. So one can understand the motivation to threatening the recipient of the letter with terror of all sorts.
But if I were to representing the recipient of the letter, my reaction to a letter that contained a ludicrous legal assertion would be:
“well, if you made that shit up, what else are you making up? and a judge would be curious on that point as well.”
Update: More coverage on the weighty Jared Leto issue.