Tiffany Smiley is running for Patty Murray’s Senate seat in the state of Washington. The polls have tightened with Smiley within striking distance, barely three percentage points behind. Ms. Smiley is a smart, determined woman who is a trained triage nurse, and battled the VA and the Pentagon after her husband was blinded in Iraq. She is articulate and seems well suited for the rough game of politics. The fact that she is attractive, in contrast to Murray’s plainness, doesn’t hurt.
Smiley ran an ad recently that showed her standing in front of an abandoned building that once housed a Starbucks. The ad attacks Murray’s “reckless policies” on crime, and closes by reminding voters that Murray has been in the Senate for 30 years. It includes overlays of Seattle Times headlines, in which it discusses crime.
“You can’t even get a cup of coffee from a hometown shop on Capitol Hill,” Smiley says, as she points at the abandoned building with graffiti defacing the storefront. Effective and on-point. It is a very good ad.
What was the response? The Seattle Times sent a cease and desist letter to someone named “Jane Smiley.” No, I am not kidding – the dolt lawyer who decided that The Seattle Times was on solid legal ground couldn’t even get Smiley’s name right. The Times claimed that Smiley was using copyrighted material without permission.
One problem: She doesn’t need permission. Smiley’s ad is quoting the Seattle Times, and the ad reproduces the Times logo and banner because that’s where the quotes come from. It’s a political ad. It is clearly not an endorsement by the Seattle Times-and no reasonable person would take it as an endorsement.
Smiley’s campaign quickly told the Times to pound sand. Then a smart lawyer working for her campaign pointed out that if the Times considers that an unauthorized use (without a license), then Murray using the same or similar banners and copyrighted material in her ads must have generated a cease and desist letter. It didn’t, of course, because The Times has endorsed Murray. Smiley filed a complaint with the Federal Elections Commission, claiming Murray was not granted a “license” when she did the same thing in 2016. The campaign’s complaint said that:
“If a corporation makes its resources available for free, it must do so for all candidates.”
I don’t expect the dolt lawyer who sent the letter to see the error of his or her reasoning, but Smiley is right. Smiley also has “fair use” and political speech arguments, as well. In short, The Seattle Times is, apparently, employing petty and stupid lawyers.
Incredibly, Starbucks also sent a cease and desist letter to Smiley, at the same time. At least the dolt lawyer(s) at Starbucks spelled Smiley’s name right. An improvement, but that is all they got right. Starbucks’ claims and demands are absurd. It is a specious and silly demand. The building is a public building on a public street. There is no visible Starbucks logo. But there is a whole lot of graffiti. By the way, if Starbucks had a valid argument, the vandals who spray-painted graffiti would have a stronger argument. If I was handling this matter for Smiley I would reply thusly:
Hi [ Starbucks and silly lawyers]
Your cease and desist “letter” is specious, stupid, and groundless – but you know that. Sue us. Please note that if you do, I will move for sanction pursuant to Rule 11 and I will file a complaint(s) with the State bar against any lawyer whose names appears on the complaint. We won’t accept any settlement.
In summary, your cease and desist is rejected. Sue us.
Kindly
Jim Thompson