The Tricky Science of the Nasty Letter

 

In May, litigator Marty Singer got one of his typical phone calls. Client Charlie Sheen had heard about a New York gentlemen's club where patrons could pay $250 to slurp sushi off the naked bodies of strippers. The problem? The club had named its VIP venue the "Charlie Sheen Room." So Singer sprang into action. Within hours, he had fired off one of his famous cease-and-desist letters and offered the club a choice: Rename the room or face an immediate multimillion-dollar lawsuit. The name was quickly changed.

With litigation costs skyrocketing and court dockets clogged, a forceful cease-and-desist letter is increasingly a much quicker and more effective weapon than the sharp blade of litigation. But it is not without risks.

Singer, who charges clients about $750 an hour to suppress things like Scarlett Johansson nude photos and John Travolta gay rumors, is one of the masters of the science of the nasty letter. He and his firm, L.A.'s Lavely & Singer, send hundreds of threatening communications each year, many of them to media outlets. "Excellent cease-and-desist letters don't pull any punches. Make them think twice: Pull the plug or be sued," says Singer of his letters, which can total 10 pages and often contain detailed legal analysis as well as ominous phrases like "govern yourselves accordingly."

These days, Singer is hardly the only lawyer in Hollywood sending more threatening letters. "There has definitely been a rise in takedown and cease-and-desist letters in recent years, and for the most part it's because information travels so much more rapidly than even five years ago," says Tim Gorry, a partner at L.A.'s Eisner, Kahan & Gorry.

Google recently reported that it had received 2.5 million written demands last year from the likes of NBCUniversal and the RIAA to remove links to copyright-infringing movies and songs. An MPAA lawyer said that one studio alone was responsible for 41 million takedown notices in 2011.

Now the letters themselves often become viral objects of curiosity online, prompting attorneys to debate whether the publicity that follows a takedown request is worth pursuing the goal of sending the letter.

For example, few people probably would have been aware of an allegation that actor Chris Evans had a sexually transmitted disease before his lawyer sent a C&D letter to an obscure blog and mainstream outlets reported on the threat. Two minor music producers put Kim Kardashian's breasts on the cover of their album, prompting a cease-and-desist letter that generated far more publicity.

Johansson and Taylor Swift may have persuaded sites to pull nude photos, but perceptions of overaggressiveness also have consequences. Travolta and Singer were sued in June by an author whose book claiming the actor visited gay bathhouses prompted a Gawker story that Singer denied in a particularly nasty letter. The author alleged the Singer missive, which claimed he had brain damage, was defamatory.

Mike Masnick, who runs the popular website TechDirt, coined the phrase "The Streisand Effect" to describe the phenomenon of trying to shelter information only to see it travel in unintended ways. Barbra Streisand in 2003 attempted to remove pictures of her Malibu home from a collection of 12,000 images taken by an aerial photographer of the California shoreline. Before her lawyer cried foul, the photos were largely anonymous. Afterward, they spread online.

"The wider masses on the Internet tend to think poorly of any attempt at censorship," says Masnick. "Lawyers who don't recognize this and still think they're entering into a negotiation solely against a single opponent don't seem to do well when they realize that the court of public opinion also can weigh in … and take action."

For that reason, Singer says he tries to talk his clients out of sending letters "95 percent of the time." And he drafts demands with one eye on the public. "I write letters and hope they publish it," he says. "Let people know how bad they are."

Last year, for instance, a Swedish woman claimed she was Elvis Presley's daughter and began making legal claims and showing up unannounced at Graceland. So the Presley estate hired Singer, who wrote a letter threatening that the "malicious false claims" no longer would be tolerated and included all sorts of sordid details about the woman's past that Singer's colleagues found on Facebook, Twitter and other websites. Singer then made the letter public, after which the prominent law firm representing the woman was scared off.

Because overburdened courts and laws like the Digital Millennium Copyright Act are making formal pre-litigation notices a fundamental feature of the judicial process, probably only one in every 10,000 takedown notices gets attention. Most of the time, a remedy is rendered without fuss, and only occasionally do demand letters incite countermoves. But when that occurs, a dispute can provoke strong emotions.

For example, in March, after an artist received a takedown notice from Summit on one of her paintings labeled on Zazzle.com as"11-20-09" -- the same date as when the studio's Twilight was released -- the artist threw up a scorching letter on Facebook that began, "Need a reason to hate Twilight? Or Summit Entertainment?" Soon, the studio faced a fan backlash over why it tried to claim a copyright on a calendar date.

In 2007, at the supposed behest of Prince, Universal Music Group fired off a letter demanding that YouTube remove a 29-second clip of a Pennsylvania woman's son dancing to a Prince song. After the video-sharing site complied, the woman sued UMG and got a judge to decree that copyright owners must first consider "fair use" before sending takedown notices. The five-year-old case is pending over damages.

Despite the increase in nasty correspondence, attorneys say staying cool-headed is usually the best strategy in response.

"I think it's really funny when I get cease-and-desist letters that use italics, bold and underlining all at once," says litigator Aaron Moss, whose book publisher client recently was threatened by a notorious reality TV star who wanted $1 million to walk away. "On several occasions, a well-reasoned responsive letter has caused the other side to just drop its case, with no lawsuit being filed." -- ERIQ GARDNER

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ANATOMY OF A MARTY SINGER MISSIVE: When New York magazine went after client Brett Ratner, Singer returned fire. He breaks down the letter he sent to editor Adam Moss for THR.

Identify the issue: In November, New York magazine published on its Vulture blog a story claiming that Tower Heist director Brett Ratner worked for a corrupt New York stock brokerage while a student at NYU. Singer sprang into action, firing off a letter disputing the allegations. "Facts facts facts," he says of his strategy in crafting letters.

Cite the case law: Singer's letters often contain detailed legal precedent, including examples of similar cases. "You need to point out the law and get some good cases in there to try to establish whatever your legal theory is," he says. "Make them recognize their exposure."

Use the correct language To survive a First Amendment challenge, Hollywood defamation cases require the aggrieved to show "actual malice" by the media outlet or a "reckless disregard" for the truth. So Singer is careful to use that exact language in his letters. "Defamation is the toughest part of the law to prevail on in America, especially for a celebrity," he says. "It's important to demonstrate malice or recklessness."

Brevity counts: Singer's two-page letter is about the right length to get his point across. "I try not to make the letters too long," he says. "Bert Fields never writes one more than a paragraph long."

Expect the letter will leak: Because many media outlets now publish lawyer letters, Singer crafts his correspondence with the nonlegally trained reader in mind. Hence the claim that the story "makes my client look like a crook," he writes. "When you're sending something to the media, you've got to be concerned that whatever you say will be coming out," he says.

Explain the problem: Singer's reference to an "unidentified source hiding behind a cloak of anonymity" lets the publication know that he intends to challenge the origin of the story. "You can't just say something is false. You've got to tell them why they should have known it was false," he says.

The outcome: The headline was changed, but the story remains online.

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