When ‘Lol, No’ Is Not Enough: Lawyer Explains Why Bogus Takedown Over ‘Fuck The LAPD’ Shirt Should Result In Paying Legal Fees
You may recall last month’s hilarious story of lawyer Mike Dunforth’s response to a vexatious angry demand letter from IMG, representing the LAPD Foundation, claiming that a t-shirt with the following “Fuck the LAPD” logo violated its IP rights:
The response was as simple as it was direct: Lol, no.
As we highlighted in our post, the threat letter was ridiculously vague about what “IP” the LA Police Department Foundation believed it owned. It’s not difficult to figure out why: because nothing in the image above could possibly constitute either trademarks or copyright belonging to the LAPDF. Still, we had a few paragraphs explaining how if they claimed copyright, it would be wrong and another few paragraphs on why they’d be wrong about trademark too.
It turns out that in addition to the “LOL, no” letter, Dunford also sent a more detailed response to someone higher up at IMG, the rights company that sent the original, basically asking why his client, Cola Corporation (makers of fine anti-police wear), shouldn’t seek attorneys’ fees from IMG for their vexatious takedown.
If you’re wondering why the two separate letters were sent, it’s almost certainly because the first short one was the response. This second, much longer (but still hilarious) one was to basically say “y’all fucked up so bad, that you probably need to pay us for the time you wasted.”
The letter is a rollicking good time, as posted by Cola Corporation on Bluesky:
The second letter that @questauthority.bsky.social sent to LAPD reps on my behalf. Even more savage than “LOL, no.” I’ve highlighted my fave parts. What are yours?
— Cola (@cola.baby) May 13, 2024 at 12:30 PM
I’ve extracted the letter and PDF’d it, which you can see embedded below.
It’s a hoot, and shows that Dunford is good for more than simply “lol, no” responses.
I write to give you and the thin-skinned bullies you represent an opportunity to provide whatever reason you can think of why my client should not seek to recover attorneys’ fees in this matter under 17 U.S.C. § 512(f) — and, really, to ask you to explain why any of you ever thought any of this was in any way a good idea.
Tell us how you really feel, Mike.
As you know, and I know, and every competent intellectual property lawyer knows, the ‘C’ in DMCA stands for “Copyright.” Unsurprisingly, a valid DMCA takedown therefore requires a valid, good-faith claim of copyright infringement. But you obviously do not have any such claim — or anything that is in the same time zone as such a claim. Neither the LAPDF nor the Los Angeles Police Department itself owns a copyright to the acronym “LAPD.” Nobody does, and nobody can. It is black letter law that individual words and short phrases are not subject to copyright protection. We both know that. Students in Intro to IP classes know that. But as a professional courtesy and on the off chance you somehow forgot, the footnote call at the end of this sentence is a relevant string cite.
I’m going to just post an image of the two footnotes on this page, because, for some reason, the OCR isn’t working great on the PDF copy I made, so I’m retyping all the quotes in this article, and there’s no way I’m retyping all these citations. But, yeah, you get the idea:
If you cannot see it, it’s a long string of recent cases that all highlight the point stated above, and then noting (“wow, that’s a lot of cases saying the same thing from just the last six months, right?). For the sake of brevity, we’re not providing you with a citation from every federal district court to prove the point. We’re pretty sure we could.”
Now, I wasn’t entirely sure that DMCA 512(f) would apply, because looking over the original letter that was sent to Cola Corporation that we posted with the original article, it does not directly purport to be a DMCA takedown. I recognize that “DMCA” has become shorthand for any sort of request for a takedown or any kind of copyright claim, but to be a true DMCA 512 notice for the purpose of demanding a takedown it requires some specific things.
However, as Dunford’s more verbose letter indicates, the guy who sent it, a lawyer named Andrew Schmidt, gave the document the title: “DMCA Takedown Notice – LAPD – The Cola Corporation.” And then emailed it with the subject line “DMCA Takedown notice.” It may be fine (well, not fine, but understandable) for a lay person to use the shorthand of calling something a DMCA notice. But, not a lawyer.
It seems clear that Schmidt was either lazy… or (more likely) was hoping that because “DMCA takedowns” are so widely known as a concept, that simply calling his document as such would lead an unsophisticated individual at Cola Corporation to get scared and fold.
Dunford further makes it clear that the format of the letter “mirrors the requirements” of an official DMCA takedown notice, to effectively argue that even if it wasn’t officially a “DMCA takedown notice,” it was substantially close enough that Cola Corporation might actually have a legitimate 512(f) claim.
Now, if you’ve followed Techdirt for any length of time, you probably know that DMCA 512(f) claims for filing a misleading DMCA takedown claim are nearly impossible to win for a variety of (mostly stupid) reasons. But, damn, if this weren’t a case where it’s pretty clear that, not only was IMG misrepresenting stuff, but that they knew full well they were misrepresenting stuff. And that means that it’s a situation where a 512(f) claim might actually be legit.
17 U.S.C § 512(f) provides a cause of action to those who are harmed by a knowing material misrepresentation that material was infringing. The representation that “Fuck the LAPD” infringes on the LAPD’s copyrights is clearly false. As noted above, your client owns no copyright relevant to the alleged infringement, because the phrase “LAPD” is not remotely subject to copyright protection. As it is literally impossible to infringe on a copyright that cannot exist, the “DMCA takedown” misrepresented both the ownership and infringement of the copyright. And it did so materially — it affected my client’s response to the purported takedown by leading it to pay me to deal with your blatant bullying.
And, yes, the one area where 512(f) claims most often fall down was whether or not the sender really “knew” it was misrepresenting things. In the Lenz case, famously, the court said as long as the sender subjectively believed the notice was legit, that’s all that’s necessary. But here…
Your company does this type of work professionally. Schmidt is an attorney, senior counsel to your company. Either he knew that there was no conceivable copyright claim here, much less a good faith one, or he is staggeringly incompetent. I would honestly prefer not to believe that IMG knowingly sent a false DMCA takedown to aid and abet a police organization in bullying my client — who was, at the time you sent the document containing the knowing misrepresentations, an unrepresented party — for exercising its First Amendment rights. Yet I simply cannot believe IMG hires attorneys so terrible at their job that IMG was unaware that its client did not have a copyright claim when it sent a DMCA takedown based, in part, on allegations of copyright infringement.
Ouch.
And while the DMCA 512(f) claim is specific to the copyright arguments (the C part, remember), the letter also makes it clear that IMG can’t get away with claiming there was at least good faith in the trademark part. Because there clearly is not.
I could explain why such a claim would fail by methodically working through the eight Sleekcraft factors, but, really, all that would do is waste all of our time. Let’s not pretend: it is inconceivable that a reasonable person, no matter how unobservant or hurried, would be confused into thinking that the Los Angeles Police Department or the Los Angeles Police Department Foundation are the source of “Fuck the LAPD” merchandise.
There’s a fun footnote 7 wedged in that paragraph for law nerds, but I’ll leave that for you to check out on your own.
The next part is just good old-fashioned fun:
That only becomes more obvious when the First Amendment implications of this deplorable incident are examined. The LAPD is to state the obvious a police department. They are an arm of the state. Criticism of the state is protected speech even when it is profane and disrespectful; “speech cannot be restricted simply because it is upsetting or arouses contempt.” Snyder v. Phelps, 562 U.S. 443, 458 (2011). That, too, is black-letter law, taught in every law school. The First Amendment acts to ensure that “individual expressions of ideas remain free from governmentally imposed sanctions,” Hustler Mag., Inc. v. Falwell, 485 U.S. 46 (1988), it does so when that speech is critical of the government, and it even does so when that speech insults those in power. That’s not just basic law. It’s part of what makes America America.
I’m sure your response to that is going to be something along the lines of “but we don’t actually represent the LAPD, we’re acting on behalf of the LAPD Foundation, which really is different from the LAPD and just wants to protect its economic interests in selling licensed stuff that says “LAPD” on it. But we all know that’s not what this was about. There’s no likelihood of confusion, no infringement of copyright, no conceivable reason to think that people who like the LAPD will stop buying LAPD stuff if they can instead buy a shirt that says “Fuck the LAPD”. This isn’t about the IP. It’s about the LAPD and the LAPD Foundation being thin-skinned bullies who resent the existence of “Fuck the LAPD” merchandise.
Too damn bad.
The LAPD is not expected to like the existence of “Fuck the LAPD” merchandise. But their sole remedy is to not do things that result in people wanting to buy and wear “Fuck the LAPD” merchandise. I understand that would be a difficult task. But I promise you that it would still be easier than trying to get a court to rule that “Fuck the LAPD” shirts violate the LAPDF’s intellectual property rights.
To be honest, when we wrote our original post on Techdirt about all this, I had wanted to dig in deeper on all of these issues but felt like maybe I was going too hard in response to an issue that really only required “lol, no.”
But I do appreciate that Dunford also was willing to go deep and point out the obvious absurdities here. I eagerly await finding out if IMG ever replied…