This is a photo of the NYSE trading floor. It was taken on March 3 by Reuters photographer Lucas Jackson, and Reuters holds the copyright. The only permission I need to run this photo is that of Reuters. The NYSE, however, thinks otherwise:
NYSE has common law and Federal trademark rights in and to NYSE’s name and images of the Trading Floor… Moreover, NYSE owns Federal Trademark rights in one depiction of the Trading Floor and common law rights in the Trading Floor viewed from virtually any angle (collectively, “Trademarks”). Accordingly, NYSE has the right to prevent unauthorized use of its Trademarks and reference to NYSE by others.
That’s from one of the most ridiculous nastygrams I’ve seen in a long time, sent by NYSE chief counsel Kendra Goldenberg to Talking Points Memo. If Goldenberg really believes what she’s saying here, none of us is even allowed to mention the name NYSE if we’re not authorized to do so by the NYSE itself — let alone show a photograph of it.
The back story here is that TPM used a photo of the NYSE trading floor back in November, and then suddenly got the cease-and-desist note a couple of days ago, after everybody had forgotten about their story. At no point in the intervening months did the NYSE bother asking TPM nicely whether the photo was really relevant to the story or the right way to illustrate it. Instead, they just came out with a ridiculously tardy — and legally extremely dubious — c&d:
We demand that TMP remove all images of the Trademarks immediately. If we do not receive your response and written confirmation of the removal of all Trademarks within ten (10) days of your receipt of this letter, we will have no choice but to pursue further remedies.
This is an outright lie from the NYSE. TPM did the right thing, and stood its ground, refusing to take down the photo it had every right to use. That’s the end of the story: there’s no way that the NYSE will “pursue further remedies” at this point, they’ve made themselves enough of a laughingstock already. Rather than pursuing further remedies, then, Goldenberg and the NYSE are going to lick their wounds and slink quietly away.
The lessons here are clear: always publish any c&d you receive — it’s the best possible response. Don’t be intimidated by legalese; know your rights. And encourage other publishers to do the same thing: if big companies know that their nastygrams are likely to be ridiculed across the internet, they might be less likely to send them out.
I am a bit worried by the bit of Josh Marshall’s blog post where he says that “TPM is represented on Media and IP matters by extremely capable specialist outside counsel”. You shouldn’t need expensive lawyers to stand up to bullies — and in fact you don’t need expensive lawyers to stand up to bullies. In the vast majority of cases, a c&d is the only bullet these companies will ever fire: if it doesn’t do the job on its own, they won’t take things any further. Unless and until you get an actual lawsuit, there’s no need for lawyers.
Meanwhile, it’s worth wondering how many other publications have started receiving nastygrams from Kendra Goldenberg when they portray the NYSE in an unflattering light — and how many of them have simply folded rather than risk a legal battle with a multi-billion-dollar multinational corporation. That’s why c&ds should always be published, even if you comply with them.
If NYSE knows that even successful c&ds will always be accompanied by widespread ridicule, it might start respecting everybody else’s right to talk about them in any way they please. And it might instead start using the much more intelligent tactic of simply asking nicely if it thinks that it deserves some kind of change or edit.
Speaking personally, when I get a request for an edit or correction or update, I nearly always comply. Blogs are iterative; I make mistakes; I like to correct them. But the one time I don’t make corrections is when there’s been a legal letter sent straight to my superiors or to Reuters’s in-house counsel. At that point, things are immediately adversarial, and out of my hands. So if you want some changes, ask me nicely, directly. It’s much more effective than setting the likes of Kendra Goldenberg on my lawyers.