Dear Ms. Landgraf:

I am writing to you regarding your recent correspondence with Kevin Maples related to the title "murder.com" and the intellectual property rights thereto. Mr. Maples has forwarded your e-mails and copied me in his responses. My intention in writing is to provide you with some background about the players and circumstances involved, as well as to clarify the positions of Mr. Maples and lfino.com. In particular, I think it important to state our position that though you may have registered a copyright in a screenplay that uses the title "murder.com," titles themselves are not copyrightable, and though you may have registered the trademark "murder.com," registration itself does not mean that the trademark would withstand judicial scrutiny under the circumstances.

Mr. Maples, as should now be clear from his e-mails, is the owner and operator of the lfino.com Web site where you found the short story "murder.com." Matt Samet is the author of the story. For the sake of disclosure, they are two of my oldest friends, I believe very strongly in both of their work, and I will, therefore, respond as necessary to any attacks on that work. As Mr. Samet is presently out of the country, we cannot verify the date his story was created, but whose use of the title is prior is, as discussed below, relatively unimportant.

Your initial letter made several legal assertions, which are either unsupportable or, at best, questionable. You state that Mr. Samet's use could only be "a working title" because you have already copyrighted and trademarked the title; you further indicate, for the same reasons, that the title could not belong to the author of the story ("You really need to investigate the titles of your stories before publishing them as your own."). "[W]ords and short phrases such as names, titles, and slogans" are not subject to copyright. See 37 C.F.R. sec. 202.1. Thus, as you conceded in your e-mail dated June 11, 2000, your claim to have copyrighted the title "murder.com" is inaccurate.

Even if titles were copyrightable, whether or not you would be the legitimate owner of the copyright is questionable, since others registered works with the same title prior to you and Mr. Samet. The following is from the Library of Congress database where your screenplay is on record:

TXu-787-996                  (COHM)        ITEM 1 OF 3 IN SET 1
TITL: Murder.com.
PHYS: 791 p.
CLNA: acDennis Wade  McManes
DCRE: 1997           DREG: 10Mar97
MISC: Rights & permissions info. on original appl. in C.O.
ECIF: 1/B
READY FOR NEW COMMAND:
display item 2

TXu-858-008                  (COHM)        ITEM 2 OF 3 IN SET 1
TITL: Murder.com : a novel.
PHYS: 517 p.
CLNA: acJeffrey P.  Johnson
DCRE: 1997           DREG: 5Jun98
MISC: Rights & permissions info. on original appl. in C.O.
ECIF: 1/B
READY FOR NEW COMMAND:
display item 3

TXu-888-558                  (COHM)        ITEM 3 OF 3 IN SET 1
TITL: Murder.com : original screenplay.
PHYS: 72 p.
CLNA: acMichele  Landgraf , 1963-
DCRE: 1998           DREG: 8Jun99
MISC: C.O. corres.
ECIF: 3/D

http://www.teako170.com/murder.html

http://www.screenwritersutopia.com/pros/webmaster/article898.html

So, though your screenplay itself is protected, you have no claim to the title at issue.

Of course, you have additionally asserted that you have trademarked the title "murder.com." My admittedly limited search of the Patent and Trademark Office's on-line database showed no registered or pending trademark of the phrase. Even if you have submitted the paperwork for a trademark, that alone does not mean that a court would rule that it is valid. Among the reasons that that might be true are, most particularly, that your use of the mark does not have priority, since others, particularly the owners of the domain murder.com, used the mark in interstate commerce before you. See 15 U.S.C. sec. 1127. Additionally, although because of the nature of your asserted mark, a court might not require proof of secondary meaning, if it did, you would be unlikely to be able to make such proof, since your use of the mark has not acquired any such meaning in the marketplace--your screenplay is, at present, totally unknown and, therefore, unassociated with anything in the public mind. If you continue to assert your right to mark against Mr. Samet and lfino.com, we will oppose the registration of the mark before the Patent and Trademark Office. We have already contacted the owners of the murder.com domain and would attempt to enlist their support in that opposition.

Finally, I am compelled to say a few things about the manner in which you initiated this contact. All of us associated with lfino.com can appreciate the need to protect one's intellectual property, particularly in this age of simple and rapid reproduction, compounded by frequent failure to give credit to appropriate sources. Nevertheless, and despite your protestations to the contrary in your e-mail dated June 11, 2000, it does not require a stretch of the imagination to interpret your initial e-mail as a threat. You there attempted to characterize the author/site owner's right to the use of the title as inferior to your own and then mentioned your attorneys and the ambiguous "paperwork." Even out of context, that is a threat. Within the context of the Internet, it is assuredly a threat, given the frequency with which those with greater resources use mere intimations of legal action to prevent others from continuing in Web-related activities, even if those activities are legally protected. Thus, I suggest that, in your future ethereal meanderings and efforts to protect the rights you do legitimately have in your screenplay, you first investigate the facts of authorship much more carefully than you did this time. Your initial e-mail was full of false assumptions that easily could have been cleared up be clicking on a few links on the lfino.com site. I would further recommend that you tread a bit more lightly in dealing with others about these issues; that you become a bit better informed about the law, if you are going to continue to make legal assertions; and that you proceed in the future with slightly more good humor and grace than you displayed in your initial e-mail. In other words, the Net needs fewer, not more bullies who get what they want through threats rather than legitimate and reasoned requests.

If you have any questions about this e-mail, or if you in fact intend to make an actual cease and desist demand, to serve Mr. Maples or Mr. Samet with any "paperwork," or to involve your lawyers or those of whatever production company is associated with your project, please let me know.

Very truly yours,

Sky Woodruff, Esq.