Today (January 25, 2011), we received a message from Greg Gumbel's representative stating that we are making an "unauthorized misappropriation of Mr. Gumbel's personal characteristics," which is "an infringement of Mr. Gumbel's legal rights" subjecting us to "serious legal liability." We are "hereby directed to immediately remove the aforementioned video from the Internet." Should we fail to "comply with this demand" Mr. Gumbel will "pursu[e] any and all legal remedies" available to him.
As a legal matter, this is complete nonsense. Note that Mr. Gumbel is not asserting that he owns the copyright in the video, but rather that Desert Biofuels Initiative is infringing his right of publicity by posting the video. To succeed with this claim, Mr. Gumbel would have to show that we are creating a false and misleading impression that Mr. Gumbel is endorsing some DBI product or service. That is, publicity rights claims involve unauthorized use of a celebrity's name or likeness for a commercial purpose. As should be blindingly obvious, we are not asserting that Mr. Gumbel endorses DBI in any way whatsoever. We sell no products or services. We have simply archived material from an important public forum, with the authorization of the party who provided the video. Any claim that DBI is infringing Mr. Gumbel's publicity rights isn't even remotely plausible.
Mr. Gumbel appears to be engaged not in an intellectually honest legal dispute, but rather in overt legal bullying. Mr. Gumbel presumably wants this material off the Internet and out of public discourse because it is deeply embarrassing to him. And he should be ashamed: as extensively reported by this watchdog site and summarized by the Center for Media and Democracy, Mr. Gumbel was involved in an extraordinary breach of journalistic ethics, under which the subjects of "news" stories paid for favorable coverage. This video appears to be an example of the scandal described by the watchdog group. Mr. Gumbel's shame (or whatever other motive is driving him) is no excuse for using spurious legal claims to try to bully organizations like DBI into taking legitimate, newsworthy material out of public discussion.
Indeed, Mr. Gumbel's demand that we take down this material makes the case for keeping it up even stronger. Attendees at our workshop, and researchers, scholars and other stakeholders tracking the development of sustainable biofuels in Arizona need to understand the context of this video -- which we were not aware of prior to Mr. Gumbel's missive. Knowing the context provides insight into the featured company, a key player in the development of an AZ biofuels infrastructure. Separately, it also now provides insight into the tactics of an individual involved in a remarkable journalistic scandal. Taking the video down would be inconsistent with our organization's public interest objectives.
We have provided a copy of Mr. Gumbel's message to us for inclusion in the database at the Chilling Effects Clearinghouse, an organization devoted to stopping attempts to use intellectual property and other laws to silence online users. We've also pasted the full message below.
Text of message received:
Unauthorized Use of Greg Gumbel's Name and LikenessJanuary 25, 2011
Re: Unauthorized Use of Greg Gumbel's Name and Likeness
Dear desertbiofuels: :
Please be advised that IMG is the agent and representative of Mr. Greg Gumbel. It has come to our attention that you are currently posting a video on the Internet [Ihttp://www.YouTube.com/watch?v=1cZXhOb0PgY&feature=related] which incorporates the name, likeness and performance of Mr. Gumbel.
You do not have the right to use the name, likeness, performance or any other characteristic of Mr. Gumbel in this video or otherwise. The unauthorized misappropriation of Mr. Gumbel's personal characteristics is an infringement of Mr. Gumbel's legal rights. Such infringement subjects you to potential serious legal liability.
Accordingly, you are hereby directed to immediately remove the aforementioned video from the Internet and cease and desist all further use of Mr. Gumbel's personal characteristics. Please provide your prompt written assurance within three (3) business days that you will comply with this demand.
Should you fail to comply with the terms of this correspondence, we will consider immediately pursuing any and all legal remedies available to Mr. Gumbel.
SVP Business Affairs
304 Park Avenue South
New York, NY 10010
cc: Greg Gumbel
Lash & Goldberg LLP
Sent to: desertbiofuels