August 27, 1999
J. Andrew Coombs, Senior Counsel
The Walt Disney Company
500 S. Buena Vista Street
Burbank, CA 91521-6251Dear Mr. Coombs,
I am in receipt of your letter dated August 19th which begins with the words "Certified Mail." I wish to inform you that your letter was not sent "certified mail" nor was the thirty and one half cents postage affixed to the envelope sufficient to pay for such a service. Surely you do not expect to receive corporate welfare when you harass and intimidate environmental activists who chose to speak out against America's Biggest Rat?
I would like to remind you that in this country we still enjoy a basic right to free speech. It is true that corporations such as Disney do their best to stifle these rights every chance they get, but so far you have failed to suppress my right to engage in political commentary. Perhaps a few more million dollars in political contributions will do the trick. Or perhaps you'd prefer to sue a volunteer activist in the hope that I will stop rubbing Mickey's nose in his own excrement.
The "unauthorized manufacture and distribution of the Product (said T-shirt) bearing copyrighted artwork" to which your letter refers was created purely as an object of political comment. The wearing of such clothing is protected by the first amendment of the constitution of the United States of America. Your cease and desist letter is pure intimidation with no legal basis whatsoever.
The shirts are clearly a parody. No court in the land would hold that Wild Wilderness was "passing off" these protest shirts as Disney products. We created these shirts to be worn by persons wishing to protest the "Disneyfication of Nature" (a term commonly and broadly used). We were not competing with Disney in any shared market and any economic impact our shirt might have upon Disney would be entirely from the criticism itself.
Surely you are aware that the copyright statute lists as the first factor in determining if use is "fair use," "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes." Clearly, our use of this image was not of a commercial nature and was entirely in support of nonprofit educational purposes. Our use of the image easily meets all the other factors for "fair use" and therefore does not violate the law in any way.
The artwork which you allege is Disney's property was created by an independent artist and offered to Wild Wilderness for our use as a tool with which to protest the Recreation Fee Demonstration Program, a program which your company (and specifically your Senior Environmental Vice President, Mr. Kym Murphy) played a major role in bringing about. The artwork does not belong to Disney and, in fact, is copyrighted by that artist. The artwork was used by Wild Wilderness with permission of the copyright holder. The copyright holder received no compensation for the use of his design. The creation of this original and whatever message it may convey is protected by the American constitution.
Your letter stated: "We demand that you send the above information to us within fourteen (14) day of the date of this letter." And so I shall respond to your intimidation as I hope others shall respond.
Before you receive this written response I shall have placed both your letter and my response to it onto the Internet and will have circulated it widely. With luck, your intimidation efforts will be well rewarded and perhaps you will already have received inquiries from a curious press.
The strong-arm techniques of the Walt Disney Company deserve a response. Any retaliation for the public nature of my response will be met with escalating resistance. If you do not approve of the production of 127 T-shirts made available to activists engaged in political defiance of a commercially motivated and morally corrupt attempt to affect a Corporate Takeover of Nature, I can assure you that you will like even less, the negative publicity stemming from your attempted intimidation.
[] You demand that Wild Wilderness "immediately cease the manufacturing, distribution and sale of the Product" which you claim, "... included reproduction of Disney characters and trademarks;"
To this I respond, all 127 T-shirts have already been distributed. No further production is contemplated. If, owing to the publicity generated by your actions, there is a strong demand for additional T-shirts, we may chose to meet that demand. I assure you, Wild Wilderness will make no attempt to derive financial benefit from the distribution of those shirts but will provide them as a public service to persons wishing to express their Constitutionally protected rights.
[] You demand that Wild Wilderness: "immediately destroy all unauthorized Product ... or trademarks, as well as all advertising and promotional material relating thereto;"
To this I respond, I have no such materials in my possession other than the shirt I wore when demonstrating, the shirt my wife wore when demonstrating and the shirt my 9-year-old son wore when demonstrating. My son, incidentally, was filmed carrying a "Disney Keep Out" placard. In addition to these shirts, I am still in possession of several hundred pieces of protest literature bearing the same image found on the protest T-shirts. I intend to distribute those freely and make additional copies as required.
[] You demand that Wild Wilderness "provide sales and profit information," etc.
To this I respond, Wild Wilderness produced 127 T-shirts at a printing cost of $776.60. These shirts were made for the express purpose of having these shirts worn by persons protesting the Recreation Fee Demonstration Program. We provided all but ten of those shirts to activists either at no cost or for less than the direct production and shipping costs. Ten shirts were sold at $12 each (priority postage included). All persons receiving shirts received in the same package protest literature as well as a supply of "no-trail-fee" windshield stickers. The cost to Wild Wilderness for sending a shirt, literature and windshield stickers was in excess of $12 per order.
All 127 shirts were distributed prior to the August 14th National Day of Action for which they were created. Not taking into consideration the costs of printing the protest literature and windshield stickers that were supplied along with the shirts, and allowing nothing for labor or incidental expenses, the cost to print and mail 127 shirts was $901.08. For these shirts and other materials, Wild Wilderness received $780.95. Our loss on the 127 shirts was $120.13 not including the other expenses associated with providing complete packages of protest materials.
I give you my assurance that at no time did we have any intention of deriving profit from T-shirt sales. On the contrary, we engaged in this activity without so much as even trying to break even. You see, unlike the Disney Company, Wild Wilderness is not in this for the money!
[] You demand that Wild Wilderness "provide to us written assurance that you will immediately discontinue and will not resume in the future, the manufacture or use of any unauthorized product bearing Disney copyrighted artwork."
To this I respond, I am not in possession of any such materials other than the shirts worn by members of my immediate family and limited quantities of protest literature.
It is the Wild Wilderness position that The Disney Corporation is working entirely too diligently to gain a greater degree of management control of America's public lands. Having lost in your attempt to develop Mineral King and having lost more recently in Virginia, I would have thought that a company so dependent upon its "good" name would be more careful in the fights it picks and the friends with which it associates.
Disney's close ties with the anti-environmental American Recreation Coalition (as a sustaining member of that company and as a member of its Board of Directors) plus Disney's direct involvement in creating and implementing the highly unpopular Recreation Fee Demonstration Program are issues having major political importance. The image which appeared on 127 T-shirts and upon several thousand pieces of protest literature was political commentary and political satire.
Whereas access to our public lands are no longer free, thanks to ARC and the Walt Disney Company, for a little while longer I expect the protection of Free Speech will continue to be a right enjoyed by all Americans.
If you are in a particularly litigious mood, might I suggest you go after someone your own size! The Los Angeles Times, in their August 15, 1999 coverage of forest fee protests in Southern California published a picture depicting an attractive lady holding a sign which read: "This Land Is Our Land Not Disneyland." Similar images appeared in other newspapers throughout the West.
Regardless of any effort to intimidate Wild Wilderness or to harass me personally, I shall continue to draw attention to the role the Disney Corporation has played, and continues to play in promoting the commercialization and privatization of America's public lands. Perhaps it is your organization that should cease and desist in your unethical activities and in its unjustified harassment of private persons who are trying to keep public lands Wild and Free... especially Free from Disney!
Sincerely,
Scott Silver
Executive Director