Bagism: Library

Cease & Desist


For two years, my John Lennon Web Page entertained and informed countless visitors from Australia to Zaire and all points in between. I like to think that, in my own little way, I was helping to keep John Lennon's spirit alive. Sadly, lawyers thought differently...

Imagine no possessions -- John Lennon

My John Lennon site was launched on Dec 8, 1994 -- which was also the 14-year anniversary of John Lennon's death. At first, there were perhaps 20 pictures on the whole site and that was it. Slowly, I began adding many more photos, sound files, QuickTime movies, album covers, lyrics, artwork, and a library of chronologies, articles, letters, etc. There were also lots of interactive features such as a slide show, message board, chat room, and an album reviews section. But the site wasn't just a collection of files...they each helped educate fans, young and old, as well as entertain them. Every sound file, every picture helped people better understand who John Lennon was.

My Lennon site became very popular and most considered it to be the de facto site on John Lennon. However, in spite of all the praise my site received, there was at least one group that didn't like it...

On Nov 26, 1996, I received a phone call from someone in the Campus Computing department at the University of Missouri. It went more or less like this:

"Sam, you've been no-logged."

I didn't know what "no-log" meant, but I had a feeling it wasn't a good thing. "What does that mean?," I asked while hoping I was wrong about it being a bad thing.

"It means your account has been inactivated. It was turned off because of potential copyright infringement on your John Lennon page."

"Who says?," I shot back.

"The president of the University. He received a letter that said you were using copyrighted material on your page without permission and he told us to shut it down immediately. I'm sorry, I had no choice."

"Who exactly sent the letter?," I asked.

"It says lawyers representing the estate of John Lennon."

I was in shock. I was in denial. I tried to access my web site and, sure enough, it wasn't there. We talked a bit longer and I tried to get him to send me a copy of the letter, but he wanted to ask his boss first to make sure it was okay. It didn't matter though, because downstairs in my mailbox awaited a certified letter that read:

Nov 22, 1996

Re: The Estate of John Lennon

Dear Mr. Choukri:

We are the attorneys for the Estate of John Lennon.

It has come to our attention that you have a home page on the Internet in which you reproduce and display John Lennon's artwork.

As you are well aware, our client has not granted you the right to exploit the copyrighted artwork or our client's trademarks. Thus, your use is unlawful and infringes on our client's rights, including but not limited to, statutory and common law protections relating to trademark infringement, unfair competition and copyright infringement.

This letter shall serve as notice to you that unless you immediately cease and desist from all uses of on the Internet on our client's artwork and trademark, we shall seek injunctive relief against you. Please be further advised that your continued use of our client's mark constitutes willful infringement for which we shall seek an accounting, damages and all attorneys fees and cost. Demand is hereby made for an immediate response.

This letter is written without prejudice to our client's rights and remedies all of which are hereby expressly reserved.

Very truly yours,

D.M.W.

Well, I must have read and re-read that letter a hundred times, but no matter how hard I tried, I just couldn't find anything good in it. What really upset me was the line "...our client has not granted you the right to exploit the copyrighted artwork or our client's trademarks." Anyone who had ever visited my former Lennon site could tell you it was in no way exploitive. I didn't make any money off my site and I didn't have anything on there demeaning to Lennon's character. I can certainly understand their desire to prevent people from unlawfully profiting from their client's property. But that's not what my site was about. If anything, my site only helped increase the wealth of the Lennon estate (not that they would notice) because they had, in essence, a free online catalog.

My primary objective after my site was shut down was to explain the circumstances to as many previous visitors to my Lennon site as I could. I knew that hundreds of people were trying to access my site throughout the day and all they were seeing was an error message saying "File not found." That night, I sent an email message to over 2000 people who had written me regarding my Lennon site during the previous two years. I also created a temporary web page on a different server so that I could direct people there for the latest updates.

On Nov 27, 1996, the morning after I received the cease and desist letter, I made an appointment to meet with a lawyer on Monday, Dec 2, 1996. In the meantime, I had to think of Thanksgiving, which was on the following day. I was determined not to let my legal problems ruin my appetite. The turkey turned out great, by the way.

On Nov 29, 1996, I added a section to the temporary web site called Dear Yoko where supporters of my Lennon site could post messages asking Yoko Ono to reconsider the decision by her lawyers to shut down the site. I believed (and still believe) that Yoko Ono had never seen my Lennon site, but rather was only made aware of its existence by her lawyers. My plan was to gather a sizable number of messages, print them out, and send them to Yoko Ono. The response was phenomenal -- I kept having to create more and more pages to hold all the entries.

All we are saying is give peace a chance. -- John Lennon

So, Dec 2, 1996 finally came around and I was able to go see my lawyer. She helped me figure out what I should and shouldn't say in my response to the cease and desist letter, but she couldn't really help me with the nuances of copyright laws. I was entertaining the idea that my use of the artwork constituted "fair use" but I didn't really feel like testing that idea in a court of law. Anyway, after meeting with my lawyer, I wrote my response and sent it the same day via certified mail and fax. I'll wait while you go and read it...

The letter was sent and so began the ritual process of eagerly checking the mail everyday for a response. But I did not sit around waiting for them. On Dec 4, 1996, I opened up my new John Lennon site called "Bagism" for a sneak preview. It even had it's own domain name! Even before receiving the cease and desist letter, I had been planning to move my Lennon site off the University server so that I could get a domain name for it (they just helped speed things up a bit). I was really hopeful that once the lawyers realized that my site wasn't a threat to the Lennon estate, they would permit me to bring it back at the new location.

While waiting for the lawyers to respond to my letter, there were other matters that needed to be dealt with. Dec 8, 1996, the 16th anniversary of John's death (and what would have been the 2-year anniversary of my Lennon site) was fast approaching. In memory of this somber occasion, I set up a John Lennon Remembered page where people could share their thoughts and memories of a man who helped bring so many people together. It is a testament to the drawing power of John Lennon that, in spite of the fact that my newly created Bagism site was still just a shell of the former site, hundreds of people added their thoughts.

On Dec 10, 1996, I received an encouraging letter from the lawyers in response to the letter I sent them. Here's most of what they wrote:

"While we appreciate that your intent may be to honor John Lennon, we cannot permit unauthorized uses of the John Lennon trademarks and copyrights.

"If you wish to make a proposal for the use of our client's marks, we will be happy to forward any such request to our client."

Well, that certainly was encouraging! It sounded to me like they were at least willing to consider a proposal for me to obtain permission to use some of the files from my former site.

For the next several days, I worked on a proposal to send to the lawyers. My goal was to show them that allowing me to continue with my Lennon site as it was would be beneficial to everyone involved -- myself, the Lennon estate, and John Lennon's fans. On Dec 17, 1996 I sent a packet of materials to the lawyers which contained my proposal and the first three pages of letters submitted via the Dear Yoko page (which were 54 pages long printed out!). I also sent a duplicate packet of the materials to Yoko Ono at her residence in the Dakota Building in New York City just to double the chance that she would actually see it.

Once the proposal was sent, all I could do was wait for a reply so I turned my attention to working on Bagism. Even without the endorsement of the Lennon estate, there were lots of things I could add. On Dec, 23, 1996, less than a month after my former Lennon site was shut down, Bagism was officially launched!

Three weeks passed without any response from the lawyers to the proposal I sent them. On Jan 13, 1997, I decided to call the main lawyer handling the case. My hope was that talking to a real person would help them realize that I never intended any harm to the Lennon estate (it's too easy to reject impersonal letters, but harder to reject a person). A receptionist told me she was unavailable, but I left a message asking her to return my call.

Another week and a half passed without a response and I was starting to get very impatient. It had been a month since I sent them the proposal and figured they had plenty of time. In desperation, I sent them a fax on Jan 24, 1997 giving them one last chance before I abandoned all hope of them ever responding.

Dear Ms. W:

On December 17, 1996, I sent a packet of materials to your office including a proposal to use some of John Lennon's artwork, trademarks, etc., on my new web site dedicated to John Lennon. I submitted the proposal only after you stated you would forward it to your client. In addition to the proposal, the packet contained many testimonials from visitors to my former and current John Lennon web sites demonstrating their popularity and necessity.

As of today, I still have not received a response to that proposal. In addition, I never received a response to a telephone message I left at your office on January 13. I would still very much like to work with the Lennon estate in building the most fantastic web site possible. But I will do so with or without your help.

If you do not respond by Wednesday, January 29, I will assume that you have no intention of ever responding and therefore I can move forward with my alternative plans.

Sincerely,

Sam Choukri

I guess that letter got their attention because the very next day, I received the following fax (and another copy via certified mail a few days later).

Dear Mr. Choukri:

We are in receipt of your letter dated January 24, 1997. To clarify the record, my assistant has left two messages from our office which have gone unreturned. Your December 17, 1996 letter to our office was certainly not a proposal. This letter shall serve as notice that you have no authority to utilize any copyrighted material owned by the Estate. Please be further advised that you have no authority to utilize any trademarks owned by the Estate.

If you infringe any of our client's rights, your letter of January 24, 1997 shall serve as an admission that such infringement is willful. Be assured that no licensee of the Estate has ever become one based on the type of threat you make in your correspondence to do a web site with or without our help or license.

This letter shall serve as notice that we shall take any and all steps necessary to protect our client's rights.

They completely misunderstood what I meant when I stated that I would create a web site with or without their help. All I meant was that I would still create a web site devoted to John Lennon even if I couldn't use his images, sounds, artwork, etc. In fact, I had already done so...it's called Bagism.

What was even more disturbing was that the proposal I sent them was disregarded completely. I couldn't help but wonder if the proposal was rejected because I never proposed I give them money. At the very least, they could have sent me a letter or a fax stating that my proposal was rejected instead of making me wait over a month without any word.

Everybody's hustling for a buck and a dime. I'll scratch your back, and you knife mine. -- John Lennon

I decided I should send them another letter explaining my intentions so that the record would be very clear (in case this sordid affair ever wound up in court). On Jan 26, 1997, I sent them the following letter:

Dear Ms. W:

I have received your letter dated January 24, 1997. I'm afraid you've greatly misinterpreted my intention to create a web site with or without the help of the Lennon estate. Yes, I do plan to create a web site dedicated to John Lennon regardless of whether or not I receive a license. However, I do not intend, nor have I ever intended, to use your client's trademarks or copyrights without a license. Creating a web site dedicated to John Lennon is possible without using such items and I am prepared to do so if I am unable to obtain a license.

I apologize for missing the two phone messages from your office since this misunderstanding could have been avoided had we spoken on the phone. However, I expected you to reply to my proposal of December 17, 1996 in writing, like all of our previous correspondence. After waiting over a month, I naturally assumed you may never reply.

Your letter of January 24, 1997 makes it clear that my proposal has been rejected, yet you do not state the reasons. I suspect it was rejected because I did not offer any payment in exchange for a license. Perhaps, I am being too optimistic, but I am hoping to receive a license without charge. As I tried to convince you in my proposal, allowing me to continue the work I began with my former web site would be beneficial not only to myself and other fans of John Lennon, but to the Lennon Estate as well. If I submit another proposal, is there a reasonable chance I will be able to receive a license without charge? If yes, please describe your guidelines for a proposal so I can make sure any future proposal I submit will receive more consideration than the first one.

Please respond via fax as soon as possible. Thank you for your consideration.

Sincerely,

Sam Choukri

On Jan 28, 1997, I received the following fax from the lawyers.

Dear Mr. Choukri:

Thank you for your prompt response to our facsimile of January 24, 1997. We appreciate your assurances.

The Estate is in the process of developing various projects, including its own web site. Licensing fees are not the issue for this project since the Estate wishes to control its copyrights and trademarks on this type of project itself.

I hope this answers your questions but please do not hesitate to communicate with us if you have any additional questions.

Yes, that did answer many questions! For the first time, they admit what I believe was the main reason why my former Lennon site was shut down -- the Lennon estate wants to open up an official John Lennon site. Could it be that they didn't want to have to compete with an established and highly popular site? Actually, I was glad to learn of their plans to open an official John Lennon site, but somehow I doubt it will ever see the light of day. Does anyone remember the "Imagine" CD-ROM that was supposed to be released in October 1994? Probably not.

My initial reaction to this revelation was that I should try to convince the Lennon estate to allow me to work on the official site. I spent a few weeks planning how to go about proposing such an arrangement to them. After my first proposal to them didn't even garner a response, I wanted to make sure that this time they would be impressed with any new proposal I sent them.

I received help and advice from a few friends and I began work on a new proposal. However, my time was very limited for a number of reasons, including the time I was currently spending on Bagism. The proposal was harder to write than I thought it would be and I was quickly losing interest in doing it. I started to realize that maybe I didn't want to work with the Lennon estate after all. Doing so would surely mean that I would lose control over the content of the site -- something I had enjoyed tremendously during the previous two years. But more significantly, I began to realize that there were so many things I wanted to do with Bagism that did not require the permission of the Lennon estate. I found myself putting off those plans in order to chase some crazy notion of working with the Lennon estate that I wasn't even sure I wanted anyway!

Life is what happens to you while you're busy making other plans. -- John Lennon

Sometime in Mar 1997, I finally decided that I would no longer pursue the re-opening my former site. Wrangling with lawyers is not something I enjoy and I felt my time could be better spent on other endeavors. As far as I'm concerned, the matter concerning my former Lennon site is now closed -- I currently have no plans for further communication with the Lennon estate. As such, unless something completely unexpected occurs, there will be no more updates to this section. But this does not mean I've given up! There is still plenty of work to do with Bagism and so I plan to devote as much time as possible to it.

I'd like to thank all the regular visitors of my former Lennon site who migrated over to Bagism. I was truly amazed that so many people continued to visit that first month or so when there was really nothing to see or do at Bagism. I'm proud for what Bagism has become and I like the direction it's headed. It's been a challenge to create a compelling site without all the "eye candy" that I used freely on the former site. To me, that shows that John Lennon is not a "thing" that a lawyer can give you permission to use, but rather John Lennon was a person, a real person, who left an indelible imprint on a generation of people (and now, a second generation) that no lawyer can ever take away from us. The lawyers only represent John Lennon's money...his fans represent the man himself.

Sam Choukri
Mar 30, 1997

 

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