Selene H. Costello Esq.
Dow Jones & Company
200 Liberty Street,
9″‘ Floor New York,
NY 10281 (
212)416-2197 Fax (212) 416-2524
December 15,2005 Via First Class Mail
Mr. Alfred Donovan
847A Second Avenue
Dear Mr. Donovan:
Re: Unauthorized Use of The Wall Street Journal head cuts on www.royaldutchshellplc.com
I write on behalf of Dow Jones & Company, publisher of The Wall Street Journal newspaper and other publications.
It has recently come to our attention that you have copied and displayed head cut illustrations from The Wall Street Journal newspaper on your website located at www.royaldutchshellplc.com.
As of the present date, head cut illustrations of Mr. Jeroen van der Veer, Mr. Jorma Ollila and yourself appear on the website without our permission.
As you may know, Dow Jones owns all copyrights, trademarks, and other proprietary rights in The Wall Street Journal. Copyright law prohibits, among other things, reproduction, public display and distribution of copyrighted materials without the permission of the copyright owner — in this case, Dow Jones.
Under no circumstances are you permitted to use images or other content from The Wall Street Journal without Dow Jones’ permission. The attribution provided on the website that states “Sketch courtesy of the Wall Street Journal” is insufficient to avoid these copyright concerns.
This letter puts you on notice that we regard the above-referenced content to be an infringement of our intellectual property rights. Accordingly, we ask that you immediately and permanently remove the unauthorized content from your website, and refrain from unauthorized use of our intellectual property in the future. Please provide written assurances within seven (7) days that you will comply with these requests.
Dow Jones expressly reserves all of its rights and remedies in connection with this matter.
Very truly yours,
Response Letter from Alfred Donovan to Selene Costello: 4 January 2006
Dear Ms Costello
I acknowledge receipt of your letter dated December 15, 2005. My son John has spoken to you today on my behalf when you confirmed that no further letters have been mailed to me on this matter at this point in time.
As you may be aware, I supplied a likeness to The Wall Street Journal in the form of a photograph of me from which the sketch of me was drawn. It was my photograph and my likeness in relation to an article about me. Without my photograph, no sketch could have been drawn. Under the circumstances it seems rather inappropriate on the part of Dow Jones to raise the matter, particularly in such a threatening way against “an 88-year-old British army veteran” – the description of me given in the article when it suited The Wall Street Journal to portray me in a sympathetic light.
The attribution you have quoted was displayed in the knowledge that The Wall Street Journal staff member who authored the article, Mr Chip Cummins, has been a visitor to the website before and after the sketch was featured and raised no complaint. Chip was extremely keen on obtaining an exclusive on the domain name story and we were pleased to co-operate when he requested a photograph. John has spoken and corresponded with Chip many times.
It therefore seemed proper to display an acknowledgement given the friendly trusting co-operative relationship which was established. In view of your letter, the acknowledgement now reads: The Wall Street Journal sketch is reproduced in accordance with our “Fair Use Notice”. The notice is prominently displayed with all three head cut illustrations mentioned in your letter.
With regard to the “Fair Use Notice”, I would draw your attention to the following legal notice also displayed on the gateway webpage: “This is a non-commercial site: no subscription charges and no advertising.” An illustrious three person panel of the World Intellectual Property Organisation reached a unanimous verdict in my favour in respect of the domain name royaldutchshellplc.com and the other Shell related domain names which were the subject of proceedings brought by Royal Dutch Shell (and the subject of The Wall Street Journal article).
The panel consisted of (1) Mr Michael Cover, a British solicitor who specialises in Intellectual Property law; passing off, copyright etc; (2) Ms Diane Cabell, an eminent American lawyer, currently Corporate Counsel of Creative Commons and previously a senior lawyer at The Berkman Center for Internet & Society at Havard Law School. Daniel J Gervais is a Canadian Professor of Technology Law. Professor Gervais held senior legal positions at the WIPO in Geneva for several years and is the author of a host of major publications relating to the Internet and associated law. He acted as the presiding panellist in the WIPO Shell case. Having read my submission, the panel accepted “there is no evidence that Respondent’s actions are for “commercial gain”.
In other words, the expert panel decision in August 2005 accepted the fact that my website is operated entirely on a non-profit making. Hence the “Fair Use Notice” displayed since the launch of the site has been validated by the WIPO panels decision.
The background circumstances in respect of the three head cuts illustrations are different. I have already dealt with the circumstances in my case – the sketch was based on my source material – my photograph and likeness – in an article about me. The circumstances are obviously different in respect of Mr Jeroen van der Veer and Mr Jorma Ollila, but all three are in any event covered by the Fair Use Notice.
If you so wish, I will happily publish any reasonable acknowledgement or confirmation of permission, but this offer should not be taken as acceptance that any infringement has taken place. It is merely an attempt to settle the matter amicably.
My son asked whether Shell had brought this matter to the attention of The Wall Street Journal or Dow Jones & Company and that you replied that this was not pertinent. I can understand that this would not be a matter of interest to you but if there is further correspondence, I would be grateful for confirmation on this point.
Update 28 February 2006. No action had been taken on this matter by Dow Jones despite the threat of a further letter which supposedly was to be sent to us. The relevant drawings can be found on the following webpage: www.RoyalDutchShellGroup.com