Oprah Urges “Oprah for President” Website to Cease and Desist

Robyn R. Smith

Patrick Crowe had his “Aha!” moment[1] in late August of 2006.  That is when the Oprah Winfrey fan learned that the talk-show host might sue him for infringing Winfrey’s registered trademarks and copyrights and for violating her right of publicity.
Crowe and a few of his friends operate two websites, a toll-free telephone hotline, and a home-based campaign devoted to gathering support for Winfrey as a candidate for President of the United States in 2008.  The websites, dreamagic.com and oprah08.net, display pictures of the talk-show host and employ two of her registered trademarks, “Oprah” and “The Oprah Winfrey Show.”  The hotline number, 1-866-OPRAH-08, incorporates Winfrey’s marks.  Through the websites and the hotline, Crowe offers information on his campaign and sells bumper stickers, clothing, and copies of a book he authored to fund the campaign.  Crowe claims the entire effort is non-profit, with all proceeds funding campaign efforts.
The Entertainment & Intellectual Property Group, LLC,[2] attorneys for Winfrey and Harpo, Inc., issued a cease-and-desist letter to Cole on August 22, 2006.[3] Winfrey is claiming that Crowe’s use of Winfrey’s image infringes registered copyrights and Winfrey’s right of publicity.  Winfrey is also claiming that Crowe is infringing her registered trademarks.  The letter demands that Crowe immediately cease his use of Winfrey’s images and marks and that he assign the oprah08.net domain name to Harpo, Inc.
The dreamagic.com site identifies Crowe as a man in his late sixties who has personally spent $60,000 promoting Winfrey as a presidential candidate.  Crowe’s is not the only Internet site to suggest that Oprah make a bid for the nation’s highest office.  The official website of filmmaker Michael Moore calls for viewers to sign an online petition encouraging the talk show host to run for the office.  The petition publicly advises Winfrey, “At the very least, you can shake things up, but more likely, you can destroy the field and blow through the elections to become our first black President, our first woman President and our first President in recent memory who represents the interests of the American People.”[4] The site displays a photograph of Winfrey and is emblazoned with the slogan “Draft Oprah for President.”  Unlike Crowe’s website, Moore’s does not claim to represent a non-profit organization.
Other fans have used Winfrey’s image and name on a site devoted to procuring the Nobel Peace Prize for Winfrey.  The site, oprah4peaceprize.org, prominently displays two pictures of Winfrey and employs her moniker in its domain name.[5] Neither Winfrey nor Harpo executives have publicly expressed an intention of preventing this group or Moore from using Harpo’s marks and copyrights or Winfrey’s image.
Although Winfrey’s inconsistent approach to defending her intellectual property may be puzzling, copyright and publicity rights can be selectively enforced at the owner’s choosing.  Winfrey may pursue few, all, or none of her copyright and publicity rights against other infringers without affecting the weight of her legal rights against Crowe.[6]
Winfrey’s trademark rights may prove more difficult to protect.  If Winfrey’s marks are frequently used on others’ web pages, Internet users may not regard the marks as indications of origin.  If Crowe’s use of the marks does not confuse consumers into believing that Winfrey sponsors or endorses Crowe’s site, Winfrey and Harpo will have suffered no harm as a result of Crowe’s actions.
The last time Winfrey was in the news for a copyright issue, she was on the other side of the courtroom.  In 2000, Winfrey was a civil defendant in a federal suit brought by two freelance photographers.  The photographers claimed she had infringed their copyrights in several publicity photographs by reproducing them without permission in her book Making the Connection.   As a defense, Winfrey had claimed that the photographs were works-for-hire, which would have given her company copyright ownership.  She also claimed that she was a co-author of the photographs because she controlled the underlying subject matter of the works.  A Chicago district judge determined that the photographers were freelance workers, so their pieces were not works-for-hire.  Further, the judge ruled that Winfrey’s contribution to the photographs was not independently copyrightable, so she was not a co-author with the right to reproduce the images.  Winfrey settled with the plaintiffs in that suit for an undisclosed sum.
Now 2006 finds Winfrey on the plaintiff’s side of the courtroom in the intellectual property dispute against one of her biggest fans.  While it is not likely that Crowe will be “jumping the couch” any time soon, the resolution of this matter is still uncertain.  The Brand will continue to follow this story, providing updates as they develop.

[1] The author of this article does not watch The Oprah Winfrey Show, but she is aware that the show’s host, guests, and viewers use this palindromic term to describe their personal epiphanies.  The author would have selected a more elaborate palindromic phrase, such as “Do geese see God?” or “Lisa Bonet ate no basil.”
[2] The name of this firm is a textbook example of a “merely descriptive” trademark.  The author of this article, while curious, has not explored the existence of secondary meaning for this phrase.  Certainly, one wonders.
[3] Available online at http://www.thesmokinggun.com/archive/0919061oprah1.html.  Site last verified September 22, 2006.
[4] Available online at http://www.michaelmoore.com/books-films/dudewheresmycountry/draftoprah/.  Site last verified September 22, 2006.
[5] Site last verified September 22, 2006.
[6] The use of the term “weight” is not intended as a physical reference to any of the subjects of this article – especially not the more litigious parties.  On an unrelated subject, that Oprah is looking amazing these days, isn’t she?  I mean, wow.