Goliath Vs. David?
First, I take no pleasure in this. But as a Marine (inactive but never former) one must always be prepared to fight back with greater force than the attack. But let me state that I have great respect and admiration for Oprah. What follows is likely an example of an over-zealous, “Goliath Vs David,” heavy-handed action by subordinates determined to, and rightly so, protect the Oprah brand. Still, there is absolutely no excuse for false copyright infringement assertions that can cause one’s reputation to suffer, and exact very real losses.
The message in my in-box was a stunner.
Here’s background information I have never spoken of or written about in all these years.
Following, I will state the immediate issue.
“…one particular guest wrongly aimed venomous comments at Oprah…”
In 1997, I received a phone call from my publicist, Nancy Eddy, (an amazing publicist) in Novato, California. “I just spoke with Oprah’s Executive Producer, Diane Hudson and she want’s to know if you will accept their invitation to be guest on Oprah. The show’s topic is “Who’s Black Enough?”
I thought about it for 1.5 nano-seconds and said “yes”, with the same forced and intentional calm and reserve in which Nancy had informed me of the invitation. Invitation accepted.
Travel instructions and tickets on American Airlines for the very next week were sent; night arrival at O’Hare; pickup by a chauffeur; airport departure delayed by V.P. Al Gore’s late night motorcade, and a lovely stay at the Omni Hotel — the works. The next morning saw a limo ride to Harpo Studios.
Five Major Publishers Auction…$1,000,000+ advance anticipated for my first novel…
It is no stretch to say, that being invited to appear on Oprah is/was an author’s dream. Following the surprising national controversy my novel had caused, and in light of the fact a former agent, Brenda Feigen, had blown a ‘Book Auction’ for ‘Catch’ and an anticipated $1,000,000+ advance, involving five of New York’s largest publishers, this was sweeeet! For a first novel, or any subsequent novel, this is virtually unheard of, then or now.
To digress a bit, during a visit to Ms. Feigen’s Brentwood home, the Sunday before the auction, even as she discussed plans for her 15% domestic, 20% Foreign fee, I made clear, I would be happy to take a smaller advance, if there was a firm commitment to a substantial promotion budget.
I Never Played Catch With My Father is about a Texas-born, baby-boomer billionaire and Wall Street icon, whose love of baseball shapes his adult life. His views on matters of race and poverty differ from those of most of the so-called conservatives in his small, North-Central Texas town —even members of his church. He struggles with the fact their professions of being Christian run counter to their failure to practice what they preach and teach.
Billionaire James Phalen’s advice is sought by Presidents. He speaks and “The Street” listens. However, he learns that wealth, fame, and power are not enough. He cannot purchase, at any price, memories of a heart and soul connection with his now terminally-ill father —memories that never were. Residing in New York, he has one last chance to “catch the last train home.”
More details are available on my website, GeneCartwright.com. News of the failed auction, delivered by my agent (immediately former) was offered without explanation, despite my questions. The agent, in a further insult, actually billed me for the cost of mailing the manuscript. My “faith” was tested as seldom before, and I wisely elected not to make a drive to Brentwood.
…”All I can say, ethically is, the problem was your agent,” he said.
The next day, I called and spoke to Simon & Schuster’s then Sr.VP, Bob MeCoy, who briefly informed me that the problem for S&S, Alfred Knopf, two Random House Divisions, and St. Martin’s Press was “your agent.”
Vowing to go on, I later published the novel and enjoyed a three-year, coast-to-coast tour in Barnes & Noble stores, other major booksellers, and appearances on numerous talk shows, including Oprah, PBS, and many, many more. I have penned nine more published books, and a half dozen spec feature screenplays, and several shorts.
Back to Harpo and The Oprah Show.
And then comes an invite from Oprah. The trip was made, the stay at the Omni Hotel, the ride to Harpo Studios, and the first meeting with Oprah, along with other guests, including Dr. Michael Eric Dyson, Chuck D, ‘Sistah Soulja,’ and Bell Hooks, in the ‘Green Room.’
To say that the show, titled: “Who’s Black Enough?” was heated, and even included audience members who wrongly and regrettably attacked blacks considered not to be sufficiently “black,” including Oprah, would be an understatement. Nationally, I had been attacked by some African American bookbuyers who took issue with the fact my novel’s main character was a blue-eyed, blond-haired, Anglo-Saxon Protestant, and not black. Read a lengthy article published in The Miami Herald by Leonard Pitts, and an article in Ebony Magazine (See Google), where I was featured as “Author of The Month.”
I and my guest seat-mate, Bell Hooks (nom de plume for noted author, teacher, feminist, Gloria Watkins) while taking strong issue with one particular guest who aimed venom-coated comments at Oprah, felt the woman should not be shouted down but permitted to state her case. There would be plenty of facts with which to shred her comments. Others wanted her silenced.
When my novel was discussed and the book cover filled the screen behind the stage, I made the following comment: “I don’t have to prove my pedigree. When was the meeting held, where it was decided, that I and other Blacks must think and act the same? I didn’t get the memo. Why must I, as a Black author be limited to only having Black main characters? The same is not true of white authors.” Oprah applauded the comment.
Regarding this Oprah episode, it was scheduled; the listing appeared in TV Guide, and on the web, and the waiting began. Naturally, I and everyone I knew were awaiting the airing. VCRs (dated technology now, right?) were poised and ready.
After The Taping:
After the show’s taping, Oprah entered the Green Room” and met briefly with all her guests. I introduced myself: “I’m Gene Cartwright,” Oprah responded, “Oh, so you’re Gene Cartwright.” Clearly the news of the controversy surrounding my book was well known to Oprah. I asked her if she could accept a gift. She said “Yes.” I then presented her with a T-shirt emblazoned with the cover of I Never Played Catch WIth My Father. I told her it was a medium. She remarked: “God Bless you,” and we all shared a laugh.
Then came the call.
Executive Producer Diane Hudson (at the time) called to say the episode had been pulled, and no new air date had been established. I later concluded that there would be no new air date. The taped show, which ran long, was a “scorcher,” and not likely well-received by The King Brothers Syndicate, which then owned the majority of The Oprah Show.
While the show never aired in full context, and never on Oprah, Oprah nevertheless appeared weeks later on then Bryant Gumbel’s CBS Saturday Magazine show, “Public Eye with Bryant Gumbel” Episode 9, during the 1997–1998 television season. He interviewed Oprah, excerpts of the canceled show were aired, and Oprah discussed the show. I doubt few will remember this without going to the archives.
Nevertheless, this whole Oprah Show experience will always be a highlight of my life.
THE ISSUE AND THE CLAIM BY HARPO
“According to the notice, certain material on Etsy “is a product never offered by Trademark owner.” So states the Harpo Claim.
Fact: Oprah nor Harpo owns the rights to my product. Period! Full Stop!
Posting:Play With Your Kids Art Poster – Ultra-Quality from cover of novel by former Oprah guest, and Pulitzer-Nominated author, Gene Cartwright
Today, I received a stunning email from Etsy’s Legal Department, informing me that my product, for which I paid to have posted and was accepted, had been removed pursuant to a claim of copyright infringement from Oprah’s Harpo Brand Protection division. —What? The image on my book-cover is my complete creation (created in 1992) and bears no reference to anyone except me.
Play With Your Kids Art Poster – Ultra-Quality from cover of novel by former Oprah guest, and Pulitzer-Nominated author, Gene Cartwright.
In light of the fact, the infringement claim by Harpo’s Kristen Becht, apparently refers to the fact that I said I was “a former Oprah guest,” I am at a loss. This is a fact. So, is mentioning Oprah’s name an infringement? Certainly not. If it were then millions of individuals, media, FaceBookers, Tweeters, and others are in violation. The claim is bogus and shameful.
THE EMAIL THREAD.
I have included the actual email thread, and my response, which follows. The only redaction is the name of my attorney, whom I copied. My only request, as stated in my response, Is that Harpo withdraw their false claim in writing, to Etsy, and to me personally. Failing doing that, I will have to seek further redress.
From: Etsy Legal <email@example.com>
Sent: Wednesday, April 2, 2014 12:22 PM
Subject: Listing Deactivation Notice for Infringement
PLEASE READ THIS ENTIRE IMPORTANT EMAIL FROM ETSY.
I wish to make it clear, I do not blame ETSY. When Oprah-Harpo contacts you, I suppose even God listens.
Etsy deactivated some of your shop’s item listings in accordance
with our Copyright and Intellectual Property Policy.
We kindly request that you read this email carefully, then refer
to this Help article:
Why Were My Items Deactivated?
Etsy received a notice from Kristen Becht (firstname.lastname@example.org) on behalf of Harpo, Inc., who owns trademark rights to the marks OPRAH, OPRAH’S BOOK CLUB, OPRAH’S FAVORITE THINGS, OPRAH’S SIGNATURE, OPRAH WINFREY NETWORK. According to the notice, certain material on Etsy “is a product never offered by Trademark owner.”
Do not re-activate or re-list these item listings until you resolve
the issue. If you have questions, you may want to contact the party
who submitted the notice (their contact information is provided above),
talk to an attorney, and/or refer to this Help article:
http://www.etsy.com/help/article/3896. Repeat notices, like this one,
may result in account termination.
This is a confidential matter, and Etsy requests that you not discuss
this issue in the Etsy Forums or otherwise violate the confidential
nature of this email. This communication is not legal advice or legal
representation. For legal help, please consult an attorney.
The following item listings have been deactivated:
181901423 – Play With Your Kids Art Poster – Ultra-Quality from cover of novel by former Oprah guest, and Pulitzer-Nominated author, Gene Cartwright
Etsy’s Copyright and Intellectual Property Policy:
For copyright claims, if you believe that your listing(s) were
unjustly deactivated or removed by mistake, please refer to this
policy regarding a counter-notice. In the meantime, please do not
reactivate or relist the item(s) in question.
FAQs About Intellectual Property:
Read more regarding the different types of intellectual property,
including copyright and trademark.
My Response to Harpo, with CC to Etsy, and my attorney (Not listed here)
False claims of copyright infringement are of great weight and import, especially when rendered cavalierly, and by an entity such as Harpo. The DCMA provides remedies for such bogus claims.
Please note that your contacting of Etsy, regarding my statement of fact, which you falsely assert or infer is a copyright infringement, is not only an infringement of my First Amendment rights but may constitute slander and or defamation, and damage to my reputation, as it – as stated above – falsely asserts a violation of copyright infringement.
Further, by so doing, you may well have violated the Commerce Clause of the U.S. Constitution.
The item posted in Etsy bears no character or image other than that for which I am the sole creator and rightful copyright owner.
I will continue, as I have and will do in numerous forums, state the same fact that I was a guest on Oprah (a statement of fact). I invite you and Harpo to deny this fact in writing to Etsy or anyone else, and provide me a copy.
I invite Etsy, as a means of not being a party to this defamation, to require this of you. Documentation of the fact I have stated, is available, and would be clear to any trier of fact.
If you have faith in your assertion of a copyright infringement, I invite you to pursue legal action against me. Otherwise, unless remedied by you, I will pursue justifiable claims of damages resulting from your false claim, which adversely affects my personal reputation, and standing, and causes understandable distress.
I request you correct this matter with Etsy, a company you have now involved by having them take unilateral action without investigation. It is the least you can do.
Presently, and for a limited time, I herewith legally demand a tangible and unequivocal correction of this matter, and a written apology.
One of the most memorable
of my scores of Radio and Television Interviews:
As of Thursday, April 3, 2014, I received a response that failed to address the issues I have raised in my initial response, and suggested that if I want them to withdraw their claim, I should not mention the fact that I was a guest on Oprah.
So, it appears that “Oprah”, unlike the name of GOD, is the name shall not be mentioned, under any circumstance, except by special dispensation. To do so appears to be “blasphemy or heresy or both. So be it. I will continue to state the undeniable fact, as is my First Amendment Right. And will seek any and all remedies to seek redress.
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