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Lawsuit Claiming Fyre Festival Sent Cease & Desist Letters To Online Critics Doesn't Show Any Actual Evidence

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If, somehow, you've avoided all the news about the Fyre Festival from the past few weeks... well... you've been missing out. There's a ton of coverage basically everywhere, but what was promoted as an upscale music festival on a private island in the Bahamas, complete with private flights, luxury lodging, and fine dining... turned out to be... nothing. Despite having lots of rich and famous folks (especially Instagram stars) promoting the festival for months, it eventually appears that promoting and hyping was about all that was done for the festival, rather than actually organizing stuff. The festival was "canceled" but not before a bunch of people made their way to a not-so-private island in the Bahamas (Great Exumas) and discovered... that there was effectively nothing there. There was no music festival. The "lodging" was emergency relief structures. The "fine dining" was slices of bread and cheese with some lettuce. It's been quite a story.As you can imagine there have been lawsuits filed. Oh so many lawsuits. The sixth of these lawsuits, filed by Kenneth and Emily Reel, is getting a bunch of attention, in part because it includes the festival's PR agency, 42West, rather than just the "startup" behind the festival, Fyre Media (it was supposed to offer some sort of app), its founder Billy McFarland, and the musician Ja Rule, who was supposedly also a creator of the festival. But, even more interesting for those of us here at Techdirt is that he latest filing also claims that Fyre Festival has been threatening social media posters with cease-and-desist letters for posting negative things about the festival. That's what puts this squarely into Techdirt/Streisand Effect territory.You can read the full filing here or below. Admittedly, the filing is... kinda weak. There seem to be many claims that are little more than cut-and-pasted from media reports (without citation or credit). For example, the social media cease-and-desist threats are not shown with much detail (and don't appear to be included as an exhibit). Here's what the lawsuit says:

As for those individuals who elected to speak negatively about the Defendants on social media, they are now being threatened with legal action via cease and desist letters. Specifically, if the social media comments were not taken down, the Defendants claim they could incite violence, rioting, or civil unrest, with the caveat that if someone innocent does get hurt as a result Fyre Festival will hold you accountable and responsible.
It is a little unclear from the filing if the lawyers have actually even seen this cease and desist letter. It would appear to be almost word for word identical to a TMZ post from a week ago, which doesn't present any actual evidence of the cease and desist letter -- and doesn't name the lawyers or even the recipient of the letter. The lawsuit doesn't cite the TMZ article, but also doesn't present any additional evidence of actual letters being sent (normally, you'd think it would be included as an exhibit if they had such a letter). Still, if such letters were actually sent, I imagine it won't be long until they're public.It's also odd, because this bit about the cease-and-desist letters comes in the same section as the discussion concerning the "application" that Fyre Festival has set up for people to ask for their money back. If you haven't heard, rather than just refunding the money, the Festival has asked people to "apply" for a possible "refund" providing little to no info on whether or not they're likely to get it. The lawsuit points out, reasonably, that while the festival promised refunds, asking people to apply and then providing no details or process is not quite the same thing as actually giving the refunds. And, most amusingly, the "application" has been mocked for encouraging people to accept passes to next year's Fyre Festival (which they insist will be a real thing) in lieu of a refund. Really:
If, somehow, you can't see that image, it shows one of the questions from the application (question 13 -- which raises a separate issue of just how many questions should you have to answer to get a freaking refund for a festival that didn't happen?!?) saying:
Would you prefer to exchange your 2017 ticket(s) for additional 2018 VIP passes, as opposed to receiving a refund (Ex: If you purchased 3 passes for 2017 you would receive 6 total 2018 VIP passes).As you likely know, we've been through the ringer on social media and this has been a challenging week for us as we were unable to realize our dream on the first try. We are now one of the world's most famous festivals, for all the wrong reasons. We want to reverse that sentiment by producing something amazing. We are fully committed to this event next year, and to producing it in the most professional way, with experienced professionals. We have received support and commitments from several musicians to perform at next year's event. We would be so thankful to have your support as well.
And then, the kicker: it provides two "options" for the recipient to choose from:
  • Yes, let it ride. I'd love to support you all in creating something amazing!
  • No, I'm not down for the adventure
  • I have so many questions just about this question. Like, how they'll be producing an event when they're buried under at least 6 lawsuits and possibly more. Or how they can promise it will be professionally run by like, real professionals, when it appears that none of that happened this time around. Or how they can promise that "several musicians" have "committed" to performing when all the musicians who similarly "committed" to perform at this year's event... didn't. The main guy behind all of this, McFarland, has claimed publicly that "currently 81% of guests who have filled out the refund application have said they would like to attend Fyre Festival 2018", which I think people should view with the level of credibility of the guy who promised a music festival on a private island with luxury lodging and fine dining, and left a bunch of wealthy people on a non-private island in relief tents with bread and cheese and no electricity.Either way, it's a little unclear if Fyre Festival is actually sending cease-and-desist letters, or if it's maybe a part of this crazy long refund application that suggests that Fyre Festival "will hold you accountable and responsible" for negative postings. But... whatever it is... threatening people for saying bad things about your non-existent and massively overhyped festival seems... unwise.And, reading through the various lawsuits and news reporting over this, it certainly seems that the number of "unwise" moves by the organizers of this event began long ago and kept piling up at a fairly astounding rate. The lawsuit includes a bunch of claims that appear to have originated in a NY Mag article by Chloe Gordon, who wrote that she was hired by Fyre Festival to help out, and that it was clear things would be a disaster months ago. Oddly (again), the lawsuit doesn't note that many of the claims in the lawsuit came from that article, but they do... including this astounding claim about a meeting six weeks before the event was supposed to take place:
    Meanwhile the event planners were holed up indoors putting together a game plan and a budget. With so little having been prepared ahead of time, the official verdict was that it would take $50 million to pull off. Planners also warned that it would be not be up to the standard they had advertised. The best idea, they said, would be to roll everyone's tickets over to 2018 and start planning for the next year immediately. They had a meeting with the Fyre execs to deliver the news. A guy from the marketing team said, Let's just do it and be legends, man.
    Yeah, so sending out threatening cease-and-desist letters as mentioned in the lawsuit is certainly within the realm of possibility.

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    Bethesda's Pete Hines Shrugs His Shoulders About Trademark Dispute With No Matter Studios

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    If any single aspect of common trademark disputes has become the thing that annoys me the most about them, it's how often the canard from trademark bullies that they have to be bullies by order of trademark law is trotted out for public consumption. You can almost set your watch to it: trademark bully does trademark bullying, public backlash ensues, trademark bully falsely explains that if it doesn't bully it loses its trademark rights, the public usually backs off. While it would be unreasonable to expect the general public to be up on the nuances of trademark law to the degree of someone who is paid to write about it, it's not unreasonable to smack down attempts by those who know better but who actively attempt to misinform that same general public.Which brings us to Bethesda. We recently discussed an indie studio called No Matter Studios, which had launched a successful Kickstarter campaign for its game Prey for the Gods, being bullied into changing that name to Praey for the Gods by Bethesda. Bethesda recently released a AAA title called simply Prey and is enforcing its laughably broad trademark rights, acquired by Bethesda from 3D Realms, on that name. Faced with a trademark dispute by a much larger company, No Matter Studios caved and made the requested changes which, as we pointed out in the original post, are so absurdly inconsequential as to beg the quesiton of how much real customer confusion was Bethesda actually concerned about in the first place. Right on time, the public backlash began, with much of it directed at Pete Hines, who is in charge of PR and marketing for Bethesda games. And, right on time again, Hines trotted out the shrugging excuse blaming the law rather than his company's actions.

    Many contacted Bethesda' Pete Hines on Twitter and voiced their concerns over the development, in response to which he said that ZeniMax had contacted No Matter Studios in 2015 to warn them of potential implications but ZeniMax's letter was ignored. He said that neither companies are responsible for how trademark laws work and that there have been countless times when ZeniMax's own studios had to change game titles to accommodate the same laws that No Matter Studios is now having to comply with."We reached out in Nov 2015. We tried talking to them. Well before their Kickstarter. And they could have used a name that didn't infringe on our mark like we have 1,000 times when we came up with something another company marked. I'm not a trademark lawyer. Or any kind of lawyer. They disagree. Doesn't matter what I think about any of this."
    Hines was even more specific on Twitter in response to those who raised concern over this dispute.

    As I am going to apparently be forced to keep repeating, this is the sort of thing that sounds good but simply isn't true. There is no blanket requirement that every use of a trademark by another party must be policed in every instance, forever and ever, amen. The requirement is for appropriate policing, with the likelihood of customer confusion governing what is and is not appropriate. Hines has gone back on Twitter and sent out reporting from media that buys into the forced bullying canard. Much of that reporting repeats the myth whole cloth, but its belied by some very simple facts.The chief fact to consider is that the changes requested by Bethesda and agreed to by No Matter Studios are so inconsequential. They mostly amount to a single character being added to the latter's game title, an "a." The game's logo, meanwhile, remains untouched and reads as Prey for the Gods. There is nothing in trademark law that requires action resulting in so little consequence. More importantly, were this to be a valid trademark concern on the part of Bethesda, the necessary results of any dispute would have to be more substantial. Remember that customer confusion drives all of this. If there is no potential for confusion in the marketplace, there is no need for the policing of the trademark. Given how the likely lack of confusion in this example is the result of one game's title consisting of a single word while the other's title uses that word as part of a longer and unique title, it's difficult to imagine a future in which Prey for the Gods keeping its name results in Bethesda being stripped of its trademark rights to Prey.So, please, don't buy the excuse. Hines himself notes on Twitter that he is not a lawyer. And I will say that he generally seems to be actively trying to engage these concerns, rather than ignore them. Given those two factors, I almost wonder if Hines himself is misinformed on the subject.

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