April 7, 2023 

VIA E-MAIL

Roy Q. Luckett, Acting Assistant General Counsel 

Attn.: Christal Dennis, Paralegal

Federal Election Commission

Office of Complaints Examination and Legal Administration 

1050 First Street, NE

Washington, D.C. 20463 

Email: cela@fec.gov

Re: Matter Under Review 8075 (People for Patty Murray) 

Dear Mr. Luckett: 

We write as counsel to People for Patty Murray (the “Campaign”) and Jay Petterson (collectively, 

the “Respondents”), in response to the complaint filed by Smiley for Washington, Inc.

(‘Complainant”) in MUR 8075 (the “Complaint”). Complainant alleges that The Seattle Times 

(the “Newspaper”) made a prohibited corporate contribution to People for Patty Murray by 

attempting to enforce its intellectual property rights against Complainant in 2022 and not taking 

similar action against the Campaign in 2016.1

Although the Office of General Counsel notified Respondent of the Complaint in MUR 8075, the 

Complaint does not allege any wrongdoing by Respondent and thus should be dismissed as to 

Respondent. Moreover, the Complaint does not provide any support for a claim that the Newspaper

made, or the Campaign accepted, a prohibited in-kind contribution. Without any consultation or 

coordination with the Newspaper, the Campaign briefly and minimally used Newspaper 

intellectual property pursuant to the fair use doctrine. It is not the Campaign’s fault, much less an 

actionable violation of the Federal Election Campaign Act of 1971, as amended (the “Act”), that 

in the viewpoint of the Newspaper, the Complainant in its advertisement went beyond fair use and 

violated the Newspaper’s intellectual property rights. The Federal Election Commission (the 

“Commission”) has long recognized that when a corporation takes action for bona fide commercial 

reasons it does not make a contribution under the Act. Here, it is absolutely the proper commercial 

role of the Newspaper, and not the Commission, to determine when a use of its intellectual property 

violates its rights and harms its commercial interests. And the Complaint presents no evidence that 

suggests the Newspaper did not send the cease and desist to Complainant for bona fide commercial 

reasons. Accordingly, the Complaint fails to allege any facts that, if true, would constitute a 

violation the Act. We urge the Commission to dismiss this frivolous complaint immediately.

1 Compl. at 2. 

250 Massachusetts Ave NW, Suite 400 | Washington, DC 20001

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FACTUAL BACKGROUND

In 2022, Senator Murray was a candidate for re-election for the U.S. Senate in Washington.2 Her 

Republican opponent was Tiffany Smiley.3 

During the 2022 election, Complainant ran a thirty second television advertisement that 

prominently featured The Seattle Times corporate masthead (the “Logo”) for 11 seconds – nearly 

half the advertisement.

4

 The Logo was featured in the center-right of the advertisement directly 

above two different Newspaper headlines.5 No other news organization was cited in the 

advertisement.6 Apart from a brief flashing of the candidate’s name, the Logo was the only onscreen text displayed until the final four seconds when the required FEC and FCC disclaimers 

come on screen.7

As Complainant states, in 2016, the Campaign used the Logo in two advertisements. The first 

advertisement features the Logo at the bottom of the screen, below a Newspaper headline.8 The 

Logo and headline were featured for three seconds during the one minute and forty-seven second 

advertisement.9 The second advertisement features the Logo at the bottom of the screen, below a 

quoted sentence clause of a Newspaper story.

10 The Logo and sentence clause were featured for 

three seconds during the thirty second advertisement; seven other news organizations are also 

cited on screen in the second advertisement.11 

According to the Complaint, during the 2022 election, the Newspaper sent Complainant a ceaseand-desist letter for the unauthorized use of the Logo and the two headlines.12 The letter noted 

that the content is protected by copyright and trademark and is the exclusive property of the 

Newspaper.13 On September 27, 2022, Complainant responded to the cease-and-desist letter, 

claiming the unlicensed use of the content was permissible and stated Complainant had no 

intention of removing the Logo or the headlines from the advertisement.14 

2 Patty Murray, FEC Form 2: Statement of Candidacy (February 9, 2017, 

https://docquery.fec.gov/pdf/157/201702100200071157/201702100200071157.pdf. 3 Tiffany Smiley, FEC Form 2: Statement of Candidacy (April 14, 2021), 

https://docquery.fec.gov/pdf/959/202104149443321959/202104149443321959.pdf. 4 Cup of coffee, Smiley for Washington, Inc., YouTube (Sept. 20, 2022), 

https://www.youtube.com/watch?v=B6kGg6py6xc. 5 Id.

6 Id.

7 Id. 8 Patty Murray – First 2016 Ad, People for Patty Murray, YouTube (July 22, 2016), 

https://www.youtube.com/watch?v=XGQCPp1Mpgc. 9 Id. 10 Senator Patty Murray Gets Things Done, YouTube (Oct. 10, 2016), 

https://www.youtube.com/watch?v=W478Alr-ZCM. 11 Id. 12 Compl. at 5, Exhibit A. 13 Id. 14 Compl. at 13, Exhibit B.

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To the best of the Campaign’s knowledge, the Campaign did not receive a cease-and-desist letter 

from the Newspaper related to the two advertisements in 2016.

LEGAL DISCUSSION

Corporations are prohibited from making a contribution to a candidate’s committee, and candidates 

are prohibited from knowingly accepting or receiving a prohibited contribution.15 A “contribution” 

includes “any gift, subscription, loan, advance, or deposit of money or anything of value made by 

any person for the purpose of influencing any election for Federal office.”16 “Anything of value” 

includes in-kind contributions, such as the provision of goods or services without charge or at a 

charge that is less than the usual and normal charge.17 The Commission has long considered 

activity engaged in for bona fide commercial reasons not to be “for the purpose of influencing an 

election,” and thus, not a contribution or expenditure under the Act. 18 This is true even if a 

candidate benefitted from the commercial activity.19

Here, the Complaint alleges that the Newspaper “provide[d] its resources” to the Campaign and 

denied the same to Complainant, and therefore provided a prohibited in-kind contribution to the 

Campaign. 20 However, the Newspaper did not directly permit, authorize or have any 

communication with the Campaign about the Campaign’s limited use of the Newspaper’s 

resources in 2016.21 The Newspaper’s decision to take preliminary action to defend its intellectual 

property interests in some circumstances does not imply consent of every other use, at every other 

time, in every other format. 

Even assuming the Newspaper was aware of the 2016 Campaign advertisements using its 

resources, the Newspaper had a bona fide commercial interest in attempting to enforce its 

copyright and trademark rights with Complainant’s specific use. While Complainant featured the 

Newspaper logo prominently for over a third of its advertisement, both Campaign advertisements 

15 See 52 U.S.C. § 30118(a); 11 C.F.R. § 114.2(b), (d). 16 52 U.S.C. § 30101(8)(A)(i). 17 See 11 C.F.R. § 100.52(d)(1). 18 See, e.g., Factual & Legal Analysis (“F&LA”) at 10, MUR 7991 (Google, LLC, et al.) (finding Google’s spam 

filter was in place for commercial rather than electoral purposes and no in-kind contribution occurred despite 

affecting Republican and Democratic emails in disparate ways); F&LA at 4, MUR 6586 (World Wrestling Ent., 

Inc.) (finding that WWE acted with the “sole intent to defend its business reputation” and not for the purpose of 

influencing an election when WWE’s senior vice president sent a letter to a newspaper seeking a retraction of a 

negative article about Senate candidate Linda McMahon, who owned and served as CEO of WWE).

19 F&LA at 6, MUR 7024 (Van Hollen for Senate, et al.) (opining that the “question under the Act is whether the 

legal services were provided for the purpose of influencing a federal election, not whether they provided a benefit to 

Van Hollen’s campaign,” and concluding there was no contribution given the “absence of any objective or 

subjective indication” respondents acted for the purpose of influencing the election).

20 Compl. at 1-2; see 52 U.S.C. § 30118(a); 11 C.F.R. § 114.2. 21 The Commission has previously determined that a corporation’s name, trade name, trademarks, and service marks 

are things of value owned by the corporation, and that authorizing a committee to use them may constitute an inkind contribution. See Factual and Legal Analysis at 6, MUR 7508 (Friends of Sherrod Brown, et al.)(“F&LA”) 

(citing F&LA at 4, MUR 7302 (Tom Campbell for North Dakota, et al.), Advisory Op. 2007-10 (Reyes); F&LA at 

7, MUR 6542 (Mullin for Congress); F&LA at 10-11, MUR 6110 (Obama Victory Fund)). 

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only featured the Newspaper logo at the bottom of the screen for a total of three seconds per 

advertisement. 

Both the Campaign and Complainant took the position that the use of Newspaper resources in 

the advertisements did not infringe on the Newspaper’s intellectual property rights. But the 

Newspaper has every right to determine that one use constituted an infringement while another 

use did not. As Kati Erwert, a Seattle Times senior vice president, clearly explained “ . . . [W]e 

try to be very cognizant of fair use . . . [i]n this instance specifically, [Complainant] is using it for 

an inferred endorsement of her campaign, which violates the policy and is the reason for the 

cease and desist.”22 Further, Complainant’s attempts to quantify the alleged in-kind contribution 

have no basis in reality. Complainant acknowledges the difficulty in ascertaining a cost value of 

being “denied” Newspaper resources, but still attempts to do so and cites an estimated $5,000 of 

production cost for updating an advertisement.23 However, Exhibit B of the Complaint 

contradicts this, suggesting Complainant did not actually incur any costs because Complainant 

unequivocally rejected the Newspaper’s cease-and-desist demand. Even if Complainant did 

decide to change its advertisement, that is a cost Complainant brought upon itself by improperly 

using the intellectual property of a third party. 

Put simply, it is the Newspaper’s right to determine, in light of its commercial interests, when it 

believes that a use of its intellectual property violates its rights and when it does not. That right 

falls squarely with the Newspaper, not with the Commission, the Campaign or the Complainant. 

The Newspaper’s independent decision to exercise that right in the matter at hand amounts to 

nothing more than it acting in the ordinary course of business for bona fide commercial reasons. 

And the Complaint does not present any evidence to the contrary. The sending of the cease-anddesist letter does not constitute an attempt to influence a federal election and no corporate inkind contribution occurred. 

Finally, in several prior matters, the Commission has exercised its discretion and dismissed 

allegations that the presence of a corporate logo or image in a campaign advertisement resulted 

in an in-kind contribution, either because the value of the contribution was de minimis or too 

difficult to calculate.24 Even if the Commission concluded the Newspaper’s inaction in 2016 

22 Gutman, David. WA Senate candidate Tiffany Smiley criticizes Seattle Times, Starbucks, Seahawks, Seattle Times

(Oct. 1, 2022), https://www.seattletimes.com/seattle-news/politics/wa-senate-candidate-tiffany-smiley-criticizesseattle-times-starbucks-seahawks/. 23 Compl. at 2. 24 See First Gen. Counsel’s Rpt. at 20, MUR 6110 (Obama Victory Fund) (dismissed use of corporate names and 

logos to solicit contributions in connection with joint fundraising concert where the companies did not contribute 

directly to the committee or pay costs of the event, the event was modest, and the value of the names and logos was 

not substantial). See also MUR 7302 (Tom Campbell for North Dakota); MUR 6542 (Mullin for Congress) 

(dismissal of allegations that the committee accepted prohibited in-kind corporate contributions where committee 

paid for video advertisements that featured name and logo of the candidate’s business); MUR 6322 (Tommy 

Sowers) (Commission examined use of a corporate logo on a fundraising invitation for an event that served as both a 

campaign event for the candidate and a product launch for a corporation that was unrelated to the candidate, but 

dismissed allegations as a matter of prosecutorial discretion); MUR 5691 (Whalen) (finding no in-kind contribution 

to Whalen’s committee from his restaurant chain because an advertisement created by the company failed to meet 

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resulted in an in-kind contribution to the Campaign, the Commission should follow its precedent 

and dismiss the allegations. 

CONCLUSION

Based on the foregoing, there is no reason to believe that Respondent violated the Act and the 

Commission should dismiss this matter against Respondent immediately.

Very truly yours, 

Jacquelyn Lopez 

Zachary Morrison

Counsel to Respondent

the content prong of the coordination test, even though it used images of Whalen and themes similar to those used 

by his campaign, but failed to expressly advocate Whalen’s election). MURs 6287, 6288, and 6297 (Liberatore for 

Congress); MUR 6331 (Comm. to Elect Shirley Gibson for Congress).

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