Suite 3300 

920 Fifth Avenue 

Seattle, WA 98104-1610 

Eric Stahl 

206.757.8148 tel 

206.757.7148 fax 

ericstahl@dwt.com

4865-2484-2810v.7 0040701-001072

October 25, 2022 

Via Email 

Roy Q. Luckett 

Acting Assistant General Counsel 

Federal Election Commission 

Office of Complaints Examination & Legal Administration 

Attn: Christal Dennis, Paralegal 

1050 First Street, NE 

Washington, DC 20463 

cela@fec.gov

Re: MUR Complaint No. 8075, Complaint from Smiley for Washington, Inc. 

Dear Mr. Luckett: 

This firm represents The Seattle Times (“Times”), which publishes a daily newspaper, in 

connection with MUR 8075 (“Complaint”), filed by U.S. Senate Candidate Tiffany Smiley and 

Smiley for Washington, Inc. (“Campaign”). For reasons explained below, the Complaint is 

frivolous and retaliatory; the Commission should take no action other than to dismiss. 

The Campaign submitted the Complaint after the Times objected to its use of Times 

intellectual property in a television advertisement broadcast throughout the State of Washington 

beginning in September 2022.1 The Times asked that the Campaign stop using the Times logo 

(which is protected by the Lanham Act) and the content of two news articles (which are 

protected by the Copyright Act). The Campaign responded by complaining to this Commission. 

At bottom, the Complaint is a baseless attempt to mischaracterize a run-of the-mill 

intellectual property dispute as a campaign finance matter. The gist of the Complaint – that the 

Times has not asserted that other uses of its intellectual property are infringing – raises no 

plausible FEC Act violation. The Commission should disregard the Complaint because, in brief, 

(1) it fails to identify any act or forbearance by the Times that could be construed as an 

actionable “contribution”; and (2) the Complaint’s unprecedented theory would require the 

1

 Smiley for Washington, New TV AD: Smiley Takes Murray to Task for “Reckless Policies” 

Fueling Crime Surge, Sept. 2022, https://www.smileyforwashington.com/post/new-tv-ad-smileytakes-murray-to-task-for-reckless-policies-fueling-crime-surge. 

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October 25, 2022 

Page 2 

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Commission to police matters that are outside its purview – namely, whether a particular 

unauthorized use of intellectual property is or is not an infringement. Federal law leaves 

enforcement of copyright and trademark rights to the property owner and, ultimately, the federal 

courts. There is no issue here for the Commission to address. 

As an initial matter, the Complaint fails to identify any allegedly actionable 

“contribution.” The only advertisements referred to in the Complaint are two campaign ads that 

Ms. Smiley’s opponent, Senator Patty Murray, ran in 2016. See Complaint, n.8. But even if the 

Times’ alleged failure to object to those six-year old ads could be construed as “contributions” 

(and, as explained below, it cannot), they would not be actionable. See 52 U.S.C. § 30145 (fiveyear limitations on campaign violations). The Complaint identifies no act, or failure to act, that 

could be the subject of timely action by the Commission. 

More fundamentally, the Complaint rests on the untenable assumption that a copyright or 

trademark owner’s assessment of whether and when to enforce its intellectual property rights can 

be construed as a “contribution.” No authority supports this view. That is unsurprising: 

determining whether a particular cease-and-desist demand is warranted would require evaluating 

whether the underlying copyright or trademark use is infringing – a determination Congress left 

to the exclusive jurisdiction of the federal courts, not the Commission. See 28 U.S.C. § 1338. 

Like any intellectual property owner, the Times has a right, and perhaps an obligation, to 

protect its work against perceived infringements. See, e.g., Grupo Gigante Sa De CV v. Dallo & 

Co. Inc., 391 F.3d 1088, 1102 (9th Cir. 2004) (“Companies expecting judicial enforcement of 

their marks must conduct an effective policing effort.”); 17 U.S.C. § 501 (providing cause of 

action for copyright infringement). The Times sends cease-and-desist requests to third parties, 

including campaign committees (regardless of party affiliation, and even to candidates it has 

endorsed) when it learns of a use that it believes infringes the Times’ rights, or uses its 

intellectual property in a misleading manner. Other news publishers routinely do the same.2

The fact that the Times does not formally object to a particular campaign ad that uses its 

intellectual property does not mean that it supports the candidate, or believes the candidate’s use 

is not infringing. It may simply reflect that the Times was unaware of the use; or that it believes 

that the particular use is de minimis, or a fair use, or poses no risk of confusing or misleading its 

readers.3 In none of these instances can the Times’ forbearance be considered a “contribution.” 

2

See, e.g., CNN sends Trump campaign cease-and-desist letter for misleading ad, CNN, May 

4, 2020; NBC, Tom Brokaw Ask Romney to Take Down Ad Made with News Footage, The Hill 

(Jan. 28, 2012); FOX [News] Sends Cease & Desist to McCain Web Operator, AdWeek (Oct. 

11, 2008). 

3

 For example, the Times may not object to a candidate who it has in fact editorially endorsed 

from accurately depicting the endorsement in a campaign ad. Subjecting the press to liability for 

allowing candidates to accurately inform voters of the newspaper’s editorial position about a 

MUR807500018
October 25, 2022 

Page 3 

4865-2484-2810v.7 0040701-001072

Among other things, a newspaper’s decision regarding whether to assert that its copyright or 

trademark is being infringed requires a fact-specific assessment of the particular use, and how 

likely it is to be found actionable. Making this assessment is a “normal function[] of a press 

entity,” and thus falls within the FEC Act’s press exemption. See FEC v. Phillips Pub., Inc., 517 

F. Supp. 1308, 1313 (D.D.C. 1981), citing 52 U.S.C. § 30101(9)(B)(i). 

Furthermore, the Complaint rests on the assertion that the Campaign had a right to 

appropriate the Times logo and copyrighted material because its use “falls squarely within the 

Copyright Act’s fair use doctrine,” and there is no “likelihood of confusion.” Complaint p. 3. 

The Times disagrees. Political ads are not immune from infringement liability. See, e.g., Hill v. 

Pub. Advocate, 35 F. Supp. 3d 1347 (D. Colo. 2014) (rejecting infringement defendant’s 

argument that use of copyrighted photograph in political flyer was fair use); Browne v. McCain, 

612 F. Supp. 2d 1125 (C.D. Cal. 2009) (denying motion to dismiss copyright infringement and 

Lanham Act false association claims based on Presidential campaign’s use of plaintiff’s song in 

political ad). And “fair use” is not a right to use another’s copyright; it is “an affirmative 

defense requiring a case-by-case analysis.” Harper & Row Publishers, Inc. v. Nation Enters., 

471 U.S. 539, 561 (1985). 

Here, the Campaign’s advertisement uses the Times intellectual property in deceptive 

ways, including by altering the appearance and placement of the Times logo and headlines in a 

manner that falsely suggested the Times (i) ran both articles as lead stories and (ii) endorsed the 

views expressed in the ad, including the Campaign’s interpretation of the articles. Given this 

misleading presentation, the Times believes it was appropriate – in order to protect its editorial 

integrity and its credibility with its readers – to ask that the Campaign cease its unauthorized use 

of Times intellectual property. 

The Times believes the Campaign’s use of its intellectual property would not qualify as a 

fair use, and has the potential to confuse the public. That the Campaign disagrees does not make 

the Times’ cease-and-desist demand, or its alleged decision to not pursue similar demands 

against unspecified other ads, a campaign finance violation. Whether the Campaign is or is not 

an infringer would be an issue for a court to decide. It is not a matter for the FEC.

For all of these reasons, the Campaign’s Complaint lacks merit and the Commission 

should take no further action. If further communication on this matter is necessary or would be 

helpful to the Commission, please feel free to contact me directly. 

candidate would run afoul of the FEC Act’s press exemption (52 U.S.C. § 30101(9)(B)(i)), as 

well as the First Amendment’s prohibition against banning dissemination of accurate political 

speech. See Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 229 (1989) 

(regulation limiting candidate endorsements violated First Amendment because it “burdens 

political speech while serving no compelling governmental interest”). 

MUR807500019
October 25, 2022 

Page 4 

4865-2484-2810v.7 0040701-001072

Very truly yours, 

Davis Wright Tremaine LLP 

Eric M. Stahl 

Counsel to The Seattle Times

MUR807500020
FEDERAL ELECTION COMMISSION

L050 First Street, NE

Washington, DC 20463

AR/MT]R/RR/P-MUR# 8075

STATEMENT OF DESIGNATION OF COUNSEL

Provide one form for each Respondent/lVitness

EMAIL cela@fec-gov

Eric M. Stahl Name of Counsel:

Davis Wright Tremaine LLP Firm:

Address 920 Fifth Avenue, suite 3300

wA 98104

Offrce#: (206\757-8148 Fax#

1y1661sa'(

E-mail: ericstahl@dwt.com

The above-named individual and/or firm is hereby designated as my counsel ard is authoized to receive any

notifications and other communications from the-Comriission and io act on my behalf before the Commission'

4J,,".-

.-1 \

Jr4 C c-.r President

t o /sr laaDate (Signature - RespondenVAgent/Treasurer) Title

Alan Fisco

(Name - Please Print)

Seattle Times ComPanY

RESPONDENT:

(Please print Committee Name/ Company Nrame/Individual Named in Notification Letter)

1000 Denny Way, Suite 501 Mailing Address:

(Please Print)

Seattle, WA 98109

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This form relates to a Fedqal Election comrnission matter that is subject to theconfidentialrty provisions^of 52.u.s.c' $ 30109(a)(12)(A)'

This section prohibits mating public any notification or investigation conducted by the Federal Election commission without the express

&ritter consent ofthe persoa under investigation. Rev. 2021

MUR807500021