San Antonio Spurs fans "not so sophisticated" says web's attorney in George Hill nude picture battle

In a response to a San Antonio Spurs attorney who formally demanded a website “immediately and permanently remove” photographs that depict player George Hill “in various states of undress,” the opposing attorney from Tempe, Arizona responded negatively.

“I realize that NBA fans in the San Antonio area may not be so sophisticated, particularly if any of them have opted to support Mr. Hill and the Spurs rather than the undeniably superior Dallas Mavericks,” responded attorney David Gingras, representing Thedirty.com in a February 5, 2010 letter to San Antonio attorney Eric Barbosa.

“Since you have not cited any authority for this premise, I assume you could not find any,” wrote Gingras, responding with “trademark law does not apply to criticism of celebrities making fools of themselves.”

“That’s not surprising since as Paris Hilton, Tiger Woods, or Britney Spears could explain to you, this argument is totally without merit,” replied Gingras. “Strangely, many people seem to share this mistaken belief that the Lanham Act prevents all uses of a trademark without the holder’s permission.”

In his February 4, 2010 letter to “Mr. Karamian,” Barbosa, represented that the “Spurs are the exclusive agent and proprietor for the Spurs’ trademark, goodwill, business reputation and intellectual property rights associated with their trademark.”

“Mr. Hill’s status as a Spurs player and the display of a photograph of Mr. Hill in a Spurs’ uniform are being used to generate interest in the thedirtys.com’s website and revenue for thedirty.com,” wrote Barbosa, of Bracewell & Giulliani, the renowned law office on South St. Mary’s Street in San Antonio.

Gingras reply included the assertion that “common law misappropriation does not apply” by example: “If you take a person’s name or image and use it on a commercial product (think: Kobe Bryant-brand condoms), then you are required to obtain the consent of the person before you use their fame to advertise and promote the product.”

“But just like the trademark claims, misappropriation claims are narrowly construed in deference to the First Amendment,” Gingras continued.

“As I understand it, your claim appears to be based on the fact that the recipient of Mr. Hill’s ‘sext’ messages took a photo of her (or his?) phone to show portions of the messages,” wrote Gingras. “Because presumably Mr. Hill knew the person he was sending these messages to, they were never ‘intercepted’ nor were they received without consent.”

Gingras said “there is no basis for any claim under the eavesdropping statue.”

If the Spurs “feel that Mr. Hill’s conduct is incompatible with its public image, those concerns should be directed at Mr. Hill, not Mr. Richie (Nik Richie, founder),” said Gingras. “Censoring newsworthy material from the public’s view does not somehow change the fact that this conduct occurred.”