Cease and Desist Letter Copyright Infringement

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Cease and Desist Letter Copyright Infringement

cease and desist letter copyright infringement Copyright infringement is highly prevalent in the United States, especially with increased internet access. Cease and desist letters are an increasingly common way for copyright holders to handle copyright infringement and prevent ongoing infringing activity.  Statistics say that up to 80% of Americans admit to downloading copyrighted material illegally, 35% have obtained music illegally, and 30% of computer software is pirated.

Copyright Infringement Letter

If you believe someone is infringing your copyright, you have the option to send a copyright infringement letter, ordering the individual to cease and desist the infringing activity.

As a copyright holder, there are several benefits to sending this letter, including:

  • Ending the infringing activity
  • Educating the other party regarding their infringing activity. Often people believe that images, photographs, text, and music available online are free to use, not considering the possible copyright infringement ramifications of their actions, and
  • The possibility to obtain a monetary settlement for the infringing use.

Often, copyright holders are able to resolve matters quickly without needing to resort to a federal copyright lawsuit.  The possibility for efficient, amicable, and quiet resolution is one of the reasons why cease and desist letters are often successful in ending the infringing activity.

A successful copyright infringement letter contains several parts. First, the letter should identify the copyright holder.  Second, the letter should identify the copyrighted work. You can do this by:

  • Listing the title of the work;
  • Providing the U.S. Copyright Registration Number, if applicable;
  • Including a copy of the work, if possible.

Third, the letter should explain how the other party infringed on the copyright. This explanation will depend on the type of work, as well as the specific facts surrounding the infringing activity. If the work is being sold without permission through sites like Amazon, eBay, or Etsy, you should include a link to the sales page, as well as a screenshot of the unauthorized sale. If a local store is not authorized to display your artwork, but does so anyway, you can include photographs of the item for sale. Sometimes, copyright holders will purchase the unauthorized work and utilize the sale as evidence that the infringing party was selling the work without permission.

Fourth, your cease and desist letter should include a legal analysis of the infringing activity, laying out clearly how the other party’s activity infringed on the copyright.

Fifth, the letter should list your demands. Demands in a copyright infringement letter vary widely, depending on the nature of the infringing action as well as the desired outcome, such as:

  • Requesting that the infringing item be removed from sale or display on a website or in stores
  • Asking for a settlement to release the other party from liability for previous copyright infringement activities
  • Asking for a licensing fee for previous unauthorized use.
  • Demanding proof of compliance within a certain period of time.

Finally, the letter should outline the next steps you will take to enforce your copyrights, should the other party fail to comply. Typically, this would involve filing a copyright infringement lawsuit in federal court.

If the other party does not comply with your demands by removing the infringing material and you proceed with a lawsuit, your efforts to educate the other party as to their infringing actions and their noncompliance can be utilized as evidence of willfulness, which could translate into higher damages.

Digital Millennium Copyright Act Takedown Notice

If copyrighted material is being hosted online in an unauthorized way, copyright holders have another method for removal of the infringing material. The Digital Millennium Copyright Act (DMCA) provides a “safe harbor” from copyright infringement liability for internet service providers (ISPs) and web hosts if they assist with enforcement of copyrights. Failure to comply with provisions opens these providers up to copyright infringement liability claims.

Specifically, the DMCA safe harbor provisions require ISPs to:

  • Have a registered agent on file with the U.S. Copyright Office
  • Accept “takedown” notices from copyright holders, and
  • Respond to copyright infringement takedown notices in a timely manner by investigating claims and removing pages containing infringing material.

Because of these safe harbor provisions, if copyrighted material is being hosted on a website, in an online store, or showing up in search results, you can send a copyright takedown notice directly to the ISP and demand swift action.

Similar to a cease and desist letter, your copyright infringement takedown notice must include:

  • Your contact information
  • The identity of the copyrighted work, as well as a statement that you are the copyright holder, or that you are the agent of the copyright holder
  • The identity of the infringing material, including a link to the site or online store
  • A statement that you have a good faith belief that the infringer’s actions are unauthorized,
  • A statement that the information provided is accurate, and
  • Your signature

Many web hosts and ISPs have online contact forms available for copyright holders to fill out. Copyright holders may also send a hard copy to the agent on record with the U.S. Copyright Office.

Response to a Copyright Infringement Letter

If you get a copyright cease and desist letter, you should not ignore it, but you also should not panic. There are many different types of cease and desist letters and you do have options for how to respond. Generally, you have the option to:

  • Completely comply with the demands of the letter;
  • Comply with some, but not all, demands;
  • Attempt to negotiate a resolution with the copyright holder; or
  • Refuse to comply and wait and see if the copyright holder takes any further steps.

Each situation and each individual will have a different response that is heavily contingent on both the facts and that person’s risk tolerance level.

Initial Research into Copyright Infringement Allegations

To determine the proper response for a copyright infringement letter, you should first read it to determine:

  • Who the copyright holder is,
  • What the copyrighted material is,
  • What the infringing action is they claim is occurring,
  • What the copyright holder wants you to do, and
  • The expected time frame for proof of compliance.

Second, you should conduct research into the letter’s claims. You can visit the U.S. Copyright Office’s website to determine if the copyright holder has a valid copyright registration in the work in question. Registration is not a requirement for enforcement of one’s copyrights, but it is a prerequisite to filing a copyright lawsuit and receiving statutory damages.

When researching the copyright holder, you should also look into how litigious they are. Some copyright holders and law firms are extremely litigious.  While past behavior does not influence future actions when it comes to filing lawsuits, a company’s litigation reputation can play a part in the risk analysis done in deciding how to respond to a copyright infringement cease and desist letter.

Additionally, you should look into the circumstances of the alleged infringement. Did the infringing action actually occur? This could involve looking at your website to determine if the photos and images you use are the ones listed in the copyright infringement letter. If the copyright infringement cease and desist letter states that someone is using your wifi to download movies without paying for them, you should interview everyone who has access to the account to determine if this is the case.

Fair Use Exemption to Copyright Infringement

You should also consider whether your actions fall under a fair use exemption to copyright infringement. The Copyright Act lists four factors to consider in determining if a usage falls into this category:

  • Purpose and character of the use – was the usage for commercial or business purposes, or was it for nonprofit educational purposes? Teaching, scholarship, and research purposes are more likely to support a claim for fair use than usage for a commercial venture.
  • Nature of the copyrighted work – works with a high degree of creativity, such as a novel or movie are less likely to support a claim of fair use, while works that are more technical, such as a factual report, are more likely to support acclaim of fair use.
  • Amount and sustainability of the portion used in relation to the copyrighted work – posting a small clip of a movie, or a screenshot on a blog is more likely to support a fair use defense than making the entire work available for free.
  • Effect of the use upon the potential market for or value of the copyrighted work – if the unauthorized use of the copyrighted work is affecting the copyright holder’s profits, a claim for a fair use defense may not sustainable.

Moreover, you are typically allowed to discuss the copyrighted work through commentary and criticism, and news reporting, and you may also be able to make parodies or satire of the work in question.

Claiming fair use is not an automatic ‘get out of jail free’ card – it will not automatically stop all copyright infringement proceedings, nor will it prevent a lawsuit. However, knowing that you are able to present a fair use defense may affect your decision as to how to respond to the copyright infringement cease and desist letter.

Cost-Benefit Analysis of Compliance

Next, you should review the actual demands in the letter and determine the cost for compliance and noncompliance. Demands can include:

  • A request to remove a photograph, image or text from a personal or business website;
  • An order to pay a certain amount in settlement in exchange for a release of all previous liability claims; and
  • Willfully signing a permanent injunction that you will not engage in infringing activity in the future.

The cost of compliance may include the money spent to pay a settlement, as well as any time spent removing photographs, images, or videos from websites that the copyright holder owns.

The cost of noncompliance, while at first may be nothing, could turn out to be much more. If you do nothing and the copyright holder files a lawsuit, you could be facing attorney’s fees and costs, and copyright infringement statutory damages that range from $200 to $150,000 per infringed work. Noncompliance may also come with an emotional toll of dreading the potential fallout from a potential future lawsuit.

Even if you did nothing wrong, a copyright infringement lawsuit is part of the public court record and could potentially damage your business’s reputation in your community. If you are an individual, it may affect your personal reputation, and might negatively affect things you are attempting to accomplish, like getting a promotion or finding a new job.

If you are negotiating a settlement, you may be able to negotiate the amount of money that is being paid, as well as if the payments will be made in installments. Once the settlement contract is signed, you want to ensure that you follow all the terms of the agreement. Often, this type of settlement contains confidentiality language, meaning that you cannot speak about the agreement publicly, which includes disclosing the amount of settlement in online forums. Doing so may invalidate the agreement and open you up to further liability for copyright infringement.

Photo Copyright Infringement Letter

If you believe that someone has used your photograph without permission on their website, you can send a cease and desist letter to the owner of the website.  In your letter, you should be as specific as possible regarding:

  • Your rights to the photograph
  • The location of the infringing photograph on the other website.
  • Your ideal resolution – do you only want the photograph removed, or do you also want a licensing fee, royalty payment or damages?

Even if you have not registered your photograph with the U.S. Copyright Office, the moment you create it, you own the copyright to that work and have the ability to take action against online infringement.

If the website owner is unwilling to remove the photograph, you can also send a DMCA takedown notice to the company hosting the website, such as GoDaddy, and have the image removed from Google search results, as well.

Image Copyright Infringement Letter

Similarly, if you create digital images, you own the copyright as soon as they are created. Because of this, if someone uses your image without permission, you can enforce your rights by sending a cease and desist letter informing the other party that they are infringing your copyrights in the image.

Many people committing infringing activity are unaware that their actions are unlawful, which is why this sort of cease and desist letter is an effective tool in battling online image copyright infringement.

Mandour & Associates – Copyright Infringement Letter Lawyers

If you have received a copyright cease and desist letter, or need to send one, we strongly recommend that you have an experienced copyright attorney to handle the matter.  We very frequently handle cease and desist issues and aggressively fight for your rights.
 

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