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Questions About Writing Cease and Desist Letter for Copyright Infringement

A cease and desist letter is a legal notice sent to someone you believe is infringing on copyrights you own the rights to. The letter is your way of stopping them.

There are three main elements that should be clearly stated in every cease and desist notification:

  • Your rights stating that you own the materials
  • That the user is violating your rights
  • That the user must stop doing something (specific) immediately (e.g., remove an image or photo from a website that you have the rights to

Sometimes cease and desist letters contain additional instructions, or demands, such as a demand for compensation—referred to as a settlement demand letter—or a formal request for proper attribution to correct the violation.

It is important to note that just because you make a demand, your letter does not establish that you have a right to compensation or even that your claim to have exclusive rights to something is valid. Those are legal issues that may need to be settled in court—specifically in a civil lawsuit if you can’t work it out on your own with the business or individual that’s infringing upon your rights.

Do I Have to Send a Letter, or Can I Just Sue Them?

You do not have to send a cease and desist letter prior to filing a civil claim against someone. However, if you are planning to sue someone on your own, doing so without first consulting with an attorney is not a sound option because you lack the legal know-how.

If your claim is small, chances are you can work things out without going to court. That recourse allows both parties to settle a dispute without bearing the expenses of lawyers and court fees.

If you do go straight to court, make sure you are prepared to explain why you didn’t choose to try and work things out with a cease and desist letter. If a defendant can show they were unaware they were violating copyright laws, you may be awarded less in damages. However, if you can show that you notified the defendant with a cease and desist letter and they continued to violate copyrights laws, your damages award could increase if you win the lawsuit.

Can I Write a Cease and Desist Letter, or Must I Hire an Attorney?

The short answer is no, you do not need to hire an attorney. Anyone (whether the complaint is well-founded or not) can send out a cease and desist letter. However, there are reasons why you may want an attorney who specializes in copyright laws at least review your letter before sending it out.

Benefits of Having an Attorney Send a Cease and Desist Letter
Civil claims can be complicated, expensive, and drawn-out (often taking years to be resolved). Even if you get a verdict in your favor, the defendant may file an appeal and further extend the legal process. If you have a good copyright infringement case, an attorney will most likely handle your case free of charge—meaning, they will take it on a contingency fee basis. In that case, you only pay the attorney if she wins a verdict or obtains a settlement for you.

An attorney can also advise you if your rights have, in reality, been violated and if so, if you have enough grounds for legal action.

Also, an attorney can tell you if a cease and desist letter is the appropriate course of action, and can even write the letter for you.

In almost all cases involving consumers, a letter from an attorney will be taken more seriously than a letter from an individual.

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Copyright & License Types

Finding stock photos and existing images is often quicker, cheaper and more practical than producing your own, Whether free or not, these resources normally come with a license to ensure fair use. For professionals, understanding the limitations of a license is critical; with this knowledge, you’d be surprised by what’s available. Understanding copyright and licenses allows us to do what we do best: be creative.

When we create something — let’s say a photograph — we own the copyright, which is our exclusive right as the author to own that work. We control who else can use our work and in what manner. For example, I could allow someone to print my photograph or adapt it in a piece of art. Rather than establishing verbal agreements, I can distribute my work with a license that sets the guidelines for use. The things that are copyrighted are sometimes referred to as “intellectual property.”

Licenses are granted by an authority to allow a usage; in my case, the use and distribution of resources by the copyright owner (i.e. me). I may decide to offer my photograph for free or charge a price; either way, I can include a license to limit usage, and I maintain the copyright. Just because someone pays money doesn’t mean they have full control or rights to what they’re buying. Licenses can dictate the number or uses, the bounds of use and even the length of time until the license expires.

Moreover, under “work for hire,” the employer holds the copyright, not the author or creative; in many cases, this is a company (such as a creative agency) or its client (by contractual agreement). In such cases, the creator retains “moral rights” to their work, including the right of attribution. This is partly why published articles refer to the author, although moral rights can include anonymity.

What Is “Fair Use”

“Fair use” is an exception to the exclusive rights held by the copyright owner. It exists in some countries such as the US and UK. Under it, in certain cases, using work without permission is possible. If someone’s usage is defined as fair use, then they don’t need to obtain a license. Essentially, using copyrighted material is a legal right. Examples of fair use might include:

  • Educational purposes, such as teaching and student research;
  • Making commentary and criticism as part of a news report or published article.

There’s a misconception that noncommercial or nonprofit use is always acceptable. It isn’t. Fair use is a legal term and is judged case by case. Always research thoroughly if you think your use of copyrighted material is legal.

What Is “Public Domain”?

Work that falls in the “public domain” basically has no copyright owner. You can use, modify and redistribute it to your heart’s content. An author can forfeit their copyright and, thus, put their work in the public domain (although it’s not quite that easy, as we’ll see later). Copyright ownership expires after the author’s death (generally 50 to 70 years after death in most countries).

Legal Jurisdiction:

Every country has its own interpretation of copyright law, but there are many agreements between nations. Licenses are enforced under copyright law, which is different than contract law. The distinction here is questionable within certain jurisdictions, each of which applies the law differently.

The Berne Convention (for the Protection of Literary and Artistic Works) was established in 1886 and is an international agreement that governs copyright. It states that each member state must recognize the copyright of work from other countries, and it must extend the same rights to foreign work that it gives to those of its own citizens. It also makes clear a minimum standard of protection for copyright owners. To date, 164 countries have signed this agreement.

Licenses can be limited to certain jurisdictions. So, while something may be free in one country, the copyright owner could reserve all rights in other countries.

If you’re reading this, I can guess pretty confidently that you work on the Web and that you are, or will be, purchasing licenses from copyright owners in different countries. These licenses are bound by the laws of those countries, and you must respect them.

We’re getting into political and legal territory here. Remember: if in doubt, get legal advice.

License Terminology

A license can be written from scratch, but most people choose a well-known one. We’ll cover the common licenses that relate to our industry of website design and development, specifically those that allow for free usage — “free,” meaning that no money is required. Generally, licenses that govern paid resources are written individually, but all licenses have commonalities.

There is obviously a fundamental difference between, say, development code and stock photography. So, it should come as no surprise that a range of licenses exist. Each is tailored to the usage. Before we dive into them, let’s go over some common terminology:

  • “Copy” A simple copy of the original work.
  • “Modify” To alter copyrighted work in some way before using it.
  • “Derivative work” The result of modifying copyrighted work to produce new work.
  • “Distribute” The act of giving someone your work under a license.
  • “Redistribute” The act of distributing work and its license after obtaining it under license from the original copyright owner.
  • “Share alike” Permission to distribute derivative work under the same or a similar license.
  • “Credit” or “attribution” The act of identifying the original copyright owner.
  • “Copyright notice” A written phrase or symbol (©) informing of copyright ownership (not necessarily required by law).
  • “All rights reserved” A common copyright notice declaring that no usage rights exist (again, not necessarily required).
  • “Warranty” A written guarantee included with the license (or, usually, not).

Creative Commons
Lawrence Lessig founded Creative Commons (CC) in 2001 to create a series of easy-to-understand copyright licenses for online creative work. These licenses established the notion of “some rights reserved.”

The Creative Commons license has six variations. It’s really a collection of licenses that cover particular uses. These include whether the licensed work can be used commercially, whether it can be modified, and whether derivative work can be redistributed under the same (or a compatible) license. A Creative Commons license can be restricted to certain jurisdictions or apply internationally.

~ by David Bushell.

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Everything About Cease and Desist Letters

A cease and desist letter does not automatically signify a lawsuit. It is simply a warning about illegal behavior that lets you know that further penalties could follow if the behavior, such as patent infringement, doesn’t stop.

Here are some ways it is possible to violate the intellectual property of another:

  • Plagiarizing someone’s work
  • Using an invention without the right to access it
  • Engaging in illegal or suspicious activity that involves someone’s work

The first step that you can take to address these issues is to send a cease and desist letter. This letter puts the person in violation on notice that they are engaging in illegal use of a property. It advises them to stop, or further action will occur.

Other names for a cease and desist letter include:

  • Cease and desist notice
  • Cease and desist form
  • Demand letter
  • Stop harassment letter

All of these examples are simply formal letters warning the person to stop their illegal behavior.

What is a Cease and Desist Order?

A cease and desist order is different from a cease and desist letter. The main difference is in terms of legality. Letters have almost no legal standing. Orders do. A cease and desist order is granted by a court. It serves as a temporary injunction. The party that receives the order must stop what they’re doing until a trial can be held. After the trial, a permanent injunction may be ordered.

Reasons to request a cease and desist order include:

  • Libel
  • Defamation

Libel is when you are being attacked in print. Defamation is a verbal attack on your reputation.

What Are the Uses of a Cease and Desist?

There is a number of cases that might lead someone to issue a cease and desist. These include:

  • Character assassination, libel, slander, or defamation
  • Trademark infringement
  • Copyright infringement
  • Patent infringement (Design or Utility)
  • Violation of non-competition agreement
  • Harassment, including by debt collectors under the Fair Debt Collections Practices Act
  • Breach of contract

A cease and desist can also be used to stop contributory infringement. This is when someone knowingly contributes to infringement, but did not actively participate in it. It is sometimes known as “secondary liability” or “contributory liability.”

Trademarks, copyrights, and patents are the three major ways to protect intellectual property. Trademark and copyright apply the moment you are the author of something. They also apply when you begin using a specific brand, phrase, or trade dress in connection with your professional practices. Filing official paperwork for these is optional. However, registering your protections can hold great weight in court.

Patents, on the other hand, are more complex and expensive. They must be registered for protection. They protect inventions, physical creations, and the processes that go into their functioning.

When Should I Send a Cease and Desist?

Use a cease and desist notice if you want to issue a formal warning to someone to stop doing what they’re doing. This includes using your property, harassing you, or illegally using your trademarks.

Usually, but not always, a cease and desist is the first formal step following an informal notification. Many people first informally ask the infringer to stop what they’re doing. If they don’t, a cease and desist is the next step. It adds a weight of formality to your request. It can also serve as a step to begin further legal processes, if necessary.

A compelling reason to use a cease and desist is that it is much faster than beginning formal legal proceedings. It also often stops the offending behavior without the need to take it any further.

What Legal Weight Does a Cease and Desist Notice Have?

In practical terms, a cease and desist has no real legal weight. However, it fulfills an important function in the legal process. It establishes that you have told the offender about their violation. They now cannot claim they didn’t know they were in violation.

Such a letter places an informal injunction on the actions of the person in violation, who can then:

  • Stop their behavior
  • Challenge the validity of the letter
  • Ignore it, and face the consequences of further legal action

Say the cease and desist is legitimate but challenged. The next step is a formal hearing to review the validity of the demands in the notice. The judge will determine if the defendant must stop the behavior. Failure to comply after that is punishable by law.

Can I Sue Without Issuing a Cease and Desist?

Yes, you can file a civil suit without writing and sending a cease and desist. However, issuing the notice has benefits. First, it can begin negotiations to settle the matter without a court battle.

Second, it puts the defendant on notice. It’s more difficult to sue someone for doing something wrong, if they didn’t know they were doing anything wrong.

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Cease and Desist Letter Of Copyright Infringement

A Cease and Desist Order is just a form letter with legalize that says “Stop or Else”. Also known as a C&D, there are many templates found on the web, with examples listed below. Find one that meets your needs and customize it for your specifics.

A Cease and Desist Order is a definite step up in implied threat for action. Accordingly, instead of waiting another 5 days, I recommend you shorten the time to respond to 24 to 36 hours. A Cease and Desist Order means business, and it means business now.

While your first contact letter should go to the party directly involved, a Cease and Desist Order might be worth sending to everyone involved. If you have enough information to realize that the individual won’t respond, consider sending the Cease and Desist Order to every contact you can find related to the website, including the website server host and advertisers, to make sure that all parties get a chance to see it.

Usually this legal looking document with a threat of monetary damages does the job. If it does not, then definitely contact the host server with the Cease and Desist Order, advising them to shut down the site if action to comply with the Cease and Desist Order is not seriously. Most hosts will jump to avoid such actions and will temporarily suspend the site. On occasion, you may find that the host server isn’t the “parent” host, but part of a shared host service. Keep following the breadcrumbs up to the parent company who runs the server.

A Cease and Desist Order can consist of some or all of the following:

  • Notification of the copyright infringement and theft of intellectual property.
  • A demand that they cease and desist from infringing your copyrights.
  • A clear time table for response and deadline.
  • Specific request to remove or destroy the page with the stolen content, or another move that will satisfy your need to have the theft stopped or controlled.
  • Inform them that they are liable for any and all attorney’s feeds, court costs, and damages (only valid for registered copyrighted work – so register your work now.)
  • Inform them of any intentions you have to send copies of this Cease and Desist Order to their ISP, host, advertisers to let them know of the infringement.
  • Clearly state you will take further legal action is this is not resolved to your satisfaction by the deadline.
  • If you want, reinforce your statements with the contact information of your lawyer.
  • Request for identities and URLs of all links to the stolen content.
  • Demand for an accounting of all profits and income derived from use of the infringed content.
  • Demand for compensation for any and all profits and income derived from the copyright theft.
  • Demand for compensation due to lost profits, income, and reputation.
  • Clearly state how they are to respond to you regarding this action, by phone, email, in writing (mail), and if they are to respond directly to you or to your legal representative or lawyer.

Make the letter or email as official looking as possible. If your logo is cute and cartoon-like, create a new, professional looking style just for the serious nature of this letter. For emailed Cease and Desist Orders, make them simple, clear, and easy to read, with double spacing between paragraphs and a clear title. Do not use background art or stationery. Make it look like a memorandum.

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Copyright Registration for Photographers

Each time you take a photo, that image is copyrighted. Assuming that you can prove that you took a specific photo, then misuse of that photo could lead to monetary compensation. But the truth is that most intellectual property lawyers won’t touch your case unless the image has been registered with the US Copyright Office. A copyright protects forms of “authorship” (as opposed to trademarks and patents which protect marks and inventions), and registration confers significant legal benefits to the photographer, namely that you can claim statutory damages of up to $150,000 per image infringed.

A non-registered image isn’t eligible for statutory damages, however, the infringed party can seek actual damages and “disgorged” profits (which in some cases can exceed the statutory limit). The amount of compensation can vary in size, and based on a judge’s interpretation of “willfulness” of the infringer.

For example, if a nefarious publisher uses your unregistered image of a grizzly bear in a magazine, you might be able to claim a few hundred dollars (i.e. not enough to pay the lawyer). But if the image is registered, you could get up to $150,000 in statutory damages.

Statutory infringements are assessed on a per image basis, with a single award available even if there are multiple infringements. If the nefarious publisher uses the grizzly bear image in a brochure and an ad, you’re only eligible for $150k in statutory damages, not $300k.

Additionally, if the nefarious publisher grabbed your images from a single magazine, or single website, there is also only one statutory damage available. The essay of grizzly bears ripped from your website and used in an ad is still only eligible for $150k.

Registration has a huge benefit, so make sure you register your images regularly.