Cease and Desist Letter Dos and Don’ts: A Copyright Attorney’s Perspective

Cease and Desist Letter Dos and Don’ts: A Copyright Attorney’s Perspective

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You think someone is infringing your copyright. You see that they’ve posted something that belongs to you on the Internet, either a picture or a photograph or a piece of art or a literary work or a design, and you believe that a cease and desist letter should be sent.

Welcome to Copyright Law Radio. We bring you the best in copyright news, legal advice and information.  From copyright infringement claims and defenses to threat letter issues, DMCA takedown notice letters, copyright licensing, and legal analysis of the latest copyright law cases, we have a copyright attorney who can answer your copyright questions.

You think someone is infringing your copyright. You see that they’ve posted something that belongs to you on the Internet, either a picture or a photograph or a piece of art or a literary work or a design, and you believe that a cease and desist letter should be sent.

Now, there is no question that sending a cease and desist letter is one of the standard items that any copyright law attorney is going to look at as an option, once you come through the door and you tell that copyright lawyer your problem.

My name is copyright law attorney Enrico Schaefer, and I’m here to tell you that you don’t always send a cease and desist letter when you see a problem with Internet-based copyright infringement. There are certain circumstances where sending a copyright cease and desist letter for infringement is the wrong move.

Let’s talk a little bit about the circumstances where copyright cease and desist letters are appropriate. The first thing that any good copyright attorney is going to do, once you come through the door as a perspective client, is get the background information, get the facts. One of the things that that copyright attorney is going to do is to grill you to better understand your claim of copyright ownership over the work. Many people do not understand what it takes to be the author of an original work that is subject to copyright.

Sometimes we’ll find out that the person who claims ownership of the photograph, for instance, isn’t the photographer. The photographer is a friend or works for them or took the picture for them, but they have no agreement with that photographer over an assignment of the copyright, or obtaining that copyright is part of work-for-hire or an assignment of the copyright or a license to the copyright going to someone who wasn’t actually taking the picture.

So the first thing a good attorney is going to do is to better understand who took the photograph, who put pen to paper on the original literary work, whether or not other people contributed to that literary work, and is going to validate the strength of your claim of copyright ownership.

The last thing you want to be doing is putting a copyright infringement or a Digital Millennium Copyright takedown notice in play if you’re not truly the copyright owner. Many lay people do not understand what it takes to become the legitimate owner of a copyright.

The next thing that the attorney is going to do is to better understand what you’ve done in terms of registering your copyright, and to make sure that if you have registered your copyright, that in fact it was done properly and that there were proper disclosures about all the people who contributed to the work, etc. These are very important issues.

If you’re in a band and there’s a song that your group came up with and everyone in the band contributed to writing the song and the music for the song, and in fact the performance of the song, then the question is very quickly going to become: Who is the copyright owner of that work, whether or not it’s the actual song notes on paper or performance of the song with the lyrics? So you need to understand these issues. Just because you are the lead singer of the band doesn’t mean you are the copyright owner of the work.

If you have not registered the copyright with the U.S. Copyright Office, or otherwise in a foreign jurisdiction, then you need to understand, before you send a cease and desist letter or a threat letter, what leverage you do and do not have. It may very well be that you have no right to file a Federal Court lawsuit under the Copyright Act if you have not registered the copyright.

So what are the alternatives to a cease and desist letter for copyright infringement? Well, there are many instances where, instead of threatening the person who has posted something that you believe is infringing the copyright, that we will engage the person in a conversation in order to find a solution.

Keep in mind you may have a limited problem now in that your copyright protected work is posted on one website. What you want to avoid is that that becomes 10 websites or 100 websites. So making the other side angry if you have really weak claims may not be your best move.

A good copyright attorney is going to find out what your goal is. If your goal is to simply have the work taken down, then a DMCA or Digital Millennium Copyright Act takedown notice may be appropriate, assuming that you can properly claim copyright ownership.

But then the question, again, becomes:  Does it go back up? So a lot of times you’ll want to engage the person who posted the work.

There are options out there. Sometimes sending a cease and desist letter or a threat letter to someone will merely provoke them to further violate your copyright. So sometimes you need to come with more leverage than a cease and desist letter. Sometimes you have to file a copyright infringement lawsuit right out of the gate because it is just that serious.

My name is copyright law attorney Enrico Schaefer. You’ve been listening to Copyright Law Radio, and we’ll see you next time.

You’ve been listening to Copyright Law Radio, where copyright infringement, licensing, litigation, and news are always the topic of the day.  Whether you are a copyright attorney or a client, we are the number one resource for all your copyright questions.