So there you are, going about your life, creating interesting works (let’s say you’re a webmaster) ... and one day you receive a letter. It’s not fan mail, it’s a cease and desist letter. It probably goes something like this:
Dear Sir or Madam:
It has come to our attention that you are operating a web site found at http://www.yoursite.com. Your web site contains the following copyrighted images belonging to our client [name of client]: [list of images]. As you neither asked for nor received permission to use these images, nor to make or distribute copies, including electronic copies, of same, we believe you have willfully infringed our client’s rights under 17 U.S.C. Section 101 et seq. and could be liable for statutory damages as high as $150,000 as set forth in Section 504(c)(2) therein. We hereby demand that you immediately cease and desist use of these images.
Based upon the foregoing, we hereby demand that your confirm to us in writing within ten (10) days of receipt of this letter that: (i) you have removed the aforementioned infringing images from your site; and (ii) you will refrain from posting any similar infringing material on the Internet or any other online service in the future. If you do not comply with our request to remove the infringing images from the web site within ten (10) days from the date of this letter, you will leave us with no other choice but to pursue all available legal and equitable remedies against you.
Yikes. Now what?
Take a deep breath. Getting a cease and desist letter doesn’t necessarily mean you’re going to be sued, and it certainly doesn’t mean you have been. The letter is telling you that someone believes they own the copyright in items you have used.
But listen, the fact that someone sends you a scary letter filled with legal language doesn’t mean they’re correct about their rights and your wrongs. They might be, of course, but they might not be, too. Keep that in mind.
Here’s what you’ve gotta do.
Respond right away. Let the sender know you got the letter and you’re looking into the situation. There’s usually a time limit in these letters, so don’t just put the letter in a drawer and hope the issue will go away. Let them know you’re looking into it and then do it.
Read the letter carefully. What, exactly, are you accused of doing? What does the sender want? Do they just want you to stop using the work? Do they want money (as in a license fee)?
Think. You should have some sense of whether your use is infringing or not. For example, did you copy someone’s stuff without permission? Do you believe your use is a fair use? Did you investigate the work’s copyright status before you used it, and as a result do you believe the work is in the public domain?
Consult reliable resources. If you’re dealing with a cease and desist letter, one of the best places to get more information is The Chilling Effects Clearinghouse. After that, if you have questions you should contact an attorney.
Okay now, what shouldn’t you do?
You’ve got options here. You can do what the sender wants, you can contact them to discuss possible solutions, you can send a letter back telling them to get lost, or you can ignore them. Ignoring them really isn’t your best option, unless you’re very sure you’re within your rights.
To illustrate how ignoring such letters can backfire, here’s a little story. In 2006 Sean “Diddy” Combs’ Bad Boy Entertainment LLC and Universal Records lost a copyright infringement case brought by Bridegport Music. (The case involved a 6-second sample, but that’s not why I’m telling you this.)
The jury awarded $3.5 million in punitive damages, $1 million of which was against Bad Boy LLC. Why such a large amount? Because, as reported by Billboard Magazine (April 8, 2006), Bad Boy never responded to Bridgeport’s cease and desist letters. Let that be a lesson to you: don’t ignore a cease and desist letter. If you do, you’ll probably look like a “bad boy” to the judge or the jury. That can cost you.