Have you received a cease and desist copyright letter? If so, it can be a confusing and frustrating experience. Here are some thoughts to help you deal with a cease and desist copyright letter:
1. Identify the allegedly infringing content and its location. Is the infringing content hosted on your servers or on the servers of a third party? Did you supply the copyrighted content or was it contributed by a third party? Identifying the allegedly infringing content will help to identify your legal defenses.
2. Identify whether the allegedly infringing content is licensed. If the content is properly licensed, then there is no copyright infringement. If it is not, proceed to step three.
3. Identify defenses. Defenses, such as fair use or parody, may apply to the use of third party content in certain fact-specific situations. Additionally, other defenses may apply, such as laches or estoppel. Most of these defenses are fact-dependent, so it is especially important to contact a copyright attorney to assess the efficacy of these defenses.
4. Decide whether the allegedly infringing content should be removed. If the content is unlicensed and not subject to any defenses, removing it will likely mitigate your damages.
5. Hire a copyright lawyer to draft a response letter. Though you should always speak with a copyright attorney when you receive a cease and desist copyright letter, at this stage your copyright attorney should identify both legal and non-legal leverage and draft a response letter. The purpose of a well crafted response letter is to avoid a copyright infringement lawsuit. Since copyright infringement carries penalties of up to $150,000 per work infringed plus costs and attorneys fees, it is important to correctly handle this step.
If you have received a cease and desist copyright letter, contact the copyright lawyers at Revision Legal at 855-473-8474 or complete the contact form to the right.
So far this article has addressed the recipient’s perspective. But cease and desist letters are a tool for copyright owners as well. When you discover that someone is using your copyrighted work without authorization, a cease and desist letter is typically the first step in enforcement. Here is what copyright owners need to know about when and how to use cease and desist letters effectively.
Before sending a cease and desist letter, verify that your copyright is registered with the U.S. Copyright Office. Registration is required before you can file a lawsuit for copyright infringement in federal court under 17 U.S.C. § 411. If your work is not registered, your cease and desist letter is a demand without a credible threat of litigation behind it. For pre-infringement registered works, the letter carries the implicit threat of statutory damages up to $150,000 per work plus attorney’s fees — leverage that makes infringers take settlement seriously.
Before sending a cease and desist letter, document the infringement thoroughly: screenshot the infringing content with the URL and date visible; capture metadata if available; identify whether the infringement is on a website, social media platform, commercial product, or other medium; and determine the scope of the infringing use — how long has the content been used, is it being used commercially, how widely is it distributed.
This documentation serves multiple purposes: it establishes what the infringement consisted of at the time the cease and desist letter was sent (relevant if the infringer removes the content after receiving the letter and denies the infringement); it helps your attorney assess damages; and it provides evidence of willfulness — relevant to the maximum statutory damages figure — because the infringer received actual notice of the infringement from your letter.
A well-drafted copyright cease and desist letter should: (1) clearly identify the copyrighted work and the copyright owner; (2) specifically identify the infringing use, including the URL or other location; (3) provide the copyright registration number if registered; (4) demand cessation of the infringing use by a specified deadline; (5) demand an accounting of the infringing use, including the revenue generated; (6) preserve all claims for damages, including statutory damages; and (7) request a response by a specified date.
The tone of the letter matters. An aggressive, unreasonable letter can provoke the recipient into filing a declaratory judgment lawsuit seeking a ruling that the copyright is invalid or that the use is fair use — a lawsuit that shifts control of the litigation to the infringer. A measured, professional letter that states your position clearly and opens the door to resolution is more likely to achieve a satisfactory outcome without litigation.
If the recipient ignores your cease and desist letter, continues the infringing activity, or responds in bad faith, escalation may be appropriate. For web-based infringement, a DMCA takedown notice to the infringing website’s hosting provider can result in rapid removal of the content even before a lawsuit is filed. For platforms like YouTube, Instagram, or Facebook, the platform’s brand protection programs provide a mechanism for reporting infringement directly.
If these measures are insufficient, federal court litigation under 17 U.S.C. § 501 provides the full range of legal remedies: injunctive relief, actual damages, disgorgement of the infringer’s profits, statutory damages (for registered works), and attorney’s fees. The decision to litigate should be made with a clear-eyed assessment of the cost of litigation relative to the damages at stake and the likelihood of a favorable outcome.
If you have questions about copyright law or copyright infringement, contact the copyright attorneys at Revision Legal at 855-473-8474 or complete our contact form.
One of the most common questions we receive from clients who have received copyright cease and desist letters is: should I remove the content right away, before consulting an attorney? The answer depends on the circumstances. If the content is clearly infringing — you used a photograph without a license and have no credible fair use defense — removing it promptly demonstrates good faith and may limit your damages exposure. Courts and opposing counsel take note of whether a defendant took reasonable steps to mitigate harm after receiving notice.
However, removing the content before consulting an attorney can also be strategically disadvantageous in some circumstances. If the content was licensed and you remove it in response to a demand letter, you may inadvertently create the appearance that you agreed the use was unauthorized. If the content is stored on servers you do not control, the appropriate procedure is to notify the hosting party, not to take unilateral action. And if the content is evidence in potential litigation, removing it could create document preservation concerns.
The safest approach is to consult with a copyright attorney before taking any action in response to a cease and desist letter. An attorney can evaluate the claim, assess your defenses, advise on whether removal is the right step, and ensure that any action you take is strategically sound and legally appropriate.
Contact the copyright attorneys at Revision Legal with questions about copyright law or infringement. Call 855-473-8474 or complete our contact form.
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