Receiving a letter of copyright infringement can be scary. If you have received a letter of copyright infringement, here are a few recommendations on how to handle the copyright infringement allegations.
If you have received a letter of copyright infringement, contact one of our expert copyright infringement lawyers today at 855-473-8474.
A copyright infringement letter is a formal legal demand. It is not junk mail, and it should not be ignored. But it is also not a court judgment — receiving a demand letter does not mean you have been found liable for anything. The letter represents the copyright owner’s assertion of infringement, and you have the right to respond and to raise defenses.
The first thing to understand is what the letter is actually claiming. Copyright infringement letters come in different forms: cease and desist letters sent by attorneys, DMCA takedown notices sent directly or through a platform, settlement demand letters from copyright enforcement organizations, and pre-litigation demand letters that include specific damages calculations. Each type of letter calls for a different response strategy.
Not every piece of content is protectable by copyright. Copyright protects original works of authorship fixed in a tangible medium. 17 U.S.C. § 102(b) explicitly excludes protection for ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries. Works that consist entirely of common information — such as standard calendars, height and weight charts, or pure factual compilations without creative selection or arrangement — may not qualify for protection.
Additionally, copyright protection has a limited term. For works created after January 1, 1978, copyright lasts for the life of the author plus 70 years. Works created before 1926 are in the public domain. Works published between 1926 and 1977 require a more detailed analysis of registration and renewal history to determine whether they remain protected.
If the content allegedly infringed is in the public domain, not original enough to qualify for copyright protection, or if the claimant does not actually own the copyright (for example, a work-made-for-hire situation where the employer — not the individual claiming infringement — owns the copyright), you have a complete defense.
Fair use is a statutory defense under 17 U.S.C. § 107 that permits limited use of copyrighted material without authorization. Courts evaluate four factors: (1) the purpose and character of the use, including whether it is commercial or nonprofit educational; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use on the potential market for the copyrighted work.
Fair use is not a bright-line rule. It is a case-by-case analysis, and the outcomes are often unpredictable. Claims of fair use that seem obvious to the person making them are frequently rejected by courts. Before asserting fair use as a defense in response to a copyright infringement letter, consult with a copyright attorney who can evaluate the specific facts under the applicable circuit’s case law.
If the allegedly infringing content was uploaded by a third party to your website — a user comment, a forum post, an image submitted by a user — you may qualify for the DMCA safe harbor protection under 17 U.S.C. § 512. The safe harbor shields website operators from copyright infringement liability for user-uploaded content provided the operator: (1) has no actual knowledge of the infringement and is not aware of facts or circumstances from which infringement is apparent; (2) upon obtaining knowledge, acts expeditiously to remove the content; and (3) does not receive a financial benefit directly attributable to the infringement where the operator has the right and ability to control the infringing activity.
The safe harbor is only available if the operator has designated a DMCA agent with the Copyright Office and has a policy addressing repeat infringers. If you have received a DMCA takedown notice, your response options are removal of the content or filing a counter-notice under 17 U.S.C. § 512(g) if you believe the takedown was improper.
Your response to a copyright infringement demand letter can significantly affect the trajectory of any subsequent dispute. A response that admits infringement, underestimates the copyright owner’s legal position, or makes factual concessions that could be used against you in litigation can be harmful. Conversely, a response that is aggressively confrontational without factual and legal basis can provoke a lawsuit that could have been avoided.
An experienced copyright attorney will: (1) evaluate the copyright owner’s claim and identify its weaknesses; (2) assess your defenses and their strengths; (3) evaluate the risk exposure — including the maximum statutory damages if the copyright was registered before the infringement; and (4) draft a response that preserves your legal options while opening a path to resolution.
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.
The severity of potential copyright infringement damages is one reason that copyright cease and desist letters demand prompt, careful attention. Under 17 U.S.C. § 504, a copyright owner may elect to recover either actual damages (plus disgorgement of the infringer’s profits) or statutory damages. Statutory damages, which require pre-infringement registration, range from $750 to $30,000 per work infringed. For willful infringement — which a court will find if you continued the infringing activity after receiving the cease and desist letter — the maximum increases to $150,000 per work.
In cases involving multiple works — a website that uses five unlicensed photographs, for example — the damages multiply per work. Attorney’s fees are also available to the prevailing party in cases involving registered copyrights. This is why even cease and desist letters that seem overreaching deserve serious legal analysis: the potential exposure is significant, and ignoring the letter establishes the willfulness that triggers maximum damages.
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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