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Cease and Desist Letters   

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by Maria I. Cohen, Editor-in-Chief


 

What is a Cease and Desist letter?

What does a cease and desist letter look like?

How should I respond to a Cease and Desist letter?

Why do you suggest I remove the material, before contacting an attorney?

This is MY material! Why should I remove it?

But the U.S. Copyright Office says that as soon as I publish my work on the Internet that it is copyrighted.  I don't have proof.

I sent off a scathing response to those idiot lawyers!

I don't want to loose my work!

I created a site for my child who is a fan, not for profit.

 

 

What is a Cease and Desist letter?

A cease and desist letter is any correspondence (letter, e-mail, fax, etc), usually from an attorney, but it may come from anyone requesting that a person, company or entity, stop a given action. 

For example: A 14 year old fan of a popular television show creates a website in homage to their favorite series.  On this website the teen has  added pictures of the actors/actresses and a favorite clip from the television show, all of which were copied from the official television show website without authorization from the copyright holders of any of the material.  The teenagers' website becomes very popular and fans are going to that website rather than the official website for the show information.  Shortly thereafter, the teenager receives a cease and desist letter requesting to remove all material copyrighted by their clients, the show's creator's, producers, etc.

Translation:

Essentially a cease and desist letter is a request to stop an action.  In the above scenario, the action is the posting of material on a website that is not authorized by the copyright holder(s).  In this instance, the 14 year old fan, must remove all material that is owned by the copyright holder.  This does not mean that the teenager must completely remove (take-down) the site, including material they created (discussions about the show, pictures of the stars taken by the teenager, etc), ONLY that material that is copyrighted by other persons, company, or entity.  For further information on this scenario, please look at the above link for - "I created a site for my child who is a fan, not for profit."

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What does a cease and desist letter look like?

*(This letter is make-believe, basically because the only people I want to owe money to is the Department of Education.)

The firm of ABC & DEF

1234 Any Street

Any Town, USA 12345

Fan of a Television Show

1234 Any Street Lane

Makebelievetown, USA 56789

Dear Sir or Madam,

My name is Mr. Attorney.   I am a managing partner with the firm of ABC & DEF.  It has come to our attention that material (the likeness of characters, video and graphics) posted on AnyWebsite.com are the sole property of our client Mr. Plaintiff, who created and copyrighted said material.

The unauthorized copying and distribution via the internet of the aforementioned material, without the expressed permission of Mr. Plaintiff's constitutes copyright infringement in violation of Title 17 U.S. Code, Section 106(a) of the Copyright Act of 1976, and several recognized international copyright laws.

You are hereby to immediately CEASE AND DESIST the posting of our client's characters, likenesses and any other material copyrighted by Mr. Plaintiff.  You are to immediately inform myself once you have complied with the aforementioned request.

If you do not comply, I am authorized by my client to prosecute you to the furthest extent of the law.  The consequences of your lack of cooperation in this matter may result in civil fines, including but not limited to attorney fees, penalties and prosecution by the U.S. Attorney's office for willful violation of Copyright Laws.

Sincerely,

Mr. Attorney, managing partner

Copyright Protection Department

 

 

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How should I respond to a Cease and Desist letter?

Every Cease and Desist letter is different and should be responded to based on what the each addresses.  The following are suggestions which may be applied universally .

  • Immediately contact an attorney if you feel your rights, as a copyright owner are being usurped.

  • If you cannot get in contact with an attorney and are faced with immediate legal pressure, remove the material specified in the Cease and Desist letter (whenever possible), you can always repost it once the matter has been settled in your favor.

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Why do you suggest I remove the material, before contacting an attorney?

 

There are several advantages to removing the material first:

  • To stop further immediate legal action.

  • Allows for time to contact an attorney, who may advise you as to what options, if any, you may or may not have available.

In the "make-believe" Cease and Desist letter above the party requesting the removal of the material in question is the copyright owner of the material.  If that is indeed the case, if your story, website, publishing's, etc, contain, for example:

  • XENA: Warrior Princess™, STAR WARS™, STAR TREK™, X-FILES™, Buffy: The Vampire Slayer™, STARGATE: SG1™ characters, scripts, graphics, sound clips, etc - these all encompass materials which are trademarked and/or copyrighted by another party (legalese for person, company, entity...in other words not you).

Financial penalties for violation of anything that fits within the scope of "material" trademarked, or copyrighted by someone else may range from $200 - $150,000.00 in statutory damages (dependent on several variables including, but not limited to, willful infringement, damages, etc.), forfeiture and destruction of all "material"  and other penalties.

For further in formation visit the U.S. Copyright Office's page Copyright Law, Chapter 5, details Copyright Infringement and Remedies.

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This is MY material! Why should I remove it?

The Cease and Desist letter above involves material that is copyrighted by someone else, if on the other hand, you own the copyright to the material in question:

  • First Contact an attorney for legal advice.

  • Your attorney should reply to the Cease and Desist letter, not you.

  • He/She should advice you as to whether you should remove the material in question, or not from the website.

  • Make certain that you have proof of your ownership of the copyright to the material in question (documentation from the U.S. Copyright Office, a publishing date on your site, story or other documentation stating when you created the material, etc).

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But the U.S. Copyright Office says that as soon as I publish my work on the Internet it is copyrighted.  I don't have "traditional" proof.

  • As always, I suggest you contact an attorney first.

  • You are correct, under normal circumstances, there is no need to copyright your work with the U.S. Copyright Office. The act of publishing the material online automatically copyrights it.  On the other hand, this alone does not guarantee that someone may not falsely, or "in good faith" claim that they in fact are the true copyright holder(s) of the material in question.  For purposes of defending your copyright ownership in court, filing with the U.S. Copyright Office is the way to go.

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I sent off a scathing response to those idiot lawyers!

Didn't your mother ever tell you that "two wrongs don't make a right?" ;o) <a smiley face for those who cannot see the design.>

Although I empathize with wanting to write back a scathing response, it is not a good idea.  For the average attorney, a scathing response to a legal matter is equivalent to dancing in front of a bull wearing a slinky red dress and pumps...can you hear them say charge!?!

Most attorney's are accustomed to dealing with other attorney's, each in turn trained to "go for the jugular" if you will.  As far as most attorney's are concerned they are dealing with a company trying to make a profit off their client's hard work.  That is not to say that attorney's should not be more diligent - The party they are sending a Cease and Desist letter to could very well be a business infringing on their clients rights, just as easily as it could be a child who innocently created "anything" to show how big a fan they are.

In the end, a scathing response to an attorney may cause more of a headache than necessary. 

The best response may be any one of the suggestions provided above.  As always, contacting a licensed attorney, who specializes in the area of law in question (copyright, trademark, contract, etc) is always advisable.

If you really feel like venting, you can always speak your mind on the matter online by discussing it on any number of lists, website(s) or to family and/or friends.

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I don't want to loose my work!

  • If you have used material copyrighted and/or trademarked by someone other than yourself, then said material is not your work and you are in violation of copyright and/or trademark laws.  It is not only the correct thing to do, but also the legal thing to do in abiding by the copyright and/or trademark owner's wishes.

  • Remember, the only material you must remove is material that belongs to the copyright and/or trademark owner, not original material you created.  As such, don't think of it as loosing your work, think of it as an opportunity to create or continue on your original work.

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I created a site for my child who is a fan, not for profit.

The fact that a website is not for profit, be it that a child, or an adult fan of a television show, movie, etc created it, is not the issue.  The law merely recognizes that the material (images, video, sounds, etc) are the sole property of the copyright owner(s) and that you are using said material without that person's expressed permission.  The decision to allow a "fan" site to continue resides with whomever owns the trademark or the copyright to the material.

This does not mean you are without any alternatives.  There are legitimate means of showing your appreciation for a given television show, movie, book, whatever the case may be.  If for example you attend a convention and take a picture of the television star, you own the copyright to that picture and can post it on your website.  There are also materials which are non-copyrightable such as ideas and thoughts.  As such, commentaries or discussions about the television show, movie, book, etc are for the most part, material that you cannot be asked to remove from your website.

Lastly, there is nothing prohibiting your child from plastering their walls with their favorite artist, posters from their favorite television show, etc, (I know I certainly did as a teenager).  The legal threshold, is the posting and/or distributing material copyrighted by others without their expressed permission.  If you are able to get said permission, by all means, post away and enjoy!

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