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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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