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Copyright Cease & Desist Letters

Responding to Copyright Cease and Desist Letters

Copyright Cease & Desist Letters

One of the most common tactics used by copyright trolls is sending a cease and desist letter demanding that you stop using “their” intellectual property, as well as insisting that you owe them a substantial amount of money for any use that has already occurred. These letters are ostensibly supposed to put you on notice about a copyright violation, but they are often abused by individuals and companies who are simply looking to make a quick buck by threatening a frivolous copyright lawsuit. Responding to copyright cease and desist letters usually requires a solid understanding of intellectual property law, which is why it is imperative that you speak with an experienced California copyright lawyer before communicating with the other party in your copyright infringement case. An attorney can draft an effective response to the letter, as well as ensuring that you don’t make any damaging admissions that might be used against you later if the case goes to trial.

For more information about how to respond to copyright cease and desist letters, keep reading this blog.

What Does “Cease and Desist” Mean?

The legal definition of “cease and desist” is to prohibit a person, company, or other entity from starting and/or continuing a particular action. Basically, the sender of a cease and desist letter wants the recipient to stop doing something. In the context of a copyright infringement claim, the objective of a cease & desist letter is to get the alleged infringer to bring an end to their unlawful use of a copyrighted product or service. For example, if you are accused of publishing a photograph on your website or social media account without authorization to do so, the photograph’s copyright holder may send you a DMCA notice alleging that you violated the Digital Millennium Copyright Act and demanding that you take down the photo by a specified deadline. The letter might provide information about the sender’s copyright registration, as well as screenshots of the alleged unauthorized use by the recipient of the demand letter.

Most cease and desist letters include some kind of warning – either implied or explicit – of legal action if you fail to stop the conduct and/or refuse to compensate the original copyright holder for your use of their intellectual property. This last part is what a copyright troll is likely to focus on: getting paid a few thousand dollars. Moreover, since they are often represented by aggressive intellectual property attorneys, many copyright trolls are able to effectively use the threat of a lawsuit to get the recipient to settle the case quickly.

The Best Response to a Cease & Desist Letter Accusing You of Copyright Infringement

Since a cease and desist letter typically comes from an individual or company and it precedes litigation, its “demands” are more like “requests” that you are not legally required to respond to or comply with. Only when a court issues a cease and desist order that enjoins your use will you actually have to stop using the intellectual property. But a strong response to the cease & desist letter may be your safest course of action. The reality is that many copyright cease and desist letters are sent by copyright trolls attempting to intimidate and bully the recipient into paying the sender in order to avoid costly litigation. Even if you have a right to use the intellectual property, such as a fair use exception for non-commercial use of an image or video, the threat of legal action can make it difficult to fight back against a copyright troll with vast financial resources. That’s why your initial response to the cease and desist letter is so important: it may be your best chance to stop the IP litigation dead in its tracks and avoid the need for costly legal action.

The best answer to a cease and desist letter is usually one that convinces the other party to drop their claim. You may want to point out any facts favorable to your case, including any copyright exceptions that justify your IP use, statute of limitations issues, or the existence of a licensing agreement that allows for your use of the original work. Additionally, having your response drafted by an attorney will send a powerful message to the other party that you are not going to simply back down and pay them. If you respond to the letter on your own, and without the assistance of a qualified lawyer, you might not be taken seriously.

IP Licensing Agreements

In some copyright cases, the sender of a cease and desist letter is looking to enter into a licensing agreement where the recipient can avoid litigation by agreeing to pay a fee to the copyright owner for licensed use of the intellectual property. Depending on the circumstances, an intellectual property attorney may be able to assist with those licensing negotiations so that you can minimize liability and still retain your ability to use the image, video, or other type of intellectual property at issue.

Contact the Los Angeles Copyright Attorneys at Tauler Smith LLP

Whether you’ve received a cease and desist letter alleging copyright infringement, trademark infringement, patent infringement, or any other type of intellectual property violation, you need to speak with a qualified attorney immediately. The Los Angeles copyright lawyers at Tauler Smith LLP understand the nuances of IP law, and we have experience dealing with copyright trolls. We are prepared to help you draft a strong response to the copyright cease and desist letter.

Call the Tauler Smith legal team today at 310-590-3927 or submit the online contact form.

Best Copyright Infringement Defenses

5 Best Defenses Against Copyright Infringement Claims

Best Copyright Infringement Defenses

Original creative works can provide valuable revenue streams to their authors. That’s one reason that copyright can be used to protect original works in certain tangible mediums (e.g., movies, books, photographs, and computer software) against unauthorized use. Unfortunately, copyright trolls often attempt to take advantage of the law by pressuring others into cash settlements. When this happens, the party on the receiving end of a copyright demand letter will need to respond immediately – or risk a costly lawsuit. The experienced Los Angeles copyright lawyers at Tauler Smith LLP can help you mount a strong and vigorous copyright defense.

To learn more about the 5 best defenses against copyright infringement claims, keep reading this blog.

Responding to DMCA Notices from Copyright Trolls

A lot of copyright infringement claims are brought by copyright trolls. These are people who strategically sue individuals and businesses with the goal of pressuring the defendant into quickly settling the case in order to avoid expensive litigation. For example, a copyright troll might send a DMCA notice to a website owner or social media influencer alleging that they violated the Digital Millennium Copyright Act by publishing an unauthorized reproduction of an image, video, or text.

Whether it’s a copyright troll, or perhaps someone with more merit bringing a copyright or other type of intellectual property claim against you, most claims will start with a copyright infringement letter or takedown notice. How you respond to the initial claim will likely determine the next steps, which could include negotiating a settlement with the other party or contesting the copyright claim in federal court.

What Are the Most Common Defenses Available in Copyright Infringement Cases?

If the case does go beyond settlement negotiations and eventually reaches the litigation stage, it may be necessary to raise a strong defense at trial. These are some of the most common defenses available in copyright infringement disputes:

Defense #1: There is no substantial similarity between the original work and the new work.

One of the main tests used by courts to determine whether copyright infringement has occurred is the substantial similarity test. A work can only be found to have exploited another work’s copyright if both works are “substantially similar.” This means that, despite any superficial similarities, the two works are so strikingly similar that the second work could only have been copied from the first work.

Defense #2: Use of the work was licensed.

Even if you did not create the original work in question, you may still have a right to use, distribute, reproduce, or perform that work if you secured a copyright licensing agreement. Depending on the terms of the IP transfer, the licensed use might not have constituted an infringement of the copyright.

Defense #3: The fair use doctrine applies.

The Copyright Law of the United States explicitly provides for exceptions when copyrighted material is being used for certain purposes, such as news reporting, research, scholarship, commentary, and criticism. Courts use a balancing test to determine whether a particular use of the work constitutes a “fair use”:

  1. The purpose and character of the use, including whether the use is for commercial purposes.
  2. The nature of the copyrighted work, such as whether the work has already been in the public domain or whether there is a public interest in ensuring that the work is available to everyone.
  3. The amount or substantiality of the portion used, such as when a website quotes a few sentences from a much longer publication.
  4. The effect of the particular use on the work’s value.

Judges typically determine whether a specific use constitutes “fair use” by looking closely at the precise facts and circumstances of the individual case. The reality is that two similar uses of an identical work could yield entirely different results in court. That’s why it is crucial for anyone looking to raise this defense in a copyright infringement lawsuit to have an experienced copyright attorney on their side.

Defense #4: The plaintiff does not own the copyright.

In order to sue for damages, the copyright troll must be the “owner” or “exclusive licensee” of the copyrighted work. Often, copyright trolls send letters demanding money (and sometimes file lawsuits) when they are not the owner or the exclusive licensee. Tauler Smith LLP has won copyright cases on this basis, and the knowledgeable L.A. copyright lawyers at Tauler Smith can get to the bottom of who owns the images in question.

Defense #5: The statute of limitations has expired.

The statute of limitations in most copyright infringement claims is three (3) years. However, there is some question as to when the clock starts ticking on the statute of limitations. For instance, courts have held that the statute of limitations restarts after each new violation, meaning that a copyright owner could delay filing suit as long as they are only pursuing damages from the last three (3) years. Additionally, most courts have ruled that a copyright owner must first discover the violation before the statute of limitations begins to run.

Contact the Los Angeles Copyright Lawyers at Tauler Smith LLP Today

The damages in a copyright infringement lawsuit could be substantial, which is why you need to act immediately when you are first notified of an alleged violation. Your first step should be to speak with one of the Los Angeles copyright lawyers at Tauler Smith LLP. Our legal team has experience responding to copyright claims on behalf of our clients and protecting them against copyright trolls.

If you’ve received a copyright demand letter, call us today at 310-590-3927. You can also fill out the contact form to schedule a consultation.

DMCA Takedown Notices

Using Section 512(f) to Fight DMCA Takedown Notices

DMCA Takedown NoticesCopyright trolls have become a serious problem in recent years, with more and more people using outdated copyright laws to take advantage of an internet and social media landscape that is constantly changing. Using a decades-old law that pre-dated YouTube (let alone hundreds of thousands of fan sites on Instagram), the Digital Millennium Copyright Act (DMCA) allows anyone to send automated notices to social media sites claiming that they own copyrights on content used by certain accounts on the sites. The objective of malicious DMCA trolling is typically to shut down the victim’s social media account. This is most commonly done because of personal jealousy, animosity, and/or retribution. Unfortunately, social media sites and their users are often powerless to do anything about it.

Could there be a new tool in the arsenal of copyright lawyers who look to aggressively defend individuals against fraudulent DMCA takedown notices? Keep reading this blog to find out.

What Is Section 512(f) of the DMCA?

The drafters of the DMCA statute wanted to prevent abuse of the system, which is meant to protect legitimate copyrights. So, they included a subsection called “Section 512(f),” which allows victims to sue if they are served with a DMCA takedown notice that is fraudulent.

Until recently, however, this provision in the law has not been put to good use by copyright defense lawyers. Since the DMCA was enacted in 1998, Section 512(f) has been only a “weak counterpressure on sending DMCA notices,” according to many commentators. In fact, one leading writer stated bluntly, “Section 512(f) of the DMCA is effectively dead.”

Hope for the Future of Section 512(f) as a Tool to Fight Copyright Trolls

Despite the long history of Section 512(f) being largely ineffective at stopping fraudulent DMCA takedown notices from copyright trolls, a recent order from the Central District Court of California has breathed new life into Section 512(f) and provided some measure of hope that victims of DMCA fraud can make dishonest people pay for their misdeeds.

Contact the California Copyright Defense Lawyers at Tauler Smith LLC Today

Have you been served with a DMCA takedown notice? The Los Angeles copyright defense lawyers at Tauler Smith LLC can help you. Contact us anytime by calling 310-590-3927, or by filling out the contact form.