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July 29, 2021

Lawyer

How to Respond to a Copyright Infringement Notice

Copyright infringement is a serious matter and can cost you anywhere from $150,000 to $1,000,000 per instance if you are liable. If you receive a cease & desist letter from an attorney, author, graphic designer, musician, or ISP provider, do not dismiss the letter and think that simply taking down the copyrighted material from your website will be enough.

By ignoring the situation, you open the door to potential statutory damages, as the plaintiff spends more resources on trying to prove they own the material and try to get you to remove it.

Copyright owners can file a takedown request through the Digital Millennium Copyright Act (DMCA). This 1998 copyright law criminalizes the production and dissemination of technology, devices, or services intent on circumventing the measures put in place to control the access of copyrighted material.

If you have a cease & desist letter claiming that you violate the rules of the DMCA, contact a copyright lawyer in Toronto to discuss your next plan of action.

What Is Copyright Infringement?

Copyright infringement is when someone takes an image, movie clip, sound file, video, or art and displays it without permission from the owner. Anything that a person creates individually or in a team can file for copyright registration to protect the material against someone claiming it as their own and making a profit.

You can file a copyright on:

  • Sound recording/music
  • Screenplays
  • Novels/short stories
  • Graphic art
  • Sculptures
  • Computer programs
  • Compilation pieces
  • Architectural works

The technology we have today makes it easy for someone to copy a song or image from the internet with just a click of the mouse. Some people even go as far as claiming the work is their own to try and earn money or build up their career.

Some people think if they copy an image or song from the internet and change it, such as only using part of a song or changing the color or background of an image, they are not infringing on the copyright. Modifying copyrighted material is illegal, and you may face significant fees if you do this.

Other forms of copyright infringement include:

  • Using copyrighted material on your website without permission or acknowledging the original owner of the material
  • Using parts of copywritten songs
  • Clothing with slogans or images that are copyrighted
  • Directly copying from another literary work (plagiarism)
  • Sharing feature-length films, TV shows, and music

Some website owners try to avoid using copyrighted material by putting a “No copyright infringement intended” notice on their page, but this will not hold up in a court of law.

Steps to Take When You Receive a Copyright Infringement Notice

First off, don’t panic. And do not call the copyright holder or their attorney until you have more information. Remember that anything discussed with the copyright holder or their attorney can be evidence against you. Your first step is to speak with a Toronto copyright lawyer and examine all of your options.

Do Not Ignore the Copyright Infringement Letter

By ignoring the letter, you open yourself up to be liable for a significant amount of money. The more time you take to respond, the more money the copyright holder can claim if they have to spend more time and money getting you to remove the material from your site.

Copyright infringement fees, including jail time, can vary:

  • Statutory damages can be between $750 – $30,000 per infringement.
  • Civil penalties per instance can go up to $150,000
  • Damages in the amount of any profit you earn from the copyrighted material
  • Criminal penalties can go up to $250,000 per offense with up to five years of jail time

Do Not Speak to the Copyright Holder or Their Attorney

Speaking with the owner of the material or their lawyer can give them more information to use against you. In the heat of the moment, you may say something and unwittingly admit you are at fault or admit that you knew that material belongs to someone else.

Your first call should be to a copyright lawyer specializing in copyright law with a successful track record of defending their clients.

Cease & Desist Letter

If you receive a cease & desist letter, don’t panic and think you will be liable for tens of thousands of dollars. The majority of cease & desist letters simply ask that you remove the material and pay a minimal licensing fee. This fee would be what they will typically receive when you go through legal means of using the material.

If you do decide to respond to the letter, make sure to include the following:

  • The claim against you
  • Validity of the owner’s legal claim
  • Any legal defense options you have
  • Details about your removal of the material from your site, including removal date
  • Counter-settlement if they are asking for any monetary compensation

If you are unsure about how to respond to a cease & desist letter, contact a copyright lawyer in Toronto about how to proceed.

Litigation

The high cost of litigation, which averages around six figures, reduces the risk of some authors and artists pushing toward litigation. The high risk of not winning is not worth the potential financial gain. Sometimes having your attorney reach out to the copyright holder is enough to get them to settle on a lower amount without dealing with a court lawyer and all of the legal fees.

Preparing Yourself for Copyright Infringement

When you first receive a notice about copyright infringement, you want to ask yourself the following questions:

  • Where did you get the material?
  • Do you have a valid license for the material?
  • Is it a Common Creative license?
  • Was the license purchased initially under a different name, employee, or independent contractor?

If you do not know the answer to these questions, that is OK. A copyright lawyer can help review your infringement activity and prepare for possible litigation if they do not want to settle out of court.

Common Creative License

A Common Creative license is a public copyright license where the owner allows others to use their material. Aspiring artists, photographers, and musicians will do this to build their brand. Sometimes the copyright owner does not understand the copyright registration type and inadvertently sets it to a common creative license.

How a Copyright Lawyer Can Help You

Copyright infringement is a serious issue and can quickly become more costly than it has to be. Finding the right attorney in Toronto to help represent you if someone claims you stole their copyrighted material can save you money and possible jail time.

An attorney with experience handling copyright infringement cases will look into whether or not the copyright holder is within their rights to file a claim. They will make sure that the license is not a Common Creative license and whether or not the owner is still within the statutory period for filing. The statutory period is only three years, and the copyright holder may not be aware that it is no longer under copyright registration.

Sometimes infringement activity is accidental. You may not realize the image has a copyright. If you remove the image from your site and receive a cease & desist letter, an attorney can help settle for a lower amount as the infringement is not intentional.

If you have a cease & desist letter and do not know your next step, reach out to a professional copyright lawyer who can help you understand your rights and represent you if your case goes to litigation.

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