What is a letter of demand for breach of copyright?
The purpose of a letter of demand to someone who infringes your copyright rights is to:
- make the person aware that you are the creator and copyright owner of the work;
- outline your exclusive rights as the copyright owner;
- explain how the recipient has infringed these rights;
- outline how you would like to remedy the situation;
- advise that if an adequate response is not received in a specified amount of time the writer has the right to commence legal proceedings; and
- provide a document which can be used as evidence in any court proceedings to prove that you informed the recipient of your rights and gave them an opportunity to rectify the breach.
Things to know when sending a letter of demand.
When sending a letter of demand you should be careful:
- not to make threats about infringement which cannot be substantiated. You should be prepared to take matter to court which means you need to be able to prove that you are the copyright owner and that the recipient has infringed your copyright. Therefore you will need to show that they had access to your work and that they copied it;
- not to send a letter which is designed to look like a court document because this is illegal;
- provide a document which can be used as evidence in any court proceedings to prove that you informed the recipient of your rights and gave them an opportunity to rectify the breach.
It is advisable to send the letter of demand by registered post or fax to confirm receipt and don't forget to retain a copy for your records.
Sample letter of demand for Copyright Infringement.
[Date]
[Insert name]
[Insert address]
Dear Sir/Madam [or name of the person if known]
I am the owner of copyright in [insert name or description of work] (the Work).
As copyright owner, I have a number of exclusive rights under the Copyright Act 1968 (Cth). These exclusive rights include the right to reproduce the Work, and to publish and communicate the Work to the public (including by way of sale, broadcast or putting the Work online). It is an infringement of copyright to do any of the acts comprised in the copyright in relation to the whole or a substantial part of the Work, or to authorise such an act, without the permission or licence of the copyright owner.
It has come to my attention that you have [insert way in which they have breached your copyright. If applicable also insert dates. For example: “photographed my work and published it in your online publication dated the 10th of April 2007”]. As you have failed to seek permission or a licence from me to do so, your conduct described above constitutes infringement of my rights of copyright.
To rectify this infringement of my rights, I require that you undertake to:
1. immediately stop infringing my copyright;
2. provide me with [insert an amount of money] for the use of my work to date;
3. [OPTIONAL- Enter into a licence with me for future use of my work]; and
4. [IF APPLICABLE- Deliver all originals or copies of my work to me including
any infringing copies]
You can confirm your acceptance of these undertakings by signing and dating a copy of this letter and returning it to me within 21 days.
You are now on notice as to my copyright in respect of the Work. If I do not receive an adequate response within 21 days of this letter, I will take such action as I may be advised in order to protect my rights including, without limitation, legal action for injunctive relief or to recover damages without further notice to you.
I otherwise reserve all my rights.
Yours [faithfully/sincerely]
[signature]
AGREED:
_____________________
(signature)
_____________________
(date)
Instructions and Notes.
The above is a sample letter. You will see where you need to insert your relevant information however you may also need to amend the letter to suit your needs. The following are some changes you may need to make to suit your particular case.
- In paragraph two you may need to change the list of exclusive rights depending on the nature of your work and of the breach. For example your work may be a piece of music or a play. In this case your exclusive rights include the right to “perform the work in public”. (For a full list of the exclusive rights see the information sheets provided by the Australian Copyright Council www.copyright.org.au).
- The fourth paragraph which lists your demands on the reader may also need to be changed. For example if the infringer is also selling reproductions of your work you will also want to demand that they cease to do so and that the reproductions be destroyed.
- There is also a good chance that the copyright infringer is also infringing your ‘Moral Rights’. The creator of a work has certain moral rights under Australian law which include; the right to be attributed as the creator of the work, the right against false attribution and the right to object to any derogatory treatment of their work. If you believe that your moral rights have also been infringed you may wish to adapt your letter to address this and add demands to rectify this problem. For further information please see our information sheet on Moral Rights as well as our sample Letter of Demand for breach of Moral Rights.
- Try and make your demands as clear as possible so that the reader understands what you want and there is no confusion.
Next Steps
If you receive a reply:
If the recipient signs and returns a copy of the letter, he or she is bound by contract to comply with the undertakings. You should follow up to make sure they have done so. Alternatively, if the reply agrees to some of your demands or offers something different AND this is acceptable to you, you should write back confirming the agreement. It may be necessary to draw up an agreement that outlines what they have agreed to do and that they will carry these obligations out. This should also be signed by both sides.
If you do not receive a reply or receive a reply rejecting your allegations:
It is advisable that you seek legal advice from a solicitor at the Arts Law Centre or elsewhere about the strength of your claim. The solicitor may send another letter of demand for you. Finally you may need to commence court proceedings.
More information on copyright
Australian Copyright Council
Publications on copyright are available from their website www.copyright.org.au or telephone (02) 9318 178