What is a letter of demand for breach of moral rights?
The purpose of this letter of demand to someone who is in breach of your moral rights is to:
- • make the recipient aware that you are the creator of the work in question;
- outline your moral rights as the creator of the work;
- explain to the reader how they have infringed your moral rights;
- point out what they need to do to remedy the situation and specify a time limit within which that must happen;
- inform them that if an adequate response is not received within the 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 need to be able to prove that you are the creator of the work and show how the recipient has breached your moral rights;
- not to send a letter which is designed to look like a court document because this is illegal;
- clearly to identify your work and the way in which you allege your moral rights have been infringed (eg, by reference to a publication, title, website etc.).
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 Moral Rights Infringement.
[Date]
[Insert name]
[Insert address]
Dear Sir/Madam [or name of the person if known]
I am the creator of [insert name or description of work] (the Work).
As creator of the Work, I have the following moral rights under Australian law:
• the right to be attributed as creator of the Work;
• the right against false attribution; and
• the right of integrity, to object to derogatory treatment of my Work.
I have noticed that you have [insert way in which they have breached your moral rights. For example ‘you have failed to attribute me as the creator of the artwork which you have used in your exhibition on the 17th May 2007'].
The conduct described above constitutes an infringement of my moral right [‘to be attributed’, AND/OR ‘against false attribution’, AND/OR ‘of integrity’].
To rectify this infringement of my rights, I require that you undertake to:
[insert your demands as to how you want the reader to rectify the problem. Please see notes below.]
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 moral rights 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.
Following are a list of remedies which you may wish to include in paragraph 4 depending on your case and how your moral rights have been infringed:
- a printed correction acknowledging the omission of attribution and stating that you are the creator of the work;
- a demand that the reader cease infringing your rights immediately;
- a public apology be made for the infringement;
- damages for loss resulting from the infringement; and/or
- a demand that any false attribution of authorship, or derogatory treatment, of the work be removed or reversed.
Try and make your demands as clear as possible so that the reader understands what you want and there is no confusion.
There is a good chance that if someone is infringing your moral rights, they may also be infringing your copyright. The owner of copyright has exclusive rights under Australian law. If you believe that copyright has also been infringed you may wish to adapt your letter to address this and add demands to rectify this problem. For further information on copyright please go to the Australian Copyright Council’s website. Also see our sample Letter of Demand for breach of Copyright.
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 draw 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.