Moral rights infringement and letter of demand
Moral rights protect the personal relationship between a creator and their work even if the creator no longer owns the work, or the copyright in the work. If you receive legal advice that your moral rights have been infringed, it may be appropriate to send a letter of demand. This information sheet explains what a letter of demand is and contains a sample letter of demand. This information sheet should be read in conjunction with the information sheet on Moral rights.
In this information sheet:
- Moral rights
- What is a letter of demand for breach of moral rights?
- Things to know when sending a letter of demand
- Sample letter of demand for moral rights infringement
- Next Steps
This information sheet explains how to prepare a letter to send to a person or organisation you believe is infringing your moral rights in your work. The first step is to understand your moral rights and make a careful assessment as to whether they are being infringed. For further information on moral rights and what constitutes infringement see the Australian Copyright Council's information sheet on Moral Rights.
Once you have identified a breach of your moral rights, a letter of demand can be sent to the person responsible in order to:
- make the recipient aware that you are the creator of the work in question;
- outline your legal moral rights as the creator of the work;
- explain to the recipient how they have infringed your moral rights and the legal consequences;
- point out what they need to do to remedy the situation and specify a reasonable time limit within which that must happen;
- inform them that if an adequate response is not received within a certain time that you may exercise your right to commence legal proceedings against them.
The letter of demand can become an important legal document if the problem is not resolved. It 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.
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;
- to identify your work clearly 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 a letter of demand by registered post or fax so that later you can demonstrate that it was received. Don't forget to retain a copy for your records.
Dear Sir/Madam [or name of the person if known]
I am the creator of [insert name or description of work, for example "the documentary film entitled 'ABC for Artists' shown on free-to-air television in Australia in February 2008"] (the Work).
As creator of the Work, I have the following moral rights under Australian law:
a. the right to be attributed as creator of the Work;
b. the right against false attribution; and
c. the right of integrity, to prevent 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"].
[Attach an example if possible showing the breach - for example, a copy of an advertisement which shows the Work and does not attribute you as the artist.]
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.
Set out above is a sample letter of demand. You will see where you need to insert your relevant information; however you may also need to amend the letter to suit your needs. For example, if the recipient is not only infringing your moral rights but has also infringed your copyright, you may need to combine elements from the sample letter of demand on copyright – see Arts Law's information sheet on Copyright infringement and letter of demand.
The following are some changes you may need to make to suit your particular case.
- You will need to think about what 'remedies' or corrective actions to include in the fourth paragraph. These will depend on your particular work and how your moral rights have been infringed. They may include:
- a demand that the recipient cease infringing your rights immediately ;
- a public apology be made for the infringement;
- a printed correction acknowledging the failure to attribute you and stating that you are the creator of the work;
- changes to an exhibition or presentation or recall of a publication that is derogatory to your work and reputation;
- 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. 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 website. Also see Arts Law's information sheet on Copyright infringement and letter of demand.
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, the reply may agree only to some of your demands or may offer something different. If this is acceptable to you, you should draw write back confirming your agreement so that the varied offer becomes a binding contract. It may be necessary to draw up an agreement that outlines what the parties have agreed to do and that they will carry these obligations out. This should also be signed by both sides.
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.
Need more help?
If you have questions about any of the topics discussed above please contact Arts Law.
The information in this information sheet is general. It does not constitute, and should be not relied on as, legal advice. The Arts Law Centre of Australia (Arts Law) recommends seeking advice from a qualified lawyer on the legal issues affecting you before acting on any legal matter.
While Arts Law tries to ensure that the content of this information sheet is accurate, adequate or complete, it does not represent or warrant its accuracy, adequacy or completeness. Arts Law is not responsible for any loss suffered as a result of or in relation to the use of this information sheet. To the extent permitted by law, Arts Law excludes any liability, including any liability for negligence, for any loss, including indirect or consequential damages arising from or in relation to the use of this information sheet.
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