Copyright and moral right infringement by media letter of demand (Visual arts & Photo)
This information sheet explains to visual artists and photographers how to prepare a letter of demand to send to a person or organisation in the media (e.g. a newspaper) who you believe is infringing your copyright and/or moral rights, whether in print or online. The first step is to understand your copyright and moral rights and make a careful assessment as to whether they are being infringed.
In this information sheet:
- What is a letter of demand for breach of copyright and/or moral rights?
- Things to know when sending a letter of demand
- Sample letter of demand for visual arts and photography print/online copyright and/or moral rights infringement
- INSTRUCTIONS AND NOTES
- NEXT STEPS
Once you have identified a breach of your copyright and/or moral rights, a letter of demand can be sent to the person or organisation responsible in order to:
- make the recipient aware that you hold the copyright and/or the moral rights in the work in question;
- outline your exclusive rights as the copyright owner and/or your legal moral rights as the creator of the work;
- explain how the recipient has infringed your copyright and/or 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 copyright and/or 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 copyright and/or moral rights have been infringed (e.g. 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.
Sample letter of demand for visual arts and photography print/online copyright and/or moral rights infringement
Dear Sir/Madam [or name of the person if known]
I am the owner of copyright in [AND/OR the creator of] [insert name or description of artwork or photograph] (the Work).
[Delete this paragraph is you are NOT the copyright owner] 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 my permission or licence.
[Delete this paragraph if your moral rights have NOT been infringed e.g. you were attributed for your work, but they did not seek your permission as copyright owner to reproduce your work in print or online] As creator of the Work, I retain moral rights under Australian law, being:
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.
It is an infringement of my moral rights if I am not attributed as the creator of the Work, someone else is attributed as the creator of my Work, or my Work is treated in a derogatory manner without my permission.
It has come to my attention that you have [insert way in which they have breached your copyright and/or moral rights. If applicable also insert dates. For example: "photographed my artwork/reproduced my photograph and published it without permission AND/OR failed to attribute me as the creator of the artwork/photograph in your online publication dated 17 January 2013"]. [Attach an example if possible showing the breach - for example, a copy of an article or advertisement which shows the Work you have not given permission to reproduce AND/OR does not attribute you as the creator.]
The conduct described above constitutes infringement of my copyright AND/OR 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:
1. immediately stop infringing my copyright AND/OR moral rights;
2. [insert any further demands as to how you want the person/organisation to rectify the problem which might include:
if you are the copyright owner:
o provision for an amount of money for the use of your work to date;
o entering into a license with the infringer for future use of your work;
o delivery of all copies of your work to you including any infringing copies(if applicable); and/or
o 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.
If you hold moral rights:
o a public apology be made for the infringement;
o a printed correction acknowledging the failure to attribute you and stating that you are the creator of the work;
o recall of a publication that is derogatory to your work and reputation;
o damages for loss resulting from the infringement; and/or
o a demand that any false attribution of authorship, or derogatory treatment, of the work be removed or reversed. ]
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 [AND/OR 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.
(signature of authorised person)
(name of authorised person)
(company (if applicable))
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.
The following are some changes you may need to make to suit your particular case.
- The sixth paragraph which lists your demands may need to be changed depending on the specific circumstances of the infringing conduct and whether the infringement concerns breaches of your copyright, moral rights or both.
- Try and make your demands as clear as possible so that the reader understands what you want and there is no confusion.
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 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.
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