21 March
Photo by Umberto on Unsplash

What should you do if you get a copyright letter of demand?

At Arts Law, we frequently advise artists and arts organisations who have received letters alleging that they have infringed copyright. These letters can be called ‘letters of demand’ or ‘cease and desist letters’. 

A letter of demand tells you about the copyright owner’s claim. It should tell you about (or put you ‘on notice’ of) what the copyright owner thinks you have done wrong and what they would like you to do to fix it. A letter of demand is usually sent to try to resolve the issue before the copyright owner decides to take other steps (like taking you to court). 

Arts Law has seen a recent increase in artists receiving letters from companies acting as copyright enforcement agents, such as PicRights. Receiving these type of letters can be stressful for artists, and Arts Law are here to help. 

What is copyright infringement?  

Copyright protects materials such as artwork, photographs, music, literary works (articles, books, poems etc), films and sound recording.  If you want to do certain things with an artwork (such as reproduce the whole or a substantial part of the work or make it available online), you must have the permission of the copyright owner.  These are called the ‘exclusive rights’ of the copyright owner.  You can read more about copyright and copyright infringement here

There are some very specific situations where you may be able to use copyrighted material without permission. These are called “defences” or “exceptions” (discussed further below) and you should always get legal advice if you want to use copyright material and rely on a defence.  

The first question to ask is: have you done something that the copyright owner must give permission for (such as reproduction or making available online) in relation to the whole or substantial part of the copyright work?   

Did you have permission to use the work 

If you receive a letter of demand, and you did use the work in question, you should ask yourself whether you had permission to use the copyright work. 

It is a common misconception that images and material on the internet are free to use. The fact that something was online does not mean you have permission to use it. 

If you think you do have permission, check that the way that you are using the work is within the scope of that permission.   

Do you have a defence? 

In Australia, it is not a defence to say that you were not using the work commercially, you did not realise you needed permission, or you did not make any money from using the work.  ‘Fair use’ is also not a defence.   

Australia has a series of specific copyright exceptions or defences.  These include a ‘fair dealing’ with a copyright work for the purpose of research or study, reporting the news, parody or satire or criticism or review.   

It is important to remember that each country has its own copyright law.  The copyright laws (and defences available) may be different in Australia and in other countries around the world.   

Consider whether to stop using the work  

If you did not have permission to use a copyright work and a defence does not apply, you should generally stop using it unless a defence applies.  

Stopping use of an infringing work is not itself an admission that you have done anything wrong.  You should generally be very careful not to make admissions unless you have spoken to a lawyer first. 

Sometimes, the main thing the copyright owner wants is for you to stop using their work. If you stop using the work, the issue may end there.  Other times, that will not be enough.  

Ask a lawyer for help! 

A lawyer can give you advice about the letter you have received. A lawyer can help you: 

  • Understand the letter of demand. 
  • Work out whether you have infringed copyright. 
  • Work out whether you have a defence. 
  • Assist you work out the best way to deal with the letter in your circumstances. 

Receiving a letter of demand as an artist can be very stressful. Arts Law are here to help. If you are an artist or arts organisation, you can ask Arts Law for help by submitting a legal query here.   

Put in place practices to reduce your copyright infringement risk for next time 

You can use the letter of demand as a learning experience by putting in place good practices to  reduce your risk of getting more letters. 

Every time you use something in your art or in your arts practice, you should ask yourself: 

  • Is this thing that I want to use protected by copyright? 
  • Do I have permission to use it? 
  • Can I rely on a defence? Do I need legal advice on whether the defence applies? 
  • If I do have permission, is that permission recorded in writing? For example, is it in a written agreement, in terms and conditions, or in an exchange of emails? 
  • Have I acknowledged and considered the moral rights of the artist or author?