If you have ever discovered your work being copied online, you may have wondered whether you should send a cease and desist ("C&D") letter or jump right to issuing a DMCA takedown notice to have to item(s) removed. A C&D is a communication that lays out your legal rights/claims, identifies what the other party is doing that violates said rights and requests that they stop doing that thing. It can be written by anyone, not just an attorney.
Personally, I don't usually bother with a C&D in an infringement situation but I've seen others that always start with one. It really is a personal preference but what are some reasons you may want to start with a cease and desist letter?
Writing and sending a C&D letter to someone you believe is infringing on your copyright is essentially giving them a chance to remove the infringing item voluntarily while a DMCA takedown would lead to an involuntary removal.
To maintain their immunity from liability ("safe harbor"), the DMCA requires venues to remove the accounts of individuals who have repeatedly violated copyright. [1] Many sites use a "strike" based system to comply with this portion of the law. In other words, if you get a certain number of copyright strikes, you can and will be shut down. So, using a C&D would allow the accused infringer to remove the work in question without incurring a "strike" to their account. This is a kindness and nothing more.
Why extend this kindness? Well, the shop owner may truly just be confused about the rules on copying and taking inspiration. Or, they may not actually be the one that copied you but may have purchased a license or other "permission" to use your work from the original thief. Of course there is no real way to know this ahead of time but understand that these are possibilities. Some people just want to start with giving the benefit of the doubt and there is nothing wrong with that.
But, if the account has copied multiple items of yours or you recognize that their shop/site is full of infringing content, you may not want to extend this kindness. It is the accrual of formal reports via the DMCA system that leads to account removal and some accounts just really need to be removed.
Another reason you might want to use a C&D is to keep your contact information private. When you submit a DMCA takedown, you have to include sufficient contact information. [2] This information is generally provided to the person against whom you issued the takedown. Some people are just uncomfortable with this and would rather avoid it if possible. Of course, getting a P.O. box, Google Phone Number and/or a dedicated business e-mail address can also protect your contact information if that is an issue for you.
Finally, it may just be easier or preferable to deal directly with the individuals involved. Sending a C&D opens a line of communication and can prove to be beneficial if negotiations or further explanation/discussion becomes necessary.
There is no real right or wrong answer here. If you are someone who'd prefer to handle infringement concerns informally and personally, start with C&D. You can always escalate to a DMCA takedown if the C&D approach does not work out.
Here are two sample cease and desist letters (informal vs formal). Feel free to peruse or copy as you see fit.
Sample Cease and Desist Letter {Informal}
Hello,
I wanted to drop you a note to let you know that I am the original creator of the work shown here: [insert location of work]. This piece was created in [insert month/year] and my copyright has been in effect since that time. Recently, I happened upon a piece you created located here: [insert location of infringing work] and I believe that it is an infringing copy of my original work [or insert your legal basis for the letter].
As a courtesy, and in lieu of taking formal action, I wanted to give you an opportunity to voluntarily take the work down. If the work is not removed or disabled within 7 (seven) calendar days, or by [insert date], I intend to escalate this issue. Escalation may include filing a takedown notice under the Digital Millennium Copyright Act (“DMCA”) and/or pursuing litigation. Please be aware that, if a DMCA takedown becomes necessary, not only will the infringing item be removed but it may result in the closure of your [shop/website/etc.]. Additionally, if additional legal action is required, a failure to comply with this message may be used as evidence against you.
But, again, before pursuing any of the legal remedies at my disposal, I wanted to reach out and try to resolve this informally. I sincerely hope we are able to do so and will check back on [insert deadline date]. If you have any questions, I can be reached at [insert contact information here].
Thank you for your attention to this matter.
[Insert your name here]
Sample Cease and Desist Letter {Formal}
[Insert name of accused infringer]
[Insert address where letter is being sent. If it is an e-mail address it is best to say “Sent via Electronic Mail Only to (insert e-mail address)]
To [Name of accused infringer],
I am writing to notify you that I am the lawful owner of the copyright in the work shown here: [insert location of work]. My copyright has been in effect since [insert date work was created]. It has come to my attention that a work you have created, located here: [insert location of infringing work], is a reproduction of my original work [or insert your legal basis for the letter]. Your actions constitute copyright infringement in violation of United States copyright laws.
As such, I demand that you 1) CEASE AND DESIST all unlawful copying - i.e. immediately remove and/or disable access to the infringing work named above - and 2) provide me with prompt written notification, within 7 (seven) calendar days, that you have complied with this request and will cease and desist from any further infringement on my original work.
If you do not comply with this cease and desist demand within this time period, I will be forced to utilize all legal avenues at my disposal, including filing a takedown notice under the Digital Millennium Copyright Act and/or pursuing litigation. If a lawsuit becomes necessary please be aware that your failure to comply with this letter may be used as evidence of “willful infringement” which can result in higher monetary penalties.
Before pursuing any legal remedies, I wanted to give you an opportunity to voluntarily remove the infringing work. Accordingly, I look forward to hearing back from you within the time frame described above. I can be reached at [insert contact information here].
Sincerely,
[Sign name here]
____________________________________________
[Print name here]
[1] 17 U.S.C. § 512(i)(1)(A).
[2] 17 U.S.C. § 512(c)(3)(A)(iv).
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