You’ve Been Trolled: Assessing a Copyright Infringement Cease and Desist Letter

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February 15, 2021
Gene Brockland and Kay Weiler
SmithAmundsen Intellectual Property Alert

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You’ve Been Trolled: Assessing a Copyright Infringement Cease and Desist LetterAlmost every company’s web site has one or more photographs. Maybe yours have been in use for years. You don’t remember where or how you got them, but you like them. They look good.  They illustrate your product or service. You have enough on your plate running your business without worrying about how your web site is illustrated.

Out of the blue, you receive a cease and desist letter from some lawyer, claiming that you are engaging in copyright infringement by displaying one of those photographs. The lawyer demands that you immediately remove the photo from your web site and pay thousands of dollars in damages and attorney’s fees. What do you do?

Before making immediate changes to your web site and reaching for your checkbook, you should consider whether you have insurance coverage and quickly assess the merits of the claim. As to insurance, your business policy may or may not cover these types of claims, but you should report the claim to your carrier immediately to find out. Chances are they will assist you with defense costs and finding the right attorney to assist with assessing the claim.

Assessing the merits of the claim should be done quickly, because continuing to display the subject photograph after receipt of the demand letter may be evidence of willful infringement if it turns out the claim has merit.

To assess the merits of the claim, consider the following:

In summary, if you have received a cease and desist letter, don’t panic. Rather, investigate it and assess the merits of the claim. Only then can you determine your next step. However, do not ignore the letter altogether. If you fail to take down the allegedly infringing photograph, your continued use of the photograph may be considered willful infringement subject to the much higher statutory damages noted above. When in doubt, consult an intellectual property attorney to help you evaluate the claim.