Cease and Desist Letter: What Should I Do?

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Question:

Question:  I own a small business. I created a sales brochure, had it printed up and did a bulk mailing to about 1000 prospects.  About three months later I received a very formal letter from a similar business stating that my brochure “infringed” their copyright, demanding that I “cease and desist”, and saying I am liable for damages and attorneys fees. How much trouble am I in and what should I do?

Response:  Did you copy the other business's work? If you didn't and you've never seen their brochure, it will be hard to prove infringement because copyright infringement requires that you had access to the other work and that you copied it. If you did copy it, now's the time to call a lawyer to determine how to limit your liability. 

If it's somewhere in between -- for example, you've seen the other brochure or you copied a small portion, or you did something similar but it's not identical, you may not infringed but it will be difficult to tell. Again, this is the time to pick up the phone and check with a lawyer. You want to avoid any direct communication with the other party until you're sure about your rights.

If you don't respond at all to the cease and desist letter, it's possible that the other side may simply fold and forget about it. That's because some parties can't afford to take the matter further. Unfortunately, it also possible that the other side may send you a second warning and then file a lawsuit. If you are unable to reach a lawyer within the short term, write to the other side and state that you are investigating the matter and that you will respond as soon as you have an answer. 

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Additional Resource:  Copyright Law

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