I received a letter claiming I violated someone’s copyright and demanding that I “cease and desist”. What should I do?

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:  A copyright is legal protection for the author of an original work in any form of expression– written, musical, dramatic or artistic.  The owner of the copyright, usually the creator though copyrights can be transferred, has the exclusive right to use, publish, copy, display or perform the copyrighted work.  It is against the law to violate the rights of the copyright owner or, as it is called, to ‘infringe’ the copyright. But there are exceptions. Some things just cannot be copyrighted.  An idea or concept (as opposed to a particular manner of expressing the idea or concept) cannot be copyrighted.  A collection of information that is common knowledge and doesn’t have an original, creative aspect such as the list of atomic elements, for example, or calendars or similar charts, cannot be copyrighted.  Other exceptions to copyright protection also include something called “fair use”, which is the right, without permission of the author, to use a portion of a copyrighted work for comment, news reporting, criticism, teaching or research.

That said, you should examine your business brochure and what the other party claims is their copyrighted material.  Did you copy or “plagiarize” any part of their original material?  If so, you may have infringed their copyright. But there are a number of other factors to consider.  Copyrights don’t last forever– they expire eventually.  Copyrights can be transferred and it is only the owner of the copyright, not the owner of the work, who has the legal rights. Monetary liability is not automatic and economic damages must be proven.  Liability for payment of attorneys’ fees may only be a factor if the copyright was formally registered with the US Copyright Office.  Most small businesses don’t go through the time and expense to register their copyrighted material.

Copyright law is complex and copyright infringement can be a serious legal matter. Consequences of infringement can include payment of damages and attorneys fees as well as the business interruption that results from being required to withdraw and rework infringing material. You should immediately contact an attorney specializing in intellectual property law to evaluate your situation and properly represent your business.

Answered by Duane Stamp

Additional Resource:  Copyright Law

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