If you get a letter before action claiming that you’ve infringed someone’s copyright – don’t just throw in the towel straight away. There are a number of things you can check.
Does the claimant actually have copyright protection?
If the work someone is claiming rights in is old, copyright may have expired. You don’t have to ask anybody’s permission in that case. Or perhaps they are claiming rights in something that they have assigned away. It’s very common that for some kinds of work, it is not the author who has copyright but their employer, or someone else to whom they have assigned it. If you believe that the claimant has incorrectly asserted that copyright exists in a work, or that they own it, your response should say so.
Have you infringed their copyright?
If what you are doing amounts to a “restricted act”, and copyright exists, then you are potentially infringing. It doesn’t matter if the copy is accidental, but whether or not you were aware of the copyright might affect the damages which a court could award.
Remember also that it is possible to indirectly infringe copyright,for example by dealing with, selling or importing articles when you know or have reason to believe that they amount to infringing copies.
Permitted use: is what you are doing allowed by law?
A number of ways in which copyright might otherwise be infringed are actually permitted, and these may depend on the purposes, relating to such things as (for example):
- purely private use
- non-commercial research
- criticism or review
- legal or similar proceedings
- where images include permanent structures which could be protected such as sculptures and buildings
- where the work is in the background to another artistic work
- permitted lawful use of software or databases
Do you have a licence?
If you were granted a licence to do what the copyright owner is complaining of, then they cannot make a claim against you if you are acting within its terms. But you should check the terms: a licence to make T-shirts featuring a copyright image does not give you permission to make jackets featuring the same image, but a licence to make T-shirts and other garments would probably be enough.
A licence can be granted informally: it does not need a specific document, but it is obviously easier to show that you are entitled to do the acts complained of if you can point to the licence, or at least to e-mails or other correspondence that led you to believe that you were acting with permission.
What does the letter before action ask for?
The most likely thing that all letters before action contain is a requirement that the infringing work or articles be withdrawn. If you have infringed copyright, you must agree to do this or risk being taken to court for an injunction. You may wish to try to negotiate a licence to carry on using the copyright work, but the copyright owner could not be compelled to grant one.
Often the letter before action calls for compensation be paid by way of settlement. You are not obliged to agree to this sum, and negotiation is common at this point. But remember that any sum that the court might award against you as damages, combined with legal expenses, would almost certainly exceed the cost settling out of court.
If you have been making or selling products which utilise infringing copies, you can be required to destroy or hand them over. You could also be required to give an account of the profits you have made – which means that you would have to hand over any profits you have made from someone else’s work. This could involve complex analysis of income, and specialist advice.
What to do next?
Remember that it is not a legal requirement for the copyright owner to have served a letter before action at all (though a court might not look favourably on them if they had not given you a chance to resolve the issue without legal proceedings being initiated). If you receive a letter before action, it will almost certainly reserve the owner’s right to begin proceedings without notice.
- Respond promptly to the letter. If it contains any deadlines, do your utmost to meet them.
- Respond to every aspect of the letter. If you dispute any part of it, say so, and say why.
- If the action that the letter demands seems too severe, or the compensation too high, you can of course negotiate, but you should consider seeking legal advice.