letter before action

Sending a letter before action

In previous posts, we’ve talked about what to do if you receive a letter before action – a letter telling you that you’ve (allegedly) infringed someone else’s copyright. Now let’s imagine that the boot is on the other foot.

What to do if someone has infringed your copyright?

If someone has copied your work without permission, the basic rule is that you’re generally entitled to stop them. And it becomes especially problematic if someone else is making money out of your work.

Imagine that you’ve created a comic character, or designed a logo, developed an app or even written a poem. The last thing you’d expect is to see someone else using it without your permission, possibly without giving you credit, and possibly depriving you of the opportunity of profit. You’d want to stop them from printing T-shirts with your design on them, recording a song with your poem as its lyrics, and so on. So here’s what to do about it.

Send a letter before action

A letter before action usually consists of several parts.

The first part draws attention to your property – namely the copyright you hold in the work. You identify yourself as the owner of the copyright work, which is the design, the poem, the photograph etc, and whether you own the copyright because it was assigned to you (by contract, or by inheritance, etc) or because you created the work.

Next you point out how you believe the other person is infringing your rights – whether by copying your work, selling or dealing with articles that constitute infringing copies, or using your work in some other way that they don’t have the right to do.

Then it’s the most important bit: what do you want them to do about it?

What to ask for in a letter before action

It’s important to get this right, because as its name suggests, this letter is the opening move in a process that could (in theory) end up in court.

  • You’ll want an undertaking to stop the infringing activity immediately. This sets out your position as the only person entitled to exploit your copyright works. It doesn’t mean you can’t change your mind later: often it ends up with the person being licensed (and therefore paying) to do what they were already doing unlawfully.
  • Next, a promise to destroy or deliver up infringing products. If the other person has made physical copies, or produced anything which carries the infringing copy, you can require that they hand them over or destroy them. If the copies are digital, then destroying them is the appropriate measure.

These measures will hopefully put an end to the infringement, but on their own they do not compensate you.

It’s common to put the ball into the other party’s court and ask for a proposal of compensation, at the same time reserving all your rights and remedies. (If it were to get as far as court proceedings, you would have to choose which form of remedy to pursue, but you don’t have to do that at this stage – the letter will hopefully be enough to achieve a settlement.)

Among the remedies that the letter will refer to are account of profits and damages.

  • If you can point to an activity, whether it is trading, selling or some other way by which the copier has made money which can be attributed to the infringing copies, an account of profits would mean roughly that you were entitled to the profits that the infringer has made, as if they were working for you.
  • Damages, in copyright cases, mean an amount reflecting such factors as financial loss that you have suffered by the infringement, unfair profits made by the copier, any loss to your reputation, or the amount that you might have received if the copying had been licensed.

Draft your letter before action on Simplify the Law

The best, cheapest, quickest and least stressful way of addressing a copyright infringement is to deal with it before it goes to court. For people who have to balance looking after their valuable IP, managing their businesses and fostering good relationships with potential business partners, a good letter before action is an essential first step, and will usually be the only one needed.

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