By Julie C. Hancock

Creatives and artists deserve the protection offered under copyright law for the significant and unique work they’re building a career on each and every day. Copyright law covers a vast landscape and provides a pathway of protection and enforcement that allows these creatives and artists to flourish.

Unfortunately, these individuals are often running small businesses as a means to promote and sell their work. Small businesses don’t have the same spending power as a large corporation that can pay a team of attorneys large sums of money to protect and defend their work from infringing actions by outside parties. That’s why it’s imperative for small business creatives to understand the simple steps that can be taken to protect their creative works.

For many creators, the first step in any enforcement action is to issue a cease and desist letter. But, how much power does that letter actually hold and when is it appropriate?

When a Cease and Desist is Necessary

Cease and desist letters are a key step in the copyright protection process. When a business identifies an infringing action by a third party, this type of letter is a prudent first step to attempt to address the matter before beginning a more formal legal infringement action in the courts. 

When someone is using photographs, original art, videos, sounds, dramatic works, or other copyrighted materials without permission for their own gain, it’s time to take action. Failing to do so can lessen the ability to claim certain damages down the road.

Sending a cease and desist letter, or, more likely, having a copyright attorney send one, is pivotal. The main purpose of this letter is to specify what infringement has taken place and warn of further legal action should the infringement continue.  This is also an opportunity to demand licensing fees and damages for the infringing use. 

Cease and Desist Letters Hold Little Legal Power

Cease and desist letters, though commonly used in copyright disputes, often carry a reputation that exceeds their actual legal authority. On their own, these letters are not legally binding documents but rather serve as a formal request to stop alleged unlawful activities. Their strength lies more in their symbolism and the intent they communicate, rather than in enforceable legal power.

The true value of a cease and desist letter is its role as a preliminary step in enforcing copyright protections. It acts as a proactive measure to address and potentially settle an infringement issue outside of court. By sending such a letter, the copyright holder makes their position clear and sets the stage for amicable resolution without escalating to legal proceedings. This approach can save both parties time, effort, and expenses associated with litigation.

When a cease and desist letter is issued, it effectively puts the alleged infringer on notice. If the infringing party chooses to ignore this letter and continues with the infringement, this can significantly impact any subsequent legal actions. Continued infringement after receiving a cease and desist letter can be construed as willful violation of copyright. In legal terms, 'willful infringement' suggests a conscious and intentional disregard of the copyright holder’s rights, which can lead to more severe legal repercussions.

If the case eventually goes to the Copyright Claims Board or Federal Court, the fact that the infringer continued their actions even after being formally notified can influence the court's decision. It often leads to higher damages being awarded to the copyright holder. In copyright law, penalties for willful and ongoing infringement can escalate quickly, potentially including statutory damages, attorney’s fees, and in some cases, even criminal charges.

Therefore, while a cease and desist letter might seem like a simple document, it plays a critical role in the broader context of copyright enforcement. It serves as a warning and an opportunity for resolution, but also as a foundational element in building a stronger case for the copyright holder should legal action become necessary.

Advocating for Small Business Creatives

Your Virtual Advocate is committed to backing artists, creatives, and small businesses. We provide essential copyright protection and enforcement to prevent others from exploiting your hard work. Our aim is to empower the creative community, recognizing the unique challenges faced in bringing ideas to life. Get in touch with Your Virtual Advocate for reliable protection and respect for your creative endeavors.

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