FAQs About Cease and Desist Letters
Do You Need a Lawyer to Send a Cease & Desist Letter?
A cease and desist letter It is a legal notice sent to someone you believe is infringing on copyrights for something you own the rights to and you want them to stop.
There are three main components that should be clearly stated in every cease in desist notification:
- Your rights (that you own the materials); and
- The user is violating your rights; and
- You tell them to stop doing something specific immediately (i.e., remove an image or photo from a website that you have the rights to.)
Sometimes cease and desist letters contain additional instructions or even demands such as a demand for compensation (a settlement demand letter) or a formal request for proper attribution in order for the user to correct the violation.
It is important, however, to note that just because you make a demand, your letter does not establish you have a right to compensation or even that your claim to have exclusive rights to something is valid. Those are legal issues that may have to be settled in court (specifically, in a civil lawsuit) if you cannot work things out on your own with the business or individual you believe is infringing upon your rights.
Do I Have to Send a Cease and Desist Letter to Someone, or Can I Just Go Ahead and Sue Them?
You do not have to send a cease and desist letter prior to filing a civil claim against someone. However, if you are planning to sue someone on your own to do so without at least talking to an attorney would be shooting yourself in the foot.
If your claim is small, chances are you can work things out without going to court. It allows both parties involved to settle a dispute without having to bear the expenses or lawyers and court fees.
If you do go straight to court, make sure you are prepared to answer as to why you did not choose to try and work things out with a cease and desist letter.
If a defendant can show genuine ignorance and that they did not intend to violate copyright laws, you may get less awarded in damages. However, if you can show that you notified the defendant with a cease and desist letter and they continued to violate copyrights laws, your damages award could increase if you win a lawsuit against them.
Do I Have to Hire an Attorney, or Can I Write My Own Cease and Desist Letter?
No, you do not need to hire an attorney (but there are many good reasons why you may at least want to have an attorney who specializes in copyright laws review yours before sending it out which I discuss more below.)
Anyone can send a cease and desist letter, however, sending one does not necessarily mean you have adequately, or even legally asserted or protected your rights. Sending a threatening cease and desist letter under false pretenses, or for malicious reasons, could even be a crime that exposes you to potential counter legal action.
Before you accuse someone of breaking the law and demanding action, especially if you are demanding payment, you should consult an attorney.
Falsely accusing someone, or demanding payment under threat of harm (including threatening to sue) could be considered a crime under certain circumstances.
Benefits of Having an Attorney Send a Cease and Desist Letter
Civil claims can be complicated, expensive, and long-drawn-out, often taking years to be resolved. Even if you get a verdict in your favor, the defendant may file an appeal and further extend the legal process. If you do have a good copyright infringement case, an attorney will most likely handle your case free of charge (aka on a contingency fee basis). You only pay the attorney if he wins a verdict or obtains a settlement for you.
An attorney can advise you if your rights have been violated and you even have the grounds for legal action.
An attorney can tell you if a cease and desist letter is the appropriate course of action, and can even write the letter for you.
In almost all cases involving consumers, a letter from an attorney will be taken more seriously than a letter from an individual.
And, a court of law, should you need to sue, may also take a letter sent by a lawyer more seriously than one you sent by yourself.