Copyright Infringement Demand Letters
Copyright Infringement Demand Letters
Federal Copyright Law – 17 U.S.C. §§101–122
Federal Copyright Law Basics
📋 Federal Jurisdiction: Copyright claims are exclusively federal (17 U.S.C.). These demand letters precede potential federal court litigation with significant statutory damages and attorney’s fee exposure.
Two-Element Test for Copyright Infringement
| Element | What You Must Prove |
|---|---|
| 1. Ownership of valid copyright | Registration certificate or application; authorship evidence; chain of title for assigned works |
| 2. Copying of constituent elements | Access + substantial similarity OR striking similarity (where access unclear) |
Registration Requirements – 17 U.S.C. §411(a)
- U.S. works: Registration or refusal required before filing suit
- Timing for statutory damages: Register before infringement begins OR within 3 months of publication to preserve full remedy spectrum
- Late registration: Still valid for suit but limited to actual damages + profits, no statutory damages or attorney’s fees for pre-registration infringement
Statutory Damages – 17 U.S.C. §504
| Infringement Type | Statutory Range per Work |
|---|---|
| Standard infringement | $750 – $30,000 |
| Willful infringement | Up to $150,000 |
| Innocent infringement | Reduced to $200 (rare) |
⚠️ Attorney’s Fees: 17 U.S.C. §505 allows prevailing party to recover attorney’s fees at court’s discretion. This creates enormous leverage in demand letters – infringer faces potentially six-figure defense costs plus damages.
Access + Substantial Similarity
- Access: Opportunity to view work (prior business relationship, public availability, shared platforms)
- Substantial similarity: Ordinary observer would recognize copying; extrinsic test (objective elements) + intrinsic test (total concept & feel)
- Protectable expression only: Ideas, facts, scenes-à-faire, and functional elements excluded
Evidence Checklist for Copyright Demands
Your Ownership Documentation
- Registration certificate: From U.S. Copyright Office with registration number and effective date
- Deposit copies: What you submitted to Copyright Office
- Original creation evidence: Date-stamped files, project files (PSD, INDD, Final Cut Pro), camera RAW files with EXIF data
- Published versions: First publication date, copyright notices
- Assignments/licenses: If you’re not original author, chain of title documents
Evidence of Defendant’s Copying
| Evidence Type | Examples |
|---|---|
| Access proof | Emails, prior contracts, shared Dropbox/Drive links, website analytics, purchase records |
| Infringement locations | URLs, screenshots with timestamps, Internet Archive snapshots, social media posts |
| Side-by-side comparisons | Visual overlays, text comparison tools (plagiarism checkers), expert analysis |
| Duration & scope | First appearance date, number of instances, commercial use evidence (ads, product pages) |
Calculating Actual Damages & Profits
If not electing statutory damages (or if late registration), you must prove:
- Your actual damages: Lost licensing revenue, lost sales, market harm (hard to quantify)
- Infringer’s profits attributable to infringement: You prove gross revenue; they prove deductible expenses and non-infringing revenue
💡 Strategic Tip: Most demand letters reference statutory damages as leverage even if you’d settle for far less. Defendant faces $750–$150,000 per work risk vs. your licensing fee (typically 2–10× normal rate).
Common Defenses to Anticipate
- Fair use (17 U.S.C. §107): Transformative use, commentary, news reporting – strongest in non-commercial contexts
- No substantial similarity: Only unprotectable elements copied (ideas, facts, generic expression)
- Independent creation: No access, parallel development
- License defense: Claim of implied or actual license from prior dealings
- Statute of limitations: 3 years from discovery of infringement (but each continuing use may be separate claim)
Drafting Effective Copyright Demand Letters
Letter Structure & Tone
- Professional, not threatening: Offer business resolution; avoid extortion language
- Specific identification: Registration numbers, URLs, screenshots, dates
- Clear ask: Immediate takedown + payment OR retroactive license OR both
- Reasonable deadline: 10–14 days typical
- Preserve goodwill where possible: “We understand this may be oversight…” if recipient is potential licensing customer
Essential Components
| Section | Content |
|---|---|
| Your ownership | Title of work, registration no., date, authorship, your rights (exclusive or assignee) |
| Infringement specifics | Where found (URLs), when discovered, screenshots, how they had access |
| Substantial similarity | Side-by-side comparison or description of copied elements |
| Commercial harm | How their use competes with your licensing markets or sales |
| Legal remedies available | Reference §504 statutory damages, §505 attorney’s fees, injunctive relief |
| Settlement proposal | Immediate takedown + licensing fee (2–5× standard rate) + no future use without permission |
| Response deadline | 10–14 days; state consequences (lawsuit, statutory damages) |
⚠️ Declaratory Judgment Risk: If your letter is too aggressive or premature, recipient may file declaratory judgment action in their preferred forum. Balance firmness with measured language.
Negotiation Strategies
- Tiered offers: “Immediate takedown + $X within 7 days, OR $2X if after 7 days, OR statutory damages if we file suit”
- Retroactive license: Frame payment as licensing fee, not penalty – easier for corporate defendants to justify
- Future relationship: If infringer is in your industry, offer ongoing license at standard rates post-settlement
- Non-monetary terms: Attribution, links, case studies – sometimes more valuable than cash for certain works
What NOT to Include
- Threats of criminal prosecution (copyright infringement is rarely prosecuted criminally)
- Wildly inflated damages without statutory basis
- Demands that recipient admit to “theft” or “piracy” in writing
- Confidentiality clauses preventing recipient from consulting counsel
Sample Copyright Demand Letters
Sample 1: Photography Infringement (Registered Work)
[Your Name / Company]
[Address]
[Email / Phone]
[Date]
[Defendant Name]
[Company]
[Address]
Re: Copyright Infringement of Registered Photograph – Demand for Immediate Removal and Payment
Dear [Defendant Name]:
I am the creator and copyright owner of the photograph titled “[Photo Title]” (U.S. Copyright Registration No. [VA 123-456], effective date [Date]), originally created on [Creation Date] and first published on [Publication Date].
I recently discovered that your company is using my copyrighted photograph without authorization on the following pages of your website:
• [URL 1] (discovered [Date], screenshot attached)
• [URL 2] (discovered [Date], screenshot attached)
I have not licensed or authorized this use. Your use constitutes direct copyright infringement under 17 U.S.C. §501. My photograph is being used commercially to promote your products/services, directly competing with my stock photography licensing business.
As the registered copyright owner, I am entitled to:
1. Statutory damages of $750–$30,000 per infringement (up to $150,000 if willful) under 17 U.S.C. §504(c);
2. Your profits attributable to the infringement under §504(b);
3. Injunctive relief under §502;
4. Attorney’s fees and full costs under §505.
To resolve this matter without litigation, I propose the following:
1. Immediate removal of the photograph from all locations within 48 hours;
2. Payment of $[Amount] as a retroactive licensing fee (representing [X]× my standard commercial rate of $[Standard Rate]);
3. Written confirmation that you will not use my work in the future without proper licensing.
If I receive your acceptance and payment within 14 days of this letter, I will consider the matter resolved. If I do not receive your response by [Deadline Date], I will proceed with federal litigation without further notice.
I am open to discussing an ongoing licensing relationship for future use of my work.
Please contact me at [Email/Phone] to discuss resolution.
Sincerely,
[Your Name]
[Attachments: Registration Certificate, Screenshots, Side-by-Side Comparison]
Sample 2: Written Work / Blog Content Infringement
[Your Name / Business]
[Address]
[Email / Phone]
[Date]
[Defendant Name]
[Website/Company]
[Address]
Re: Unauthorized Copying of My Copyrighted Article – “[Article Title]”
Dear [Defendant Name]:
I am the author and copyright owner of the article titled “[Article Title],” originally published on my website [YourSite.com] on [Date]. While I have not yet registered this work with the U.S. Copyright Office, I am the original author and own all rights under 17 U.S.C. §102.
On [Discovery Date], I discovered that your website [TheirSite.com] published a substantially identical copy of my article at [URL]. A side-by-side comparison reveals that you have copied:
• [Number] paragraphs verbatim or with only minor word changes;
• My unique analysis and commentary on [Topic];
• My original examples and case studies.
Your article appears under your name/brand without any attribution to me as the original author. This use is not a fair use under §107 – it is not transformative, is commercial in nature, uses substantial portions of my work, and harms my ability to monetize my content through advertising and syndication.
I demand:
1. Immediate removal of the infringing article within 72 hours;
2. Compensation of $[Amount] for the unauthorized commercial use of my work;
3. A published correction/retraction acknowledging the improper use.
Because this work is not yet registered, I am currently limited to actual damages and your profits. However, I am in the process of registering this and other works, which will entitle me to statutory damages and attorney’s fees for any future or continuing infringement.
Please respond by [Date] with confirmation of removal and your proposal for compensation. If we cannot reach an agreement, I will complete registration and proceed with federal litigation.
I am willing to discuss a licensing arrangement if you wish to continue using modified versions of my work in the future.
Sincerely,
[Your Name]
[Attachments: Original publication evidence, Screenshots, Text comparison]
Sample 3: Software / Code Infringement
[Your Name/Company]
[Address]
[Email / Phone]
[Date]
[Defendant Name/Company]
[Address]
Re: Copyright Infringement of Proprietary Software Code – [Product Name]
Dear [Defendant Name]:
I am the owner of [Your Software Product], a [description] for which I hold copyright registrations covering the source code, documentation, and user interface (Registration Nos. [List numbers]).
Through [source of discovery – e.g., code repository analysis, customer report], I have determined that your product “[Their Product]” incorporates substantial portions of my copyrighted source code without authorization. Specifically:
• [File names / modules] contain code that is substantially similar or identical to my proprietary code;
• Comments, variable names, and unique algorithms are copied;
• [Number] lines of code show direct copying.
[If applicable: Your employees [Names] previously worked for my company and had access to this code under confidentiality agreements, which constitutes clear evidence of access and copying.]
Your unauthorized copying violates 17 U.S.C. §501 and may also constitute breach of contract and trade secret misappropriation under California law.
I demand:
1. Immediate cessation of distribution and use of all infringing versions;
2. Destruction or return of all copies containing my code;
3. Payment of $[Amount] representing a reasonable royalty for units already distributed;
4. Audit rights to verify compliance.
As an alternative to litigation seeking statutory damages of up to $150,000 per work plus attorney’s fees, I am willing to discuss a license for your continued use of the technology at commercially reasonable rates.
Please respond within 10 days. Failure to respond will result in filing of federal copyright infringement claims and possible trade secret litigation.
Sincerely,
[Your Name/Title]
[Attachments: Registration certificates, Code comparison analysis, Employment/NDA records if applicable]
Remedies & Responding to Copyright Claims
Available Remedies in Federal Court
| Remedy | Statute | Strategic Notes |
|---|---|---|
| Injunctive relief | §502 | Permanent injunction bars future infringement; preliminary injunction available on strong showing |
| Impoundment & destruction | §503 | Court can order seizure and destruction of infringing copies |
| Actual damages + profits | §504(b) | You prove revenue; they prove expenses. Cumulative (both damages AND profits). |
| Statutory damages | §504(c) | Elect instead of actual damages. $750–$30k standard; up to $150k willful. Per work, not per instance. |
| Costs & attorney’s fees | §505 | Discretionary but routinely awarded to prevailing plaintiffs with timely registration |
Responding to Copyright Demand Letters – Recipient Side
📥 Received a Copyright Demand? Don’t ignore it. Federal copyright suits carry serious financial exposure. Evaluate the claim’s strength before responding.
Initial Triage Steps
- Verify their ownership: Check registration at copyright.gov; confirm they own what they claim
- Assess substantial similarity: Is the copying obvious or are differences significant?
- Evaluate access: Did you actually have access to their work before creating yours?
- Registration timing: When was work registered relative to infringement? Affects damages.
- Review defenses: Fair use? License? Independent creation?
Potential Defenses
| Defense | When It Applies |
|---|---|
| Fair use (§107) | Transformative use (parody, commentary, news); non-commercial; minimal use; no market harm |
| No substantial similarity | Only unprotectable elements copied (ideas, facts, scenes-à-faire) |
| Independent creation | You created work independently without access to theirs |
| License (express or implied) | Prior permission, course of dealing, industry custom suggesting permission |
| Statute of limitations | Claim accrued >3 years before suit filed (each use may be separate claim) |
| Invalid copyright | Work not original, registration fraudulent, not copyrightable subject matter |
Response Strategies
- Immediate takedown + negotiate: If liability is clear and damages modest, remove content and negotiate reduced payment
- Obtain license retroactively: Frame as “we’d like to license this properly going forward”
- Challenge registration/ownership: If you doubt their claim, demand proof before engaging substantively
- Assert fair use: If use is commentary, news, transformative – provide detailed fair-use analysis in response
- Make them file suit: If demand is overreaching or you have strong defenses, consult counsel and decline settlement
⚠️ Declaratory Judgment Option: If you’re uncertain whether your use infringes and want clarity, you can file declaratory judgment action seeking court ruling that you do NOT infringe. This lets you choose the forum and puts plaintiff on defense.
Settlement Negotiation Tips for Recipients
- Demand detailed evidence of registration, ownership, and access before agreeing to pay
- Counter with your own licensing-fee calculation based on standard industry rates
- Insist on mutual release – you pay $X, they release all claims
- Avoid admissions of “willful” infringement (affects damages multiplier)
- Get agreement that licensor will not pursue claims against your customers/downstream users
Attorney Services for Copyright Disputes
Protecting Your Creative Work?
I represent copyright owners and defendants in federal copyright disputes. Whether you’ve discovered infringement of your work or received a demand letter, I provide strategic counsel to maximize your leverage and minimize risk.
For Copyright Owners
- Draft demand letters that balance firmness with settlement strategy
- Conduct infringement investigations and gather evidence
- Negotiate retroactive licenses and settlement agreements
- File and prosecute federal copyright infringement lawsuits
- Obtain preliminary injunctions to stop ongoing infringement
- Handle copyright registration and recordation
- Calculate and prove statutory damages or actual damages + profits
For Accused Infringers
- Evaluate strength of infringement claims and defenses
- Negotiate settlements to avoid federal litigation
- Assert fair use, independent creation, and other defenses
- File declaratory judgment actions when strategic
- Defend federal copyright lawsuits through trial
- Challenge invalid registrations and copyright misuse
Why Early Legal Advice Matters
Leverage & Risk Management: For copyright owners, properly drafted demand letters maximize settlement value by highlighting statutory damages and fee-shifting. For recipients, early analysis of fair use and other defenses can lead to quick dismissal or favorable settlement, avoiding six-figure litigation costs.
Typical Cases
- Photography and stock image infringement
- Software and source code copying
- Written content (articles, blog posts, marketing copy)
- Video and audiovisual work infringement
- Graphic design and visual art disputes
- Music and sound recording claims (composition vs. master rights)
Schedule a Call
Book a call to discuss your copyright matter. I’ll review the infringement evidence or demand letter, assess your legal position, and recommend next steps for enforcement or defense.
Contact Information
Email: owner@terms.law
Frequently Asked Questions
No, but it’s highly recommended. You can send a demand letter based on common-law copyright, but you cannot file a federal lawsuit for U.S. works without registration (or refusal). More importantly, timely registration (before infringement or within 3 months of publication) preserves your right to statutory damages and attorney’s fees – your strongest leverage in negotiations. If you discover infringement, file an expedited registration application immediately (current processing time ~7–10 business days with expedited fee).
Statutory damages are calculated per work, not per instance of infringement. If defendant uses your single photograph on 50 web pages, that’s still one work. However, each work in a group registration or separate registration is a separate damages award. This is why group registration for photographers (all photos from a 3-month period) is strategic – turns 100 photos into 100 potential damage awards.
Fair use is a mixed question of law and fact evaluated under four statutory factors: (1) purpose/character (commercial vs. transformative), (2) nature of work, (3) amount used, (4) market effect. Most commercial uses (product marketing, ad campaigns) fail fair use. Legitimate fair use is typically transformative commentary, parody, news reporting, or educational use with minimal copying. In a demand letter, address their likely fair-use claim by showing: commercial purpose, use of entire work or heart of work, and market substitution. Many fair-use claims are pretextual.
Common formula: Standard licensing fee × multiplier (2–5×) based on willfulness and scope of infringement. For example, if you’d license a photo for $500, demand $1,500–$2,500 for unauthorized use. Highlight that this is far less than statutory damages ($750–$150,000) and avoids both parties’ litigation costs. If infringement is egregious or widespread, demand more. If it’s small business or individual, consider scaling down to maximize chance of payment vs. walking away with nothing.