General Information for Letters of Demand - Breach of Copyright and Moral Rights

What is a letter of demand for breach of copyright and/or moral rights? 

Once you have identified a breach of your copyright and/or moral rights, a letter of demand can be sent to the person or organisation responsible in order to:

  • make the recipient aware that you hold  the copyright and/or the moral rights in the work in question;
  • outline your exclusive rights as the copyright owner and/or your legal moral rights as the creator of the work;
  • explain how the recipient has infringed your copyright and/or moral rights and the legal consequences;
  • point out what they need to do to remedy the situation and specify a reasonable time limit within which that must happen;
  • inform them that if an adequate response is not received within a certain time that you may exercise your right to commence legal proceedings against them.

The letter of demand can become an important legal document if the problem is not resolved. It can be used as evidence in any court proceedings to prove that you informed the recipient of your rights and gave them an opportunity to rectify the breach.

 

Things to know when sending a letter of demand 

When sending a letter of demand you should be careful:

  • not to make threats about infringement which cannot be substantiated. You need to be able to prove that you are the creator of the work and show how the recipient has breached your copyright and/or moral rights;
  • not to send a letter which is designed to look like a court document;
  • to identify your work clearly and the way in which you allege your copyright and/or moral rights have been infringed (e.g. by reference to a publication, title, website etc.)

It is advisable to send a letter of demand by registered post or fax so that later you can demonstrate that it was received. Don't forget to retain a copy for your records.

 

After you received a reply to the Letter of Demand

If you receive a reply: 

If the recipient signs and returns a copy of the letter, he or she is bound by contract to comply with the undertakings. You should follow up to make sure they have done so. Alternatively, the reply may agree only to some of your demands or may offer something different. If this is acceptable to you, you should draw write back confirming your agreement so that the varied offer becomes a binding contract. It may be necessary to draw up an agreement that outlines what the parties have agreed to do and that they will carry these obligations out. This should also be signed by both sides.

If you do not receive a reply or receive a reply rejecting your allegations: 

It is advisable that you seek legal advice from a solicitor who may send another formal letter of demand. As a last legal resort, you may commence court proceedings. 

 

 

The following Samples Letters of Demand have been included from the ArtsLaw Information Sheet and they are for the sole purpose of legal reference only, please contact the solicitor to draft a formal letter of demand or proceed with relevant court proceedings in cases of serious breach.

1.        Moral rights infringement - Letter of Demand

2.       Copyright Infringement - Letter of Demand

3.       Copyright and Moral Right Infringement by Media - Letter of Demand (Visual Arts & Photos)

You should modify these Sample Letters of Demand to suit individual needs, please contact me for a PDF version of the above Sample Letters of Demand with Instructions. 

 

Letter of Demand - Moral Rights Infringement

ArtsLaw Information Sheet

 

Instructions and Notes. 

Set out above is a sample letter of demand. You will see where you need to insert your relevant information; however you may also need to amend the letter to suit your needs. For example, if the recipient is not only infringing your moral rights but has also infringed your copyright, you may need to combine elements from the sample letter of demand on copyright –

The following are some changes you may need to make to suit your particular case.

  • You will need to think about what 'remedies' or corrective actions to include in the fourth paragraph. These will depend on your particular work and how your moral rights have been infringed. They may include:
    • a demand that the recipient cease infringing your rights immediately ;
    • a public apology be made for the infringement;
    • a printed correction acknowledging the failure to attribute you and stating that you are the creator of the work;
    • changes to an exhibition or presentation or recall of a publication that is derogatory to your work and reputation;
    • damages for loss resulting from the infringement; and/or
    • a demand that any false attribution of authorship, or derogatory treatment, of the work be removed or reversed.
  • Try and make your demands as clear as possible so that the reader understands what you want and there is no confusion.
  • There is a good chance that if someone is infringing your moral rights, they may also be infringing your copyright. If you believe that copyright has also been infringed you may wish to adapt your letter to address this and add demands to rectify this problem. For further information on copyright please go to the Australian Copyright Council website.

 

 

Sample letter of demand for moral rights infringement 

[Date]

[Insert name]

[Insert address]

 

Dear Sir/Madam [or name of the person if known]

I am the creator of [insert name or description of work, for example "the documentary film entitled 'ABC for Artists' shown on free-to-air television in Australia in February 2008"] (the Work).

As creator of the Work, I have the following moral rights under Australian law:

a.    the right to be attributed as creator of the Work;

b.    the right against false attribution; and

c.    the right of integrity, to prevent derogatory treatment of my Work.

I have noticed that you have [insert way in which they have breached your moral rights. For example "you have failed to attribute me as the creator of the artwork which you have used in your exhibition on the 17th May 2007"].

[Attach an example if possible showing the breach - for example, a copy of an advertisement which shows the Work and does not attribute you as the artist.]

The conduct described above constitutes an infringement of my moral right ['to be attributed', AND/OR 'against false attribution', AND/OR 'of integrity'].

To rectify this infringement of my rights, I require that you undertake to:

[insert your demands as to how you want the reader to rectify the problem. Please see notes below.]

You can confirm your acceptance of these undertakings by signing and dating a copy of this letter and returning it to me within 21 days.

You are now on notice as to my moral rights in respect of the Work. If I do not receive an adequate response within 21 days of this letter, I will take such action as I may be advised in order to protect my rights including, without limitation, legal action for injunctive relief or to recover damages without further notice to you.

I otherwise reserve all my rights.

Yours faithfully

 

[signature]

 

AGREED:

_____________________

(signature)

_____________________

(print name)

_____________________

(date)

 

Letter of Demand - Copyright and moral right infringement by Media (Visual arts & Photo)

ArtsLaw Information Sheet

This information sheet explains to visual artists and photographers how to prepare a letter of demand to send to a person or organisation in the media (e.g. a newspaper) who you believe is infringing your copyright and/or moral rights, whether in print or online. The first step is to understand your copyright and moral rights and make a careful assessment as to whether they are being infringed.

INSTRUCTIONS AND NOTES 

Set out above is a sample letter of demand. You will see where you need to insert your relevant information; however you may also need to amend the letter to suit your needs.

The following are some changes you may need to make to suit your particular case.

  •  The sixth paragraph which lists your demands may need to be changed depending on the specific circumstances of the infringing conduct and whether the infringement concerns breaches of your copyright, moral rights or both.
  • Try and make your demands as clear as possible so that the reader understands what you want and there is no confusion.

 

 

Sample letter of demand for visual arts and photography print/online copyright and/or moral rights infringement 

[Date]

[Insert name]

[Insert address]

Dear Sir/Madam [or name of the person if known]

I am the owner of copyright in [AND/OR the creator of] [insert name or description of artwork or photograph] (the Work).

[Delete this paragraph is you are NOT the copyright owner] As copyright owner, I have a number of exclusive rights under the Copyright Act 1968 (Cth). These exclusive rights include the right to reproduce the Work, and to publish and communicate the Work to the public (including by way of sale, broadcast or putting the Work online). It is an infringement of copyright to do any of the acts comprised in the copyright in relation to the whole or a substantial part of the Work, or to authorise such an act, without my permission or licence.

[Delete this paragraph if your moral rights have NOT been infringed e.g. you were attributed for your work, but they did not seek your permission as copyright owner to reproduce your work in print or online]  As creator of the Work, I retain moral rights under Australian law, being:

a) the right to be attributed as creator of the Work;

b) the right against false attribution; and

c) the right of integrity, to prevent derogatory treatment of my Work. 

It is an infringement of my moral rights if I am not attributed as the creator of the Work, someone else is attributed as the creator of my Work, or my Work is treated in a derogatory manner without my permission.

It has come to my attention that you have [insert way in which they have breached your copyright and/or moral rights. If applicable also insert dates. For example: "photographed my artwork/reproduced my photograph and published it without permission AND/OR failed to attribute me as the creator of the artwork/photograph in your online publication dated 17 January 2013"]. [Attach an example if possible showing the breach - for example, a copy of an article or advertisement which shows the Work you have not given permission to reproduce AND/OR does not attribute you as the creator.] 

The conduct described above constitutes infringement of my copyright AND/OR my moral right ['to be attributed', AND/OR 'against false attribution', AND/OR 'of integrity'].

To rectify this infringement of my rights, I require that you undertake to:

1.    immediately stop infringing my copyright AND/OR moral rights;

2.    [insert any further demands as to how you want the person/organisation to rectify the problem which might include:

if you are the copyright owner:

o   provision for an amount of money for the use of your work to date;

o   entering into a license with the infringer for future use of your work;

o   delivery of all copies of your work to you including any infringing copies(if applicable); and/or

o   if the infringer is also selling reproductions of your work you will also want to demand that they cease to do so and that the reproductions be destroyed.

If you hold moral rights:

o   a public apology be made for the infringement;

o   a printed correction acknowledging the failure to attribute you and stating that you are the creator of the work;

o   recall of a publication that is derogatory to your work and reputation;

o   damages for loss resulting from the infringement; and/or

o   a demand that any false attribution of authorship, or derogatory treatment, of the work be removed or reversed. ]

You can confirm your acceptance of these undertakings by signing and dating a copy of this letter and returning it to me within 21 days.

You are now on notice as to my copyright [AND/OR moral rights] in respect of the Work. If I do not receive an adequate response within 21 days of this letter, I will take such action as I may be advised in order to protect my rights including, without limitation, legal action for injunctive relief or to recover damages without further notice to you.

I otherwise reserve all my rights.

Yours faithfully

 

[signature]

 

AGREED:

__________________________

(signature of authorised person)

__________________________

(name of authorised person)

__________________________

(company (if applicable))

__________________________

(date)