“You have copied my work” – how to react to copyright infringement claims

There are three potential sources of communications alleging that you have copied someone else’s work:

1. the author and copyright holder of the work; or
2. a solicitor who acts on behalf of the copyright holder; or
3. an agency who claims to enforce rights in works for third parties, who are the copyright holders of the works. These may include press archives such as Reuters. They usually include an invoice they ask you to pay by way of compensation for the infringement.

Since there is no copyright register in the UK, any claimant needs to establish that they own copyright in the work in question as well as making it clear how they believe you have copied the work. The Civil Procedure Rules (Practice Direction Pre-Action Conduct and Protocols) which concern steps to be taken by a potential claimant and a potential defendant prior to issuing formal proceedings state that these will usually include:

(a)     the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated;

(b)     the defendant responding within a reasonable time – 14 days in a straightforward case and no more than 3 months in a very complex one. The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim; and

(c)     the parties disclosing key documents relevant to the issues in dispute.

If the work the claimant says has been infringed, was never published or was only available through a very obscure source, and your work is not identical to the purported original, they may have a problem proving  copying. In this case, and in other cases, where the infringement claim involves a work that is not identical, it is advisable to consult a solicitor   to obtain legal advice on the strengths and weaknesses of the claim and respond accordingly.

If the work the author claims has been infringed is undoubtedly identical to your work, and you are aware (or find out after receiving a claim) that you have used it without permission and perhaps without even crediting the author, it is likely that their claim of infringement is justified and will succeed unless you come within ‘fair dealing’ exceptions such as fair dealing for the purpose of

1. quotation;
2. reporting on current events (this does not apply to the use of photographs);
3. non-commercial research and private study;
4. criticism and review;
5. parody

If your use of the work is covered by one of these exceptions this means you will not be liable for infringement. There are other circumstances where you may be able to defend a claim for copyright infringement for example where the period of copyright protection has expired. Such a work is said to be in the public domain.

Again, it would be advisable to consult a solicitor if you think that one of the exceptions applies or you may have an alternative defence to copyright infringement to confirm this before you reply.

However, if you accept that you are liable for the infringement as it is obvious and you do not need a solicitor to confirm your position you have options to reply depending on who sent the letter and whether or not the letter asks you to pay compensation and/or a contribution to the claimant’s legal costs.

Your response to letter no 1:

The best way to deal with an infringement claim sent directly from the author of the copyright work or if different directly from the copyright holder (who have explained how they come to own copyright in the work r), is to immediately stop the infringing acts, e.g. take the work down from the website or blog etc., and do everything you possibly can to delete the works everywhere you have used them including from your devices. You then reply to the author of the letter or email, firstly, apologising for the unauthorised use and telling them what steps you have taken to stop the infringement. If stopping the infringement involves printed matters, e.g. a brochure, flyer or even book, you may want to negotiate a period whereby you phase out the distribution of products that contain the infringing work if appropriate. The copyright holder may want to charge you for the continued use of the work if it is not practical to stop using the infringing works immediately.

If the copyright holder has included a sum of money to compensate them for the unauthorized use and such sum does not seem unreasonable,  you may decide to pay that sum. If the sum seems unreasonably high, you should ask on what basis the sum has been calculated (if this has not been explained to you). The calculation of appropriate compensation has quite complex rules and if it appears that the claimant cannot explain how they arrived at the sum demanded or their calculation does not make sense to you, you may want to consider consulting a solicitor if the claimant is not prepared to lower the compensation. However, you would need to balance the cost of obtaining advice from a solicitor with the amount you may save if your solicitor tells you the compensation claimed has no justifiable basis, and therefore, the claimant would be unlikely to  achieve such an award of compensation if they went  to  court. .

Your response to letter no 2:

If the letter is sent by a solicitor it is very likely a so-called Letter of Claim which threatens court action if you do not comply with the requests by the deadline given in the letter. The deadline should be at least 14 days from receiving the letter to allow you to receive advice from a solicitor about your position in accordance with the Pre-Action Conduct and Protocol referred to above). If they do not give you enough time to respond you can reply politely stating that you need more time to seek legal advice and respond substantially to their claims and suggest an extension of time. In most cases, this should be granted as long as you request it within the deadline given.

The letter should clearly set out the claimant’s position, provide details about how  the claimant owns copyright in the work in question and how you have allegedly infringed the works. In cases involving alleged copyright infringement of music or lyrics there can often be issues about ownership.

The letter will very likely contain contractual terms called ‘undertakings’ you are supposed to sign by the deadline given. You should read the undertakings carefully.  They usually contain promises you make to the claimant including that you will stop the infringement immediately (or by a specified date), desist from future infringement, pay a contribution to the claimant’s legal costs and pay compensation to be agreed. You will most likely also undertake to disclose the amount of profit (if any you made from the use of the copyright work.

If you are quite sure that you are liable, you should take down the infringing work(s) immediately (if this is practicable) and respond outlining the steps you have taken to stop the infringement. Rather than signing the undertakings, you may propose an amicable settlement of the claim. You should write ‘WITHOUT PREJUDICE SAVE AS TO COSTS’ on top of any such correspondence. This means that your communications cannot be produced in Court if proceedings are issued until after a court has determined the question of liability and comes to consider the question of what costs should be awarded. You can propose a sum to compensate the claimant for the infringement, negotiate a period for phasing out the use of the infringing copies of the work (if this is appropriate under the circumstances) and suggest a sum to contribute to the claimant’s legal costs unless you agree to pay the sum mentioned in the undertakings and/or the letter.

However, if you have any doubt about the merits of their claim or you do not feel confident negotiating the settlement yourself and the sums involved justify the expense, it would be   sensible for you to seek legal advice from a solicitor who can handle the settlement negotiations for you.

If the letter or undertakings do not mention payment of compensation or payment of a contribution to the legal costs of the claimant, the claimant’s main objective is clearly stopping you from continuing the infringement. If you are certain that you have used the copyright works without permission and none of the exceptions or other defences apply   it would generally make sense to comply with the requests outlined in the letter. If you don’t respond you risk receiving another letter which then requires you to pay the claimant’s costs and compensation, or even court action which will be much more expensive than dealing with the letter promptly.

Your response to letter no 3:

It is sometimes not easy to determine if such a letter is a scam or genuine. Do not click on any links or pay an invoice or disclose any bank account details until you are sure that the letter is genuine and written on behalf of a copyright holder.

Usually, such letters tell you who the sender is including their address and contact details, for which company (the copyright holder) they are acting, and include details of the unauthorised use you have made of the copyright work (usually in the form of screenshots).

The letter will also give you a breakdown of the legal costs and compensation you are asked to pay to avoid court action. To make this fairly straightforward you are likely to receive an invoice included in the letter or attached to the email. Typically, such letters sent by authorised agents on behalf of copyright holders concern identical works such as photographs or illustrations. The letters usually do not contain details of the copyright holder’s title in the copyright of the work. Since these agents use sophisticated image search technology to scan the internet for identical images used without permission of the copyright holder, it is likely that (subject to the letter not being fraudulent and no defence being available to you) that you are liable to pay compensation and the reasonable cost of enforcement.

You have however options in dealing with such letters:

1. Do nothing.
   This of course risks that the agent will hand over the claim to a solicitor who will then deal with the enforcement. In the worst-case scenario it is followed by court action if you continue to ignore correspondence. However, the business model of the agent is such that they rely on the majority of recipients of such letters paying their invoices without fuss. Enforcing rights is expensive and time consuming. Considering the relatively small sums involved it is hardly worth the expense of instructing a solicitor in another jurisdiction (if you are located in another country than the agent). It is also likely that they will not recover their costs even if they win their claim.
2. Get in touch with the agent and request proof that they are authorized to act on behalf of the copyright holder and seek proof of the copyright holder’s title to copyright in the work. If there is an issue with establishing copyright you may hear nothing further. If evidence is available the cost of supplying it may be added to your eventual ‘bill’.
3. Try to negotiate a reduction of the sum you are asked to pay. Do this in an email or letter headed ‘Without Prejudice’. This is a strategy that is likely to work since from the perspective of the agent a recipient of such a letter paying less is preferable to paying nothing. Again, it helps if you tell them what you have done to cease the infringement and ask them politely to reduce the sum. You may cite exceptional circumstances which make it hard for you to pay the amount requested.
4. Pay the invoice without further correspondence (but please satisfy yourself that the letter is not a scam. If you do an online search of the sender and/or subject matter you may find this out if other people have posted about receiving such letters.