Nonprofits may wish to use copyrighted material in a variety of ways, from a photograph for a printed advertisement to a song played at a gala event. One common misconception amongst nonprofits is that, because they’re nonprofit, they can’t or won’t be sued. That is far from the truth. Nonprofits can and are regularly sued for copyright infringement by other nonprofit organizations, for-profit businesses, and individuals.
Usually the first step when someone is claiming copyright infringement is for the copyright holder to send a cease and desist letter. Such a letter usually contains four things:
- a reference to the copyrighted material and to a U.S. copyright registration, if there is one
- a demand that your nonprofit pay money as a licensing fee for the unauthorized use of the copyrighted material
- a demand that your nonprofit cease and desist any further use of the copyrighted material and destroy any material in your possession, and
- the threat of a lawsuit.
A cease and desist letter is not something your nonprofit wants to take lightly. Copyright lawsuits can cost tens of thousands of dollars just to defend, and then tens of thousands of dollars in damages if you lose the dispute.
So what should your nonprofit do if it’s on the receiving end of a cease and desist letter?
Step One After Getting a Cease and Desist Letter: Stay Calm
It’s easy to get scared and anxious when you receive a cease and desist letter. But it’s important not to panic.
In particular, don't rush to grab a phone and call the person or company that sent the cease and desist. You could wind up incriminating your nonprofit. Take the time to perform further investigation. It may turn out that there actually wasn’t any infringement.
With that said, you don’t want to procrastinate on a response. Most letters will give a short timeframe in which to respond, usually seven to 14 days from the date of the letter. If your nonprofit doesn’t respond during that timeframe, it could receive a second, more threatening letter, or it could receive notice that it’s being sued in federal court.
Step Two: Investigate the Party Claiming Copyright
Your next step is to do some detective work. The cease and desist letter may reference a U.S. copyright registration, which you will want to look up on the U.S. Copyright Office’s website. You will also want to investigate the person or company that sent the letter, as well as his or her attorney. Here are some things to look for during your investigation:
- Does the supposed copyright owner really have a registered copyright? Although copyright protection does not come solely from registration, once a piece of work is registered with the U.S. Copyright Office, the registrant gains many valuable protections. These protections include the ability to sue in federal court, as well as the ability to ask for more money and attorney’s fees after a win. If the cease and desist letter includes information about a U.S. copyright registration, you can use the information to look it up on the Copyright Office’s website. If the registration information is not stated in the letter, you will need to go to the Copyright Office’s website and search for the information there before continuing your investigation.
- Who exactly is claiming copyright ownership? It’s important to research who sent the letter because it will give your nonprofit an idea of who it is dealing with. Anyone can register a copyright, but that doesn’t always mean the copyright is worth a lot. Let’s say the letter is from Joe Schmo Photographer who claims your nonprofit used one of his unlicensed photos in an advertisement. The photograph isn’t that great and he’s not a professional, but it is registered with the U.S. Copyright Office. He’s demanding your nonprofit never use the photo again, and that it pay him $1,000 for using it in the advertisement. The photo is likely not worth $1,000 because, as you found in your investigation, he’s not a professional and the photo isn’t even that good. If your nonprofit didn’t know that information, it might be tempted to bow to his demands, but with that information in hand, you may have more bargaining power. Now let’s say the cease and desist came from Taylor Swift’s attorney, after your nonprofit played one of her songs at an event without a license to do so. Your nonprofit knows who Taylor Swift is, knows how popular her songs are, and knows she’s not messing around. Knowing this, your nonprofit may decide to turn to an attorney due to the high-profile nature of the copyright holder.
Step Three: Decide on an Action Plan
Based on the results from your investigation, you can now determine how to handle the situation. Possible actions include:
- Doing nothing. If your nonprofit received a cease and desist letter, it’s not advisable to do nothing, tempted though you might be. Ignoring a cease and desist letter can be seen as willful infringement, meaning your nonprofit was aware someone was claiming copyright rights, and instead of doing something about it, willfully ignored the issue. This can come back to haunt your nonprofit should the dispute make it to a courtroom.
- Reaching out to the person or company who sent the letter. Your nonprofit may be able to negotiate with the party who sent the letter and work out an agreement. A representative from your nonprofit can explain why and how it used the copyrighted material and that it was an innocent mistake. If the other party is demanding money, your nonprofit can try to negotiate a lower payment due to your nonprofit status, and possibly no payment at all. Just remember that everything you say can be used against you, so be careful what you say, especially if you’re speaking with an attorney.
- Contacting a copyright attorney. If your nonprofit received a cease and desist letter, it’s advisable to contact an attorney before acting. An attorney can shed light on what your nonprofit’s rights are versus the rights of the copyright holder and can advise you on how to best resolve the situation. There are even times that it’s okay to use another’s copyrighted material for free and without a license, and a copyright attorney can explain to your nonprofit whether using the material was okay under copyright laws. If you need to contact an attorney, don’t expect a free consultation. Copyright infringement issues take considerable time to investigate and advise on. Budget for one to three hours of consultation time, plus an additional fee for the attorney to negotiate the dispute.
A cease and desist letter is unpleasant to deal with. Following these steps can help your nonprofit navigate the dispute.