Copyright Infringement: When Should You Send a Legal Notice?

Discovering that your original work, whether a photograph, article, design, musical composition or software code, has been used without your permission can be both frustrating and damaging, particularly where it affects your business.

One of the most effective early tools available to a copyright owner is a legal notice (also known as a letter of claim, letter before action, or cease-and-desist letter). Knowing what counts as infringement, when a legal notice is the right move, and what it can actually achieve can help you take informed and confident action to tackle the situation.

What counts as copyright infringement?

Copyright automatically protects original literary, dramatic, musical and artistic works, from the moment they are created in fixed form. As a copyright owner, you hold the exclusive right to copy the work, issue copies to the public, rent or lend it, perform or show it in public, communicate it to the public (including online), and adapt it.

Infringement occurs whenever someone carries out any of these acts, in relation to the whole work or any substantial part of it, without your licence or consent. This covers a broad range of everyday scenarios: a competitor copying substantial passages from your website, a business using your photographs in its marketing without a licence, or someone reproducing your designs, code or written content elsewhere online.

A common myth is that copyright infringement can only happen when the copy is exactly the same; however, a close reworking of a substantial part of the copyright can be enough to constitute infringement.

Signs it is time to send a legal notice

• You have clear evidence of copying, such as identical or near-identical content, matching design elements, or a verifiable trail showing your work was taken and used without permission.
• The unauthorised use is commercial or causing you tangible harm, for example undercutting your sales, damaging your reputation, or diverting customers or opportunities away from you.
• Informal attempts to resolve the matter, such as a polite email or phone call, have failed or been ignored.
• The infringement is ongoing or repeated, as opposed to an isolated, quickly-corrected mistake.
• You are preparing for the possibility of court proceedings, since the party bringing a claim is expected to have first exchanged sufficient information with the other side to understand their position, attempt settlement and support the efficient conduct of any later proceedings.

What does a legal notice achieve?

A well-drafted legal notice puts the infringer on formal notice of your rights and of the specific infringing conduct, and typically demands that they stop the infringing activity, remove or destroy infringing copies, and, where appropriate, compensate you for the harm caused. This creates a clear evidential record showing that you acted promptly and reasonably, which can matter later if the dispute escalates.

A notice can also prompt an early, cost-effective resolution; many people will stop the infringing conduct upon receipt, avoiding the time, cost and uncertainty of litigation.

If the matter does proceed to court, remedies available to a copyright owner include damages, an account of the infringer’s profits, injunctions to stop further infringement, and orders for the delivery up or destruction of infringing copies. A carefully worded notice is often the first step toward securing this kind of protection without needing to go that far.

Seek legal advice before taking action

If you believe your copyright has been infringed, speak to a member of our specialist team, who can assess the strength of your claim, draft a notice tailored to your situation, and guide you through what happens next.