Most people who are unfamiliar with the process imagine that when legal troubles arise, you go directly from a life of peace and quiet to being enmeshed in the midst of litigation. But that’s not usually the case.
Some time back, I was hired by an agent to defend her client after the artist received a demand letter. The artist, who was producing covers for a series of young-adult books whose hero was a horse, had used a horse photo for picture reference. Despite the changes the artist made to the picture—altering the color of the animal, and the background—the horse’s owner claimed the picture belonged to her. Her letter demanded a payment of $10,000 for the alleged copyright infringement. To avoid upsetting the publisher of the series, the artist and agent wanted the matter settled rapidly.
Typically, before you find yourself in the middle of a lawsuit, you’ll have prior warning in the form of a cease-and-desist, or demand, letter, similar to the one this artist received. Such letters—usually, but not always, from a law firm—state the situation in the most dire terms possible. They’re meant to intimidate the recipient into complying as quickly as possible with the letter’s demands, to avoid further problems or compelling the plaintiffs to proceed to litigation.
If you’re the recipient of a demand letter, the most important thing you can do is not panic. The letter’s language is designed to elicit that reaction—don’t give the sender the preliminary victory of doing so. It may be necessary for you to hire an attorney to write a response, but you can alleviate some of your worry by first looking for any vagueness or exaggerations in the letter. You can easily discern the holes that are sure to be there.
The most encouraging aspect of the horse-picture demand letter was the very thing that was intended to sound the most terrifying: the demand for a $10,000 payment. That was because the adversary had both locked herself into a figure she expected to receive, and indicated by the sum that she probably had no leg to stand on—which proved to be the case.
Ultimately, the demand was settled for a fraction of what the claimant initially demanded, and the relationship between the artist and publisher was saved. No litigation was necessary.
As frightening as a demand letter may seem, you’re equipped to evaluate whether its threats have validity, even before you contact an attorney to address them.