Demand Letters: How to Deal With Them

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.

Schumer Proposes to Bring Fashion Under Copyright

In an effort to discourage knock-offs of designer clothing, U.S. Senator Chuck Schumer (D-NY) introduced legislation in August that would provide fashion designers with limited intellectual property protection. Schumer’s view is that with the legal support offered by the Innovative Design Protection and Piracy Prevention Act,  the fashion industry’s revenue and jobs would stay safely in New York.

Despite the fact that counterfeiting products of any type is already illegal—those guys on Canal Street hawking $25 Louis Vuitton bags have always had to pack up and run when they sight a cop—the proposed legislation is unnecessary and even harmful.

Copyright protects original expression, but does not protect useful objects. For example, if you create an original sculpture, it is copyrightable; if you drill a hole through that sculpture and wire it to make a lamp, the lamp is not copyrightable. And while some of the freakish get-ups worn by the models on the Fashion Week runways may strain the definition of “useful object,” they are indeed articles of clothing and therefore fall within the category of useful objects.

Schumer’s legislation further complicates matters by limiting its protection only to those designs designated “extremely unique and extraordinary,” which must feature distinguishable “non-trivial and non-utilitarian variation” from previous similar articles of clothing. Details such as fabric patterns or colors cannot figure into the mix, and a litigant would have to prove that the offending design is “substantially identical” to his or her own.  Under those conditions, Tim Gunn is going to have be our next Supreme Court appointee.

Why this new standard should be injected into copyright law is in question as well. “Uniqueness” is a term used in patent law that has never been applied to determine eligibility for copyright. Originality is what earns you a copyright, and it has to nothing to do with producing a groundbreaking design. Originality merely means you did not copy it from anyone else. Compelling copyright to bear a burden it never has before, at a time when intellectual property rights are under fresh attacks daily, will erode the concept of copyright even more dramatically.

It is not clear why the Senator, along with the Council of Fashion Designers of America and American Apparel and Footwear Association, who worked with him on the legislation, is so convinced clothing designers need this protection now, when they never did before. The fashion industry has survived—and thrived—for decades in New York City without such protection.

The legislation is being touted as balancing the need to protect innovation in the fashion industry with keeping clothing “affordable.” But there is no reason to believe that the proposed intellectual property rights will reduce the prices of the designs they protect. If anything, those reaping the benefits of this superfluous arm of IP law are likely to be the wealthiest and most successful designers, who are the only ones likely to be able to take advantage of the suggested new restrictions on such copying.

But there would be others who would feel a negative effect if the legislation passes: the city’s countless other creative professionals, who rely on the law as it exists to safeguard their work. They don’t need their protections, or the process of proving infringement, made more difficult by needless tinkering with the standards of copyright protection.

Graphic Artists Guild sues IPA Leaders.

The Graphic Artists Guild has filed a defamation suit against several people associated with the Illustrators Partnership of America (IPA).

One would think that illustrators would support the Guild in its effort to quash false or misleading statements by other would-be industry spokesmen.  Nobody who has ever had dealings with the legal process can think such a decision was lightly undertaken; lawsuits are expensive and unpleasant at the best of times–and the Guild has a well-earned reputation for lengthy deliberation before taking action. Who would not want to ensure the unquestioned veracity of those who claim to speak for them?

But one would be wrong. The IPA quickly produced a website containing a plaintive press release and an accompanying petition, which it is encouraging artists to sign to persuade the Guild to drop its suit.  Surprisingly, this petition has actually obtained signatures.

Had it been possible to resolve this dispute without a lawsuit, the Guild would surely have chosen that route.  That the Guild would nonetheless take such a drastic step should be a signal to illustrators–including those who have signed the petition–that something may be very much amiss with some of the industry’s would-be spokesmen.  Is defamation really forgivable when it is done by the Right People?

Illustrators approached to sign this petition should recognize that demanding the Guild drop the suit without knowledge of the evidence is, in effect, demanding that the defendants be given the right to lie without being challenged–whether the defendants actually have lied or not.

Whether the Guild can prove its allegations remains to be seen.

Infringement Transforms into Lawsuit

Life can be a bee-otch for film companies when they don’t secure the rights to copyrighted material. Read about the suit against Dreamworks SKG and Paramount Pictures, Inc. in the New York Post.

Giant Robots

Egyptian Parliament Seeks to Copyright Pyramids

A bill being considered by the Egyptian parliament would copyright the pyramids, scarabs, and other antiquities. Aside from being at odds with the concepts of authorship and public domain, it appears that the Egyptians are unfamiliar with the concept of “Pharaoh use.” 

RIAA Enforcement Update

It appears that the new RIAA suit is, in fact, over illegal downloading, not over recording off legally-purchased CDs.  But the RIAA may be trying to push the envelope a little.

RIAA Renews Action Against Music Copying

The Recording Industry Association of America (RIAA) was much vilified for its suits a while back against random file-sharers who were distributing copyrighted music. Now it appears that the RIAA is proceeding against people who have copied legally-purchased CDs onto their own computers.

The question is, how did the RIAA find these people?  Were they, in fact, engaging in file-sharing–or is there a code on the CDs in question which tipped the RIAA off?  Something is not being fully reported here. 

1. What is a copyright?

Copyright is a federally granted property right which gives the author (creator) of a work the exclusive right to reproduce, distribute, perform, or display the work, or create derivatives (other works based on the work), or to permit others to do so.

2. What does copyright protect?

Copyright protects such forms of intellectual property as artwork, writing, music, film and other audiovisual works, choreography, and computer code. A copyright protects the expression of an idea. It does not protect the idea itself.

3. How is a copyright different from a trademark?

Copyright protects a work from being copied without permission, while a trademark protects against a competitor using the work in commerce to indicate the source of goods or services.