CEASE-AND-DESIST LETTER · COPYRIGHT
Copyright Cease-and-Desist Letter -
Check First, Then Respond
An image, a font, a piece of text, a line of code: In companies, copyright infringements almost always happen by accident. A cease-and-desist letter arrives nonetheless—and it is by no means always effective.
Known for:
Four numbers that determine the outcome
Before discussing the injury itself, these four points determine just how strong the opposing team actually is.
4
A copyright cease-and-desist letter must contain certain required information. If any of this information is missing, the letter is invalid—with consequences regarding costs.
0
Fault is required for a claim for injunctive relief. “I didn’t know” doesn’t help in this case—but it certainly does when it comes to damages.
3 years
The statute of limitations for injunctive relief and damages begins to run at the end of the year in which the rights holder became aware of the infringement.
10 years
Residual damages pursuant to § 852 of the German Civil Code (BGB). Even after the standard statute of limitations has expired, any profits derived from the use must still be surrendered.
WHAT IT'S ALL ABOUT
Almost never intentional, almost always expensive
Copyright infringements within a company rarely result from malicious intent. A stock photo license covers print but not social media. A service provider delivers a layout using a font for which no one has purchased a web license. A text is copied from an old brochure whose author has long since left the company.
This makes no difference when it comes to the right to cease and desist—that applies regardless of fault. But it certainly matters when it comes to costs and damages. And even before that, there’s a question that many people overlook: Is the cease-and-desist letter even valid?
An invalid cease-and-desist letter does not undo the legal violation. However, it deprives the opposing party of its right to reimbursement of attorneys’ fees.
THE DECISIVE STANDARD
What Must Be Included in an Effective Cease-and-Desist Letter
Copyright law imposes specific requirements on cease-and-desist letters—requirements that are stricter than many senders realize.
§
IN PLAIN LANGUAGE
Four required pieces of information. If the party issuing the cease-and-desist letter is not clearly identified, if the infringement is described in general terms, if damages and attorney’s fees are combined into a single amount, or if there is no indication that the attached cease-and-desist declaration goes beyond the specific allegation—then the cease-and-desist letter is invalid. The consequence is set forth in paragraph 3: The party issuing the warning letter will not be reimbursed for their attorney’s fees. Whether you can also recover your own defense costs depends on paragraph 4 and varies on a case-by-case basis.
The last point is most often overlooked: The attached cease-and-desist letters are almost always broader in scope than the specific allegation. That is precisely when it must be pointed out.
THE FIRST EXAM
Who is actually authorized to issue a warning?
Not everyone who sends a letter is actually authorized to do so. This is the quickest way to check—and it resolves more cases than you might think.
The author himself
The photographer, the designer, the copywriter. It must be verified whether the person actually created the work and whether the rights have not already been transferred.
The exclusive licensee
Anyone who has an exclusive right of use may act on their own. A simple right of use is not sufficient for this—and this is precisely where claims are often overstated.
The Legal Successor
A publisher, photo agency, catalog purchaser, or heir. In such cases, it must be fully documented how the rights were transferred from the author to the sender—the longer the chain, the more likely it is that a link is missing.
The key point: It is up to the party issuing the warning to demonstrate its entitlement—not up to you to refute it. Many letters contain only a single sentence to this effect—that the sender is the “owner of the rights.” That is not enough. It often turns out that only a simple right of use exists, and no one can take action on their own authority based on that alone.
This verification, therefore, comes right at the beginning. It works without having to dispute the substance of the allegation—and it resolves more cases than one might expect.
Contact
How to Reach Us
Choose the option that works best for you—we'll get back to you quickly.
Schedule an appointment
Right in our calendar—select your preferred date
What'sApp
Quick Questions, Quick Answers
Phone
Available directly Mon–Fri
Write to us about what's on your mind
THE TIME FRAME
From Service to the Statute of Limitations
Two deadlines run concurrently: the shorter one specified in the warning letter and the longer one set by law.
DAY 0
Writing at Home
Save the cover and date. Document the content you've used before it goes offline.
DAYS 7–14
Deadline
The usual timeframe. It's kept short, but can be extended—a phone call is often all it takes.
AFTER THAT
An expedited proceeding looms
Once the deadline has passed, a motion for a preliminary injunction is typically filed.
3 YEARS
Statute of Limitations
Calculated from the end of the year in which the rights holder became aware of the infringement and the infringer.
10 YEARS
Residual Damages
§ 852 BGB. The benefit derived from use must still be returned, even if the standard statute of limitations has expired.
The deadline in the warning letter is set by the other party, not by law. It can almost always be extended—but only if you don't let it pass.
FROM PRACTICE
Where this typically happens within a company
Four scenarios that we encounter time and again.
The license covers less than expected
Stock photos are a classic choice. The license you purchase applies to the website—not to social media, not to print, and not to sharing with partners. Anyone who expands their use of the images is exceeding the scope of the license—and, from a legal standpoint, is in the same position as if they had no license at all.
Fonts in a Web Project
I purchased a desktop license but embedded the font as a web font. Foundries can easily detect this automatically, so they systematically issue cease-and-desist letters.
The service provider has delivered
An agency or a freelancer may have provided the material. Nevertheless, you are still liable to third parties—any recourse against the service provider is handled separately and depends on the contract. That is exactly why we always examine both relationships.
Reused Text and Code
Product descriptions from other stores, boilerplate text from old documents, and open-source libraries used without complying with the license terms. License violations involving open-source software also constitute copyright infringements.
GET STARTED NOW
Received a warning letter at work?
Talk to us.
Attorney Patrick Rehkatsch has been a certified specialist in copyright and media law since 2010. During a no-obligation initial consultation, we’ll determine whether we can take on your case and what the consultation will cost. The substantive review—including the validity of the cease-and-desist letter, the sender’s authority, and the appropriate response—will then take place during the consultation.
THE REACTION
What to Do Now
Use is immediately halted, regardless of the outcome of the investigation. At the same time, a record is kept of what was actually used, to what extent, and over what period of time. This information will be needed later for any negotiations.
After that, the course of action depends on three questions: Is the cease-and-desist letter valid under Section 97a(2) of the German Copyright Act (UrhG)? Was the sender authorized to issue it? And does the attached statement correspond to the allegation—or does it go beyond it?
What to Expect Next
The attached cease-and-desist declaration is the most dangerous part of the warning letter. It comes from the opposing party’s attorney, binds you for thirty years, and almost always covers more than the actual allegation.
Why you should never sign the original
The amount demanded is the opposing party’s estimate, not a court ruling. The amount in dispute can almost always be challenged—and for certain violations, you do not owe the opposing party’s attorney’s fees at all.
How costs and the amount in dispute are calculated
If damages are claimed, they’re usually calculated using the “license analogy”: what a proper license would have cost. There are two other methods of calculation, and the choice makes a significant difference.
How damages are calculated under Section 97 of the German Copyright Act (UrhG)
Frequently Asked Questions About Copyright Cease-and-Desist Letters
This does not apply to the claim for injunctive relief—which applies regardless of fault. However, it does play a role with regard to damages and costs. That said, the due diligence requirements are strict: Anyone who uses another person’s works must first ascertain the protection status and scope of their own rights.
The four requirements set forth in Section 97a(2) of the German Copyright Act (UrhG): clear identification of the party issuing the warning, precise description of the infringement, a breakdown of the payment claims into damages and reimbursement of expenses, and a reference to an overly broad cease-and-desist declaration. Most commonly, either the breakdown or the reference is missing.
Externally, yes. Anyone who uses the work on their website or in their advertising is liable to the copyright holder. Whether—and to what extent—you can recover those costs from the agency is a separate issue and depends on the contract. We’ll go over both of these together.
This may apply to statutory claims, which are subject to a three-year statute of limitations, calculated from the end of the year in which the claim was discovered. However, under § 852 of the German Civil Code (BGB), a claim for the return of what was obtained remains valid, and that claim has a significantly longer statute of limitations. The statute of limitations is therefore a factor, but rarely the only one.
No. Deletion does not eliminate the risk of recurrence—that generally requires a cease-and-desist declaration. And the rights to information and damages for past events remain unaffected by this in any case.
The no-obligation initial consultation is free of charge. During this consultation, we’ll determine whether we can take on your case and what the consultation will cost—we do not provide a legal assessment at this stage.
Consultation fees start at €250 plus VAT, and the review of more extensive documents starts at €500 plus VAT. If we subsequently agree to represent you, we’ll apply the cost of the initial consultation toward our fees.
The right to be forgotten primarily protects individuals. However, companies can defend themselves against false or defamatory content through corporate personality rights and injunctive relief. We’ll discuss which approach is right for you during our conversation.