By: Boran Ding

In the first post of this series, we discussed what you can do if you receive a DMCA takedown notice with regards to content you post on YouTube and Instagram. In this post, we will discuss what you can do if instead, you receive a cease and desist letter (“C&D”)

A C&D generally does two things – inform you that you have allegedly infringed on the intellectual property of the sender, and ask that you stop your actions or potentially face legal action. There are a variety of IP infringements that may give rise to a C&D letter, including alleged violations of the right of publicity, right of privacy, copyright and trademark. You may be wondering whether a C&D letter is enforceable. Since the letter is not a court order, it is not legally enforceable on its own. As a result, there are no immediate legal repercussions of non-compliance. However, you probably should not ignore a C&D because ignoring the letter runs a strong risk of escalating the situation and pushing the sender to start legal proceedings against you. This is especially true if the C&D letter comes from a law firm rather than from the rightsholder themselves, as the hiring of an attorney indicates the sender has already financially invested in protecting their IP, and may indicate they are more serious about initiating legal proceedings in the case of non-compliance. It’s not all bad, however – a C&D letter can also be an opportunity for you to negotiate with the sender if you really are interested in using their content.

Before you decide what to do, it’s important to first make sure that you have actually received a C&D letter. C&D letters don’t have to follow a specific format, especially if they’re not sent by legal professionals. However, they do generally have certain features in common, such as the use of the phrase “cease and desist.” C&D letters will also often outline the alleged infringement in detail and include references to the sender’s IP rights, such as the copyright or trademark registration number. Additionally, the letter may also include a list of demands and a deadline for compliance.

Once you’ve determined that you have, in fact, received a C&D letter, it’s important not to respond immediately without careful consideration of the possible consequences, as any comments you make could be used against you in the case of future litigation. Thus, you should avoid publicly discussing the contents of the letter or your reaction to it, especially online. You should also keep a copy of the letter in case you need it for future litigation. Finally, you should evaluate whether the sender actually has the IP rights they claim to have, whether their infringement allegations are valid, whether you have any reasonable defenses to the allegations, and how likely it would be for those claims to succeed in court.

You may receive a C&D in response to a variety of potential infringements, including infringements of the right of publicity and right of privacy, as well as copyright and trademark infringement. In the next two posts in this series, we will discuss each of these infringements in turn and potential defenses you may have in response to each.