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DEMAND LETTERS
This information is provided for informational purposes only and does not constitute legal advice. (Sorry, gotta put that in for professional licensing reasons). Also, this post is specific to United States law.
There are a few different types of demand letters, which are used to assert your legal rights and make legal claims. You can use these to demand restitution, payment, performance of contractual obligations (and if you think the other party is about to breach the contract, you can demand an “assurance of performance” – basically a request that the other party promise to keep the promises made in the contract), or to tell people to stop engaging in certain behavior, like infringing on your copyright.
Some courts require that you formally demand payment before initiating a lawsuit; other courts do not. Regardless, demand letters can be very useful to artists because they show the other party that you’re serious about enforcing your legal rights; studies show that about a third of disputes get settled based on a demand letter. As an added benefit, you don’t need a lawyer to write one! That’s right, you can prepare your own demand letter and send it to a client (or anyone else) who is violating your contract, infringing on your intellectual property, or interfering with your business opportunities.
The goal of a demand letter is to encourage the other party to assess the situation from a business and risk perspective. It puts the other party on notice that you’re serious and hopefully will make them consider how much time, money, and effort it will take them to fight you, rather than simply do the right thing. If the other side is concerned about public opinion, a demand letter should make them think about the negative publicity that could be generated by a lawsuit (or a complaint filed with the BBB, or your local TV news station, etc.).
I’ll cover two types of demand letters: demands for payment and demands to cease and desist some type of behavior.
CEASE & DESIST LETTERS
Demands to cease and desist are most useful to artists in a few instances: (1) someone is infringing on your copyright (or other intellectual property); and/or (2) someone is defaming or harassing you; and/or (3) someone is intentionally interfering with your business, either by interfering with your client (or prospective client) relationships or interfering with your ability to perform on a contract.
Preparing the Letter
As with any type of demand letter, the first step in preparing a cease and desist letter is thinking carefully about your situation. What facts, laws, and evidence will you need to prevail in court? All of that information should find its way into your demand to cease and desist. You want to write a complete record of the initial dispute and any subsequent communications with the other party, or inappropriate conduct by the other party. While it’s important to properly document your dispute, it’s also important to be as concise as possible. The demand letter should be as short as possible while stating your case. Even attorneys try to keep demand letters to one or two pages, and we are verbose windbags by nature.
As with any type of demand letter, your cease and desist letter should be politely professional. This means you must type the letter, run a spell check and grammar check, and maintain a polite (if a touch icy) tone. Keep in mind that if you have to go court, the judge will read your cease and desist letter. It should be a letter that puts you in the best light possible while accurately stating the facts and the evidence that supports your point of view.
Structure of the Letter
There is no specific structure required. I recommend using typical letter format but adding a “Re:” line after the address and before the salutation. For example, “Re: Demand to Cease & Desist Copyright Infringement” or “Re: Demand to Cease and Desist Tortious Interference with Business.”
Demands to cease and desist typically include: (1) a history of the dispute, including the facts that support your case; (2) references to any laws that the other party is violating; (3) a request for a specific resolution and (4) a statement that you intend to “promptly pursue any and all legal remedies” if your demand is not met within a specific amount of time.
The request for a specific resolution is important! You need to ask for exactly what you want. Demand letters for payment are a bit more obvious in this respect, because your contract specifies an exact amount (in legalese, a “sum certain”). Think about how you’ve been wronged and what will set it right. If someone is using your map without your permission, you may want to demand that they immediately stop using it, period. Or you may want to demand that they pay you for a license and/ or credit you as the artist. If you’ve also lost money because someone infringed on your copyright, you can ask for monetary damages to make up for your loss. If the person who used your map without your permission made a profit on it, you can demand that profit.
Most cease and desist letters are going to be a simple “knock that **** off,” but really think it through and assess what damage was done to you, your business opportunities, and your artistic reputation. If all you want is for the person to stop using your map, think about monetary damages anyway. They can be a negotiating point, where you offer to not sue for damages to which you’re entitled in return for the other party knocking it off, permanently.
The deadline is also important! You want the other party to know that you mean business. You want to motivate them to deal with you quickly. I recommend giving a deadline of no more than ten (10) business days. (You should specify business days or calendar days. A calendar day deadline arrives faster because it doesn’t get put on hold for weekends or holiday closures. If you do not specify business days, the law defaults to calendar days.) And do say that you will “promptly pursue any and all legal remedies” if your demand is not met within a specific amount of time. And then pursue those legal remedies, if you can. If a demand letter does not prompt a settlement offer, there’s a good chance that filing a complaint (step one of a lawsuit) will. Around 90% of my pro bono cases (for artists) have settled after a demand letter; the remaining 10% have settled after filing a very basic complaint in small claims court. You do not need an attorney for either of these steps.
In some situations, you may want to include (on a separate page) a very short settlement agreement. In a settlement agreement, you agree to release the other party from all claims (meaning you won’t sue them) if they comply with your demand.
Copyright Infringement
This is a rare legal field where the law is the same throughout the United States! You won’t need to look up state-specific laws because copyright is granted by the federal government.** The statute (law) is 17 U.S.C. §§ 106 and 106A. (In actual language, that’s Title 17 of the United States Code, Sections 106 and 106A.) Section 106 gives artists the exclusive rights to produce copies of their work (for sale or any other reason), make derivative works, and display the work publicly. “Exclusive” is the key word here, because it allows the artist to legally prohibit anyone else from copying, displaying, etc. his/her artistic work. You, as the artist, can assign or license those rights as described in my earlier post.
Section 106A gives artists who create visual works (like all of you) some additional rights. You have the right to claim authorship of the work and prevent your name from being used on works that you did not author. You can also prevent any “distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation.” Section 106A rights always belong to the artist/author. Even if you have assigned your rights and are no longer the owner of the copyright, you still have the rights granted by Section 106A.
**Obviously this is US law only. But the European Union, Mexico, and commonwealth nations provide similar rights and possibly some additional rights.
Harassment, Defamation, and Tortious Interference with Business Relationships
A quick reminder: “The Law” breaks down into (1) criminal law and (2) civil law. Criminal law is pretty easy to recognize – it’s all over TV. Civil law is for everything else and breaks down further into (a) contracts law, (b) tort law, and (c) administrative law. Forget that last one because it’s about government regulations. Everything we’ve discussed so far has been contract law where you and another party specifically agreed to an exchange of benefits (you get money, your client gets a map).
There is also tort law. In legalese, a tort is “an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.” In English, someone does something that causes loss or harm to someone else. Lawsuits over injuries from car accidents are torts, but you don’t need a physical injury to sue in tort. Injury can be emotional, economic, or reputational, or the result of an invasion of privacy.
The main tort claims for artists are defamation, harassment (sadly this seems to be more of an issue for female or non-binary artists), and interference with business (sometimes called interference with contracts). Defamation is an attack on your reputation, via slander or libel. You can remember the difference between the two because Slander is Spoken. Every other type of defamation is libel.
In every state, it is unlawful to engage in defamation of someone’s character and reputation. If you need to write a cease and desist letter for defamation, you’ll need to find your state’s law. It might be a statute (enacted by your state’s legislature) or it might be a court case (issued, probably, by your state’s highest court). Google and Google Scholar can probably find it for you. Many states have defamation per se laws, which means the statements are inherently defamatory. You don’t have to prove any physical or economic injury.
Almost all states have criminal laws that prohibit using “electronic communications” to harass and defame people. If you’re being harassed via social media, it doesn’t hurt to remind the harasser that they are violating these laws, and thus committing a crime.
Interference with business relationships (sometimes called malicious interference or tortious interference with business) is behavior that maliciously or wrongfully interferes with your economic relationships in the absence of a breach of contract. Many artists now rely on social media and other websites to promote their work and the law recognizes this. For example, perhaps you sell your works on DriveThruRPG or you post ads on Facebook. If a competitor starts lobbying hard to get DriveThruRPG to ban your work, or flags your ads as abusive on Facebook, they are interfering with your business relationships. If they don’t have a right to do that (your work complies with DriveThruRPG’s requirements, your ad is perfectly appropriate), you can demand they knock it off. If someone is consistently reporting your posts as abusive or inappropriate, and the posts are not either of those, that can also constitute tortious interference with business relationships.
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