Legal Question in Intellectual Property in California

I have a website that uses bits and pieces of copyrighted material. (The website is not live yet.)

I believe that my use of this material falls under Fair Use.

Even though I believe my use of the material falls under Fair Use I still plan on immediately obeying any cease and desist notices I may receive.

My question is are copyright owners required to first send me a cease and desist?

Or can they skip the cease and desist and go straight to suing me?


Asked on 9/12/12, 10:15 pm

1 Answer from Attorneys
Jim Betinol Withrow and Betinol Law

There is no requirement of allowing an infringer a getaway free card prior to recovering damages caused by an infringement. Damages can be lost profits or statutory damages. So whether or not you receive a cease and desist, or even if you comply with cease and desist that you may receive, the infringer can still attempt to recover the damages I stated above.

Although the Fair Use defense can be a strong defense against copyright infringement, this sort of defense is factually based and depend on a number of factors. It is not a black and white application of the rule.

For these reasons, I believe you are likely opening yourself up to a possible lawsuit. Be very careful.

Best,

Jim Betinol

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Answered on 9/13/12, 12:02 am


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