The final letter before proceedings

What the letter is

From the covering email

The letter sets out the basis of the claim, the evidence we hold, our settlement proposal and the information we need from you.

It comes with the evidence dossier and a pro-forma settlement invoice.

Its title depends on where you are

The letter names the law and the courts that apply where you are, and its title follows:

Some letters carry a different title:

• Letters to Canada are headed “Formal Copyright Demand”, and letters to Australia “Formal Letter of Demand”. They are final letters too, and set out their own response period.
• Letters in other languages carry their own title: Letzte außergerichtliche Zahlungsaufforderung (German), Formele sommatie (Dutch), Formelt kravvarsel (Norwegian), Formellt kravbrev (Swedish) and 著作権侵害に関する正式通知書 (Japanese). The dates and wording in your own letter are the ones that apply.

In England and Wales the letter adds:

From the Letter Before Claim

This letter is sent in accordance with the Practice Direction – Pre-Action Conduct and Protocols. The court may take a failure to respond, or to consider alternative dispute resolution, into account when it decides costs and interest.

Final letters in the same form to Scotland, Northern Ireland, Ireland, the rest of Europe and most other countries outside the Americas say instead:

From the final letter

This letter gives you formal notice of the claim and a final opportunity to resolve it before proceedings are issued.

79 Pixels’ role

From the final letter

79 Pixels, Inc. is authorised by [the photographer] to correspond concerning licensing, settlement and enforcement administration in relation to the photograph. Under that authority, 79 Pixels, Inc. is entitled to determine what action should be taken in the event of infringement and to conduct any claims or proceedings. The rights and authority relied upon are summarised in the attached evidence dossier.

The Creative Commons position

From the final letter

On the information currently available, you have not complied with the conditions of the Creative Commons Licence, and no separate licence has been identified between you and [the photographer] or 79 Pixels, Inc. Accordingly, you do not have, and have not had, the benefit of the Creative Commons Licence or of any other licence.

Creative Commons: free, with conditions sets out what the licences require, and what adding a credit later does and doesn’t change.

What your reply should cover

From the final letter

Please provide a substantive response by [the date in your letter]. Your response should include:

1. whether you accept or dispute the alleged infringement;
2. if you dispute liability, the factual and legal basis on which you do so;
3. any licence, invoice, written permission, email permission, CMS record, agency record, contractor record or other document on which you rely;
4. the date the Photograph was first uploaded or published on Your Website and, if it has been removed, the date of removal;
5. whether the Photograph appears elsewhere on your domain, subdomains, social media, PDFs, brochures, newsletters or other materials under your control;
6. your position on the proposed settlement; and
7. whether you are willing to engage in alternative dispute resolution.

Talking instead of litigating

From the final letter

79 Pixels, Inc. is willing to consider a proportionate resolution short of proceedings, including written negotiation, a short without-prejudice call or another suitable form of alternative dispute resolution. Please indicate in your response whether you are willing to engage in any such process.

A “without-prejudice” call is a conversation held in an attempt to settle. Alternative dispute resolution means ways of resolving a dispute without going to court, such as negotiation or mediation. If you would like either, say so in your reply.

The settlement proposal and the photograph

The letter sets out the sum that would resolve the matter and how it is made up. Our standard licence rates are published separately in our rate card.

From the final letter

Settlement on the terms proposed would resolve past use only and would not authorise future use. Unless a forward-looking licence is expressly agreed in writing, the Photograph should be removed from Your Website and from any other materials under your control.

What happens next

From the final letter

If no substantive response, no licence evidence and no acceptable settlement proposal is received by [the date in your letter], [where proceedings may be issued (see below)]

Where proceedings may be issued, as the letter states it (the letter names the claimant):

Letters to the United States

The Demand Letter Prior to Litigation asks for a response within the period it states — 30 days where the invoice is in US dollars:

From the demand letter

Please provide a substantive response within [the period in your letter] of the date of this letter.