Guides · Copyright Litigation
Before Filing: Demand Letters and DMCA Notices
Most copyright disputes start with a demand letter or a takedown notice, not a lawsuit.
· Law checked through October 21, 2026
In Short
Before sending either, an owner should confirm ownership, registration, and the dates of the infringement, and consider fair use. A takedown notice must contain specific statements under penalty of perjury, and the person whose material is removed can send a counter-notice that restores it in 10 to 14 business days unless the owner sues. Knowingly false notices and counter-notices create liability.
Common situations.
- A photographer finds an image on dozens of websites and wants to send demands.
- A company wants a competitor's copied product description removed from a marketplace.
- A video is taken down after a notice, and its creator believes the use was fair.
- A demand letter arrives from a law firm that represents a photo-licensing agency.
Before sending a demand.
| Check | Why it matters |
|---|---|
| Ownership and chain of title | Only the owner of an exclusive right, or an exclusive licensee, may sue (17 U.S.C. § 501(b)) |
| Registration and its effective date | Required before suit on a U.S. work, and decides whether statutory damages and fees are available (§§ 411(a), 412) |
| When the infringement began | Determines both the limitations period (§ 507(b)) and the § 412 analysis |
| Fair use and licenses | A weak position on these invites a fee award against the owner (§ 505) |
| Evidence | Capture the use with dates and URLs before it is taken down |
| Who the infringer is | A subpoena to a service provider may identify an anonymous infringer (§ 512(h)) |
A demand letter can prompt a declaratory judgment suit in a forum the recipient chooses, if it creates a real and immediate controversy (MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007)). Texas's statute on bad-faith demand letters applies only to patent claims, not copyright (Tex. Bus. & Com. Code § 17.952). See Receiving an IP Demand Letter.
Photo-licensing demand letters.
Photo agencies and their lawyers send large numbers of letters seeking payment for images found online. For the recipient, the key questions are:
- Does the sender own the image, or hold an exclusive license that includes the right to sue?
- Is the image registered, and when? If registration came after the use began, statutory damages and fees are likely unavailable, and the claim is worth the license fee the owner lost or the profits attributable to the use.
- How long and how prominently was the image used, and did it come from a stock service under a license?
See Responding to a Copyright Claim.
Takedown notices.
A notice to an online service's designated agent must include, in substance (17 U.S.C. § 512(c)(3)(A)):
- A physical or electronic signature of the owner or an authorized agent.
- Identification of the copyrighted work.
- Identification of the infringing material, with information reasonably sufficient for the service to locate it.
- Contact information for the complaining party.
- A statement of good-faith belief that the use is not authorized by the owner, its agent, or the law.
- A statement that the information is accurate and, under penalty of perjury, that the sender is authorized to act for the owner.
The designated agent can be found in the Copyright Office's DMCA Designated Agent Directory. The Ninth Circuit has held that a sender must consider fair use before sending a notice (Lenz v. Universal Music Corp., 815 F.3d 1145 (9th Cir. 2016)).
Counter-notices.
A person whose material was removed may send a counter-notice that includes a signature, identification of the removed material and where it appeared, a statement under penalty of perjury of a good-faith belief that it was removed by mistake or misidentification, and the person's name, address, and telephone number with consent to federal jurisdiction and to service by the complainant (17 U.S.C. § 512(g)(3)). The service must then restore the material in not less than 10 and not more than 14 business days, unless the complainant first notifies it that a suit has been filed to restrain the infringement (§ 512(g)(2)(C)).
Liability for false notices.
A person who knowingly materially misrepresents that material is infringing, or that it was removed by mistake, is liable for damages, including costs and attorney's fees, incurred by the person harmed (17 U.S.C. § 512(f)). Misrepresentation claims can also be brought at the Copyright Claims Board. See The Copyright Claims Board.
Choosing a path.
| Path | When it fits |
|---|---|
| Demand letter | The owner wants payment or a license and the infringer is identifiable |
| Takedown notice | The material is hosted by an online service and removal is the main goal |
| Copyright Claims Board | The claim is worth $30,000 or less and the respondent is in the United States |
| Federal lawsuit | The claim is large, the work is registered, or the owner needs an injunction |
Sources.
- 17 U.S.C. §§ 411(a), 412, 501(b), 505, 507(b), 512(c), (f), (g), (h).
- Tex. Bus. & Com. Code § 17.952.
- MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007).
- Lenz v. Universal Music Corp., 815 F.3d 1145 (9th Cir. 2016).
This guide is general information, not legal advice. Law checked through October 21, 2026. See the Disclaimer.