Copyright cease and desist letter for stolen product photos: template and when it is the wrong tool

When a letter is the right tool

Four things have to be true at once. The first is that the copy is your photograph and not your product. Copyright gives an owner a short list of things only they may do with a photograph: copy it, publish it, adapt it and distribute it. A copied listing takes two of them, reproduction at 17 U.S.C. § 106(1) and public display at § 106(5). The Ninth Circuit held in Ets-Hokin v. Skyy Spirits (2000) that a commercial product shot is an original work of authorship, on the treatise view that a photographer's choice of subject, angle, lighting and timing is originality enough. A copycat store usually takes the photograph, the product design and the name in one go, and of the three the photograph is the strongest and fastest claim, because it exists the moment you press the shutter. If what was taken is your name or logo, the trademark version of this letter is the one to send, with sorting a stolen photo from a copied name for the cases that give you both.

The second is that nobody else can act. A takedown notice works because 17 U.S.C. § 512 gives the hosting provider, the company whose servers the copy sits on, a reason of its own: act promptly on a valid notice and it keeps its safe harbor, the shelter from liability for what its users post. Section 512(c)(3)(A) lists the six things that notice must contain and names its recipient, the provider's designated agent. A letter has neither a form nor a statutory recipient.

The third is that you can name and reach the recipient. The fourth is that they have a business worth keeping. A cease and desist letter is not legally binding: no statute makes the recipient answer it, and no court has ordered anything at the point you send it. So it works on someone with an address and revenue on the line, and does nothing to a seller who never opens it. Where all four hold, the letter is the only route that gets you paid and puts the other side on the record.

How to write a cease and desist letter, clause by clause

Every clause has its own way of failing. Write assuming a stranger who is not on your side reads it twice.

• The header, the delivery block and the Re line. The settlement header labels the letter as an opening offer and shields nothing you write underneath. Name both delivery methods in the letterhead, because the certified-mail line is your record of the date they knew, for the reason in how to send it. In the Re line, name your company and the words "product photographs", so the letter survives a spam filter.
• 2. The photographs. The clause the letter stands on, and where most founders are wrong. An employee's shots belong to the company from the moment they are taken, under 17 U.S.C. § 201(b), and whether someone is an employee turns on the working relationship rather than the word used in the contract. A freelancer's shots do not: § 204(a) makes a transfer invalid unless it is in a signed writing, so an invoice or the fact that you paid for the shoot moves nothing. A founder who shot the catalog personally is the author personally, and the company needs the same signed assignment a freelancer would give it.
• 3. What you are doing. Exact URL, listing number, date seen, which images, then the similarity, because that sentence closes off the defense you are most likely to meet: two people can photograph the same product and both own their picture.
• The work-for-hire trap in clause 2. A commissioned shoot is a work made for hire only if it clears four cumulative conditions in the Copyright Office's Circular 30, and the first is that it falls inside one of nine listed categories: a contribution to a collective work, part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas. The circular adds that a work failing any of the four requirements is not a work made for hire. Read that against a product shoot.
• 5. What you ask for, and the money ask most templates skip. The accounting turns a takedown into a negotiation, because § 504(b) gives you the infringer's profits and puts the burden on them: you prove their gross revenue, they prove their deductions. The opposite ask is open to you too, a retroactive license, where you charge for the use that already happened instead of demanding it stop. Copying and public display are yours to license, so a settlement figure that closes the matter on payment belongs here. The last line keeps you honest: the letter is about the photographs, not their right to sell their own product.
• 6. If we do not hear from you. Say only what you will actually do. Section 412 bars statutory damages and attorney's fees for copying that began before your registration took effect, unless the registration landed within three months of first publication. Product photographs go live the day the product does, so that window is usually shut by the time you find the copy. If it is, delete the bracketed sentence and say the true thing: their profits, your damages, an order to stop.
• 7 and 8. Reservation, signature and exhibits. The reservation keeps your deadline from reading as a waiver, and telling them a copy goes to the host today is the half that does the work. The offer to settle by email this week is deliberate: it gives a recipient who wants to comply a cheap way to do it.

When the letter is the wrong tool

Seven cases. The first covers most readers of this page.

• The copy is a marketplace listing. A valid report removes the listing without the seller agreeing to anything, which is the one thing a letter can never do, and it needs no registration. On eBay, Amazon, Walmart and Etsy, the four sites carrying nine in ten of the listings we counted, the report is filed by the rights owner rather than by a shopper flagging a listing, and the report route for each of those four sites is on its own page. What belongs in a DMCA notice, line by line is the wording. Its one real cost is the counter notice, and that clock is in the table below.
• The photographs are not registered. Not a reason to skip enforcement, and a good reason to edit the letter. A cease and desist letter with no registration behind it is a request, not a threat, because § 411(a) bars the lawsuit until a registration issues, and the Supreme Court held in Fourth Estate v. Wall-Street.com (2019) that registration occurs when the Copyright Office acts, not when you file. You can still truthfully threaten actual damages, the infringer's profits and an injunction, none of which § 412 touches. The cheaper move is to register the photos before the copy shows up.
• The photographer owns the photographs. Paid, delivered and used is not owned, and without a signed assignment the claim is the photographer's to bring. The fix is one page and it can be signed tonight. Section 204(a) wants a writing signed by the person transferring the copyright: name the shoot, describe the photographs, say the copyright in them is assigned to your company, date it, and get the photographer's signature. Do that before you send rather than after, and attach it as Exhibit F.
• They re-shot the product, they did not take your file. Under Ets-Hokin, above, a competitor who shot your product on their own white sweep owns that picture. You are claiming the file itself. Resemblance is not enough. If you cannot point at something only your file has, this is a design or trade dress question rather than a copyright one.
• It is a legitimate reseller using your photo of your own goods. Someone reselling your product with photography you supplied is not the target of this page, and a takedown notice at them is a mistake. Section 512(f) makes anyone who knowingly materially misrepresents that material is infringing liable for the damages, costs and fees they cause, and the Ninth Circuit held in Lenz v. Universal that a copyright holder has to consider fair use before sending a notice. Both halves are true at once: it is a real claim, and its good-faith standard is subjective, so it is hard to win. Treat it as a reason to be right, not as a weapon.
• The seller is overseas. A letter to an anonymous offshore dropshipper gets ignored, and the escalation behind it does not exist. The Copyright Claims Board excludes a claim against a person or entity residing outside the United States under 17 U.S.C. § 1504(d)(4), and its service rules reach only inside the country. The one lever that travels is the counter notice: under § 512(g)(3)(D) a seller outside the United States who files one consents to a federal court in any district where the service provider may be found.
• The other side is funded and might sue first. This is the letter you do not write yourself. The Declaratory Judgment Act lets a court declare the parties' rights with the force of a final judgment, on the standard the Supreme Court applied in MedImmune v. Genentech, quoting Maryland Casualty Co. v. Pacific Coal & Oil Co.: whether the facts show a substantial controversy between parties with adverse legal interests, of sufficient immediacy and reality. No letter creates jurisdiction on its own. The risk is in the letter that overclaims, or the one sent to a funded business with counsel, and the fix is an attorney rather than a bolder template. Filing first and sending second does not help either, because § 411(a) means you cannot file until a registration issues.