Proof
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Proof
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Does a copyright cease and desist letter have to prove that the party issuing the letter actually created the work? And what happens if the recipient demands proof of authorship but refuses to provide an affidavit from the outset?
Figurine Designs from China and a Dispute Over Costs
A retailer was selling merchandise featuring three character designs. According to her, she had sourced the merchandise from a Chinese manufacturer. She stated that she had been working with this manufacturer for years without ever having had a dispute over copyrights. A woman who considered herself the creator of the designs sent the retailer a cease and desist letter. A cease and desist letter is an out-of-court demand to cease an infringement and to provide a binding assurance to that effect.
The seller responded with a letter from her lawyer dated January 23, 2026. She demanded proof that the party issuing the cease and desist letter had actually created the works. At the same time, she stated that the submission of an affidavit was not sufficient for this purpose. An affidavit is a written statement whose accuracy is expressly attested to in lieu of an oath.
The party issuing the cease and desist letter then filed a motion with the Regional Court of Frankfurt am Main for a preliminary injunction—that is, a court order issued in summary proceedings. The motion was accompanied by an affidavit in which she stated that she had created the three works shown in 2013. The Regional Court heard the dealer’s side of the story and indicated that the application appeared to be well-founded. The dealer then issued a cease-and-desist declaration subject to a penalty clause, and both parties declared the proceedings settled.
The only remaining issue was who would bear the costs. In its ruling dated March 10, 2026—Case No. 2-06 O 41/26— the Regional Court ordered the retailer to pay them.
The retailer’s objection
The merchant filed an immediate appeal. She cited a cost provision in the Code of Civil Procedure. According to that provision, the petitioner bears the costs if the opposing party gave no cause for the legal proceedings and immediately acknowledged the claim.
She had given no cause for such a claim. To date, the party issuing the cease and desist letter has not provided any proof of her authorship. An online search reveals that a character such as “Rudolf the Reindeer” has been in use since the 1930s. The affidavit was only submitted with the court motion and was, moreover, very brief. Despite the rejection, the party issuing the cease and desist letter could have sent it and provided a link to its website. Furthermore, the cease and desist letter is invalid because it did not itemize the attorney’s fees.
The Frankfurt Higher Regional Court dismisses the appeal
In its decision dated August 17, 2026—Case No. 11 W 5/26 —the Higher Regional Court of Frankfurt am Main dismissed the immediate appeal, with costs to be borne by the retailer.
Does the cease and desist letter have to include proof of authorship?
No, not as a general rule. In the court’s view, the party issuing the cease and desist letter is not required to submit proof of authorship along with the cease and desist letter itself. The only exception is if the party specifically refers to certain supporting documents in the cease and desist letter. This follows from the fact that even a well-founded lawsuit is not required to include offers of evidence.
For summary proceedings, an affidavit is sufficient to establish a prima facie case. Establishing a prima facie case means that the court must consider a claim to be highly probable; full proof is not necessary. The statement by the party issuing the cease and desist letter that it had created the three works in 2013 was sufficient. Further details, such as the exact date of creation or the manner of exploitation, were not required. Copyright protection does not require that the author exploit their work in any way.
Nor was there any need for references to the sender’s sales activities or websites. Such references are neither necessary nor sufficient to prove authorship. The fact that the retailer has been working with her manufacturer for years without any complaints is irrelevant to the issue of costs.
What applies if the recipient of the cease-and-desist letter requests proof?
The court expressly left open the question of whether the party issuing the cease and desist letter must provide proof as soon as the recipient requests it. That was not the issue. The retailer had, in fact, already rejected the most obvious form of proof in advance.
In any case, the petitioner was therefore entitled to assume that the pretrial submission of an affidavit—which, as explained, is sufficient in preliminary injunction proceedings to establish a prima facie case of authorship— would not prompt the respondent to issue a cease-and-desist declaration or otherwise allow the respondent to prevail without the issuance of the preliminary injunction.
The party issuing the cease and desist letter was therefore entitled to go to court immediately without any risk of incurring costs. The fact that she could have sent the insurance policy despite the rejection is irrelevant. There is also a second consideration. The retailer continued to regard the insurance as insufficient even during the complaint proceedings. It can therefore be assumed that she would not have issued a cease-and-desist declaration even if the insurance had been sent earlier.
Does the cease and desist letter have to specify the attorney’s fees?
The Copyright Act requires that a cease and desist letter itemize the asserted monetary claims for damages and reimbursement of expenses. If such mandatory information is missing, the cease and desist letter is invalid.
In the court’s view, this obligation applies only if the cease and desist letter actually demands payment. The party issuing the cease and desist letter had merely announced that it would specify the amount of damages and attorneys’ fees in a subsequent letter. The fact that it is customary to specify the costs of the cease and desist letter does not make it an obligation.
Conclusion
Anyone who demands proof and rejects the form typically used in summary proceedings in advance cannot later invoke the lack of such proof. The ruling is favorable for copyright holders. It confirms that the cease and desist letter does not constitute an anticipatory taking of evidence.
However, the court left the truly interesting question open. It remains unclear whether the party issuing the cease and desist letter must provide evidence if the recipient of the letter requests it in good faith and without reservation. Particularly in the case of designs that come in many variations, a retailer’s interest in verifying them is understandable. In practice, this is the more important scenario.
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