Copyright: The DMCA Takedown Notice
A white-faced capuchin with a big yawn prepares for a nap on the mangrove roots in Panama. Photos that show an animal's behavior or an animal in a location where they aren’t as often photographed stand out in a sea of sameness when it comes to stock photography. Photo and article by: Annalise Kaylor
Earlier this month on one of our workshops, a client mentioned that she had one of her photos stolen from her Facebook page and it was being used by a local business, much to her chagrin. It was blatant image theft and a copyright violation. She had reached out to the business owner multiple times in an attempt to negotiate a trade or compensation, but never heard back from the owner.
Frustrated, and not wanting to let it just go, she asked me if I could help her figure out some next steps that didn’t involve a lengthy process or suing a small business in her town.
So, we talked through one of the methods for having your copyrighted material taken down if the use is unauthorized: the DMCA Takedown Notice.
How the DMCA Came to Be
Copyright law has always been woefully behind the times, and the explosion of the internet only made that situation a bit worse. Everyone was able to get online and do what they wanted with the content there, copyright laws be damned. In 1998, Congress amended the U.S. Copyright law by passing the Digital Millennium Copyright Act, better known as DMCA.
There were three major updates that this law addressed. First, it established protections for online service providers in certain situations if the people using their service engaged in copyright violations, including the creation of a notice-and-takedown process. This process allows copyright owners to inform these service providers that an infringement has happened so the provider can take the infringing content down. To help deter would-be infringers, it became a criminal offense punishable with up to ten years in prison and $1 million in fines for violating certain provisions of the DMCA.
Second, it was a way to give people some way to take action to protect their copyrighted work by giving them some legal protections against unauthorized use of their work. For example, if someone were to hack into an account. And third, the DMCA passage made it unlawful to provide false copyright information or to remove or alter copyright information in certain cases.
The passing of the DMCA also provides sort of a “safe harbor” for service providers who follow the guidelines set forth in the DMCA. Essentially, internet service providers, like Facebook, Comcast, AOL, Wordpress, etc. can’t be held liable for hosting the infringed content if certain criteria are met. That makes sense, in that it would be impossible to police content hosted on every website and frankly, would potentially stir up some interesting First Amendment discussions.
DMCA Takedown Notice First Steps
There are just a few things you need to have ready before you send the notice to the service provider. Personally, I prefer to try and work with the infringer first. In many cases, they had no idea they were doing something wrong and are happy to oblige. But when they don’t respond, like what the client on our workshop experienced, sending a DMCA Takedown Notice is a fairly easy next step.
Take screenshots of the infringement. I always grab a screenshot that includes the URL of the site in the photo. I also print the webpage itself (File —> Print) as a PDF file, which will include the URL and the date in the footer of each page. This is your electronic receipt, if you will.
Determine the web host of the infringing website. The web host is the company responsible for hosting the entire website. Often, people will leave the hosting link in the footer of their website, so check there first. Or, you can use a site like Accu to type in the URL to find out the host. You’ll get a box of results that list the ISP (e.g., Squarespace, WordPress) and the DNS servers (e.g., Dreamhost, GoDaddy).
Go to the host website or Google their name plus “DMCA” and you should quickly find their policy on Copyright and how to submit a DMCA Takedown Notice to them. Going Pro, for example, is hosted on Squarespace and this is their Copyright Policy.
If you can’t easily find where to send the notice, you can also search the DMCA Designated Agent Directory at the U.S. Copyright Office.
Drafting a DMCA Takedown Notice That Meets Legal Requirements
Many times, the host you are sending the notice to will have a form on their website that you can use, saving you a little more time and keeping you compliant at the same time.
If they don’t have a form, then you’ll have to draft a letter to the host (using the info you found on their site) yourself. While the letter itself doesn’t need to be lengthy, you do need to call the letter a “DMCA Takedown Notice.” You must use that exact term and your letter must include the following:
The signature of a person (physical or electronic) of a person authorized to act on behalf of the copyright owner or the intellectual property owner that has allegedly been infringed upon. This will most likely be you, but there are some cases where a lawyer or other representative may send one on yourbehalf.
Identification of the material being infringed upon. You must be detailed in this step. Include your screenshots and/or the PDF files. When I file these, I also include the date that I published this on my website/social/etc. This way I clearly show the timeline of events that demonstrate I published this first.
Identification of the material on their website that is claimed to be infringing upon your copyright. Include as much information as you have available. This means including the URL links to any and all infringements on the site, and anything else that makes it possible for the web host to easily identify the material and verify that it exists on the website of the infringer.
All contact information for the owner of the copyrighted material. Again, this is likely you, and you should include your name, your title (e.g. Owner, Annalise Kaylor Photography), your address, telephone number, and email address.
A statement that you have good faith belief that the material they are using is not authorized by the copyright owner (you), its agent, or the law; and
A statement made under penalty of perjury that the information provided is accurate and that you are authorized to make this complaint as the copyright owner.
Once you’ve drafted your letter and assembled the accompanying proof of infringement, mail it off to the email address or the physical address that you found when you identified the web host.
DMCA Counter-Notice
Upon receipt, the web host will notify the owner of the site that is allegedly participating in copyright infringement and they will have a chance to respond to the host. If the alleged infringer has a good faith belief that they are not infringing on your copyright, they can send a counter-notice to their service provider explaining why they disagree with you. Like the takedown notice you sent, there are elements that must be listed in the counter-notice. Providing false information within the counter-notice is punishable under federal law, and anyone who makes a false notice can be sued and held civilly liable.
In their counter-notice, they must include a statement that they consent to the jurisdiction of the Federal District Court for the judicial district where they are located and will accept a service of process from you if and when you file suit.
In other words, they better have a pretty good reason to send a counter-notice, as the consequences can be significant.
Once the service provider or host has received a counter-notice, they are obligated to forward that to you. They also must wait 10-14 days from the time the counter-notice was received to see if you end up filing suit against the alleged infringer. If you do sue within that window of time, then the material in question will remain taken down. But if you don’t file suit, then that provide is obligated to re-activate or allow access to the material that you alleged infringement.
While this all sounds complex, it’s really just a handful of steps. It’s been my experience that most infringers don’t need or want your photos so badly that they are willing to put forth the effort, and acknowledge they are ready to be served in a lawsuit if needed. My experience has been that my photo is usually gone within a few days of sending along the Takedown Notice.
If a Takedown Notice isn’t really your style, you can also steal my letter template and the method I use to try and earn lost licensing revenue from infringers instead.