As a copyright owner, you can use something called the Digital Millennium Copyright Act (DMCA) takedown notice to take action against copycats, even if your copyright isn’t registered.
*Keep in mind that you don’t own a copyright just because you are in a photo or video, or because you paid for the photos (say, from a photographer).
Ownership originally belongs to the person who created the work, unless you’ve received the copyright through a written agreement, a work-for-hire situation, or something like that.
The DMCA says that an Internet Service Provider (ISP) must remove materials from its users’ websites that appear to be copyright infringement after getting an appropriate notice.
ISPs include companies and organizations that provide their customers with Internet access, including big companies like Comcast, Time Warner, Verizon, and Cox, or smaller entities.
If you want to send a DMCA takedown notice, here are three simple steps to follow:
#1 Consider whether the use is a fair use or not.
“Fair use” is a defense to copyright infringement – meaning, if something is considered fair use, it is legal and cannot be taken down. If you have a good faith belief that the activity is not covered by fair use, you should be protected in demanding that a photo be taken down under the DMCA. So how do you figure out whether a use is fair or not?
Fair use is outlined in Section 107 of the Copyright Act, which provides that:
[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
This isn’t really a bright line test, more like a balancing of all of the various elements.
There aren’t black and white answers for whether fair use exists, but here are some guidelines:
Purpose and Character of the Use
The “purpose and character of the use” is one of the most important factors. Most courts ask whether the copyrighted work (i.e., the original photo) has been used as a basis for creating a new work (called “transformative use”) or just copied and/or placed directly into something else. The more changes that have been made, the more likely that it will be considered fair use. In my opinion, an original photo with words typed over it, like a meme, probably isn’t transformative enough to be protected by fair use.
Nature of the Copyrighted Work
Regarding the “nature of the copyrighted work,” a court is more likely to find fair use when the original work (i.e., the original photo) used has been published, rather than unpublished. In the context of social media, photos published online are probably considered “published,” though this may depend on the nature of your privacy settings, how many people the photo was shared with, and that kind of thing.
Amount Used
With the “amount” used of the original work, if a small amount is used, this is more likely to be considered fair. With photos, this may be tough to apply, because typically the entire photo will be used. This may be relevant in the context of photoshopping though, or if the photo is used as part of a larger video (think the #UNameItChallenge videos, which incorporate lots of photos into one video).
Effect on the Market
Finally, regarding the effect on the market, what matters most is whether you (or the original copyright owner) could have made money off of the photo. Courts usually consider whether the unauthorized use impacts and competes with the original owner’s potential for income. If it does, this is not fair use.
Determining fair use can be difficult, but what is most important is that you weigh all of the considerations. The most important thing, again, is that you have a good faith belief that the use isn’t fair. If you have a good faith believe that the use is illegal and not fair use, proceed to step #2.
#2. Find the web host where the image is posted.
Most social media sites, ISPs, and content publishers have specific DMCA takedown forms that you can fill out easily online. Here are links to some of the biggest:
If you want to send a complaint elsewhere, you can usually find the ISP hosting the website pretty easily.
Type the domain into a site like https://www.internic.net/whois.html or https://www.whois.net/ to determine who is hosting the website.
When you find the host, you can send your DMCA takedown notice there. Most of those hosts will have their DMCA process posted somewhere on their website.
If you can’t find the information for the host, the DMCA requires ISPs to provide the Register of Copyrights with contact information for a designated agent who can receive takedown notices.
The Register of Copyrights publishes this directory of agents online at: http://www.copyright.gov/onlinesp/list/a_agents.html .
#3 Draft the DMCA takedown notice.
While there is no specific format for a DMCA takedown notice, there are some things you need to include:
- Your signature, as the copyright owner or the person authorized to act on the copyright holder’s behalf
- Identification of the original, copyrighted work that you claim has been infringed/wrongfully posted;
- Identification of the material that is infringing/wrongfully posted & where it is located (perhaps by link or screenshot);
- Your contact information (email address, phone number, address, etc.);
- A statement that you have “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;”
- A statement that, “under penalty of perjury, that the information contained in the notification is accurate;” and
- A statement that you have the right to proceed, because you are either the copyright owner or the person authorized to act on the copyright holder’s behalf.
I’ve included a sample takedown notice at the end of this post. The ISP will usually remove the infringing/wrongfully posted photo in 24-72 hours.
If you’d like to read more about best practices for takedown notices, the United States Patent and Trademark Office has posted a great set of guidelines for such notices on its website here.
P.S. If you send one of these notices, the person who is the allegedly infringing poster can file a counter-notice, basically disputing your claim. You’ll get a copy of that counter-notice. The ISP will decide within 10-14 days whether to post the photo back online. At that point, you’ll have to make a decision about whether to file a lawsuit or not.
Hopefully this information is useful to someone out there who doesn’t know where to turn.
SAMPLE DMCA TAKEDOWN NOTICE
To Whom It May Concern:
My name is [Your Name] and I am the copyright owner of work(s) being infringed at [www.___________.com]. This letter is a Notice of Infringement authorized under §512(c) of United States Copyright Law.
According to [InterNIC, WHOIS, etc.], your company hosts, on its servers, the website where the infringing work appears. I am contacting you as the designated agent for the website.
This letter serves to assert my rights under the Digital Millennium Copyright Act (DMCA) and requests removal of the infringing content from your servers.
Specifically, I request that you: (a) notify the infringer of this letter, (b) inform the infringer of their duty to remove the infringing work immediately, and (c) demand that the infringer cease posting any infringing work to your server in the future.
Please be advised that law requires service providers to “expeditiously remove or disable access to” the infringing work upon receipt of this notice. The failure to do so may result in a loss of immunity for liability under the DMCA.
I have a good faith belief that the use of the aforementioned copyrighted work(s) appearing on the website for which you are the designated DMCA agent is not authorized by the copyright owner, its agent, or by law. I declare, under penalty of perjury, that this notice is true and correct and that I am the copyright owner entitled to exclusive rights which I allege are being infringed.
Please send me a prompt response indicating the steps you have taken to resolve this matter. If you would like to speak with me directly, I can be reached at the email address or phone number below.
Best Professional Regards,
/s/ [Your Name]
[Email Address]
[Phone Number]
[Mailing Address]