Have you had that heart-dropping moment when you see someone else taking credit for your hard work? Many writers and photographers with content on the internet, including me, have had this problem. When someone uses one of your images without permission or credit, it can be difficult to know what to do. Many times it can be solved by a simple email request to remove the content or a cease and desist letter. However, if these remedies do not work, a DMCA Takedown notice can be your next step.
The Digital Millennium Copyright Act, or DMCA, is legislation passed in 1998 that addresses copyright infringement as well as exempting service providers from liability for copyright infringement by their users. For many photographers, the main usefulness of the DMCA is that it provides a path to get your photographs removed from a site that is using or displaying your work without permission. There are several steps involved with this tutorial on how to send a DMCA Takedown Notice.
#1 Determine if Fair Use is happening
First, you must determine if the use of your photograph falls under the Fair Use Doctrine. Fair Use is a part of copyright law, which allows people to use your photograph without permission from you, the copyright owner. Examples of Fair Use would be using your photograph for teaching, research, or criticism.
The exact text of the section describing the Fair Use Doctrine is:
Notwithstanding the provisions of sections 106 and 106A, the 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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. 17 U.S.C. §107.
Sometimes, it is easy to determine if Fair Use will come into play, but consulting an attorney can clarify any confusing issues.
#2 Not fair use – draft take down notice!
Next, if you have determined that your photograph does not fall under the Fair Use doctrine, you must draft and send a takedown notice. There are specific steps to use in a takedown notice under the DMCA.
The DMCA states:
(A) … a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if avail-able, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has 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.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly in-fringed. 17 U.S.C. §512(c)(3).
DCMA may not be proper
There are certain circumstances in which a DMCA takedown notice is not the proper remedy. The DMCA only applies to items that are copyrighted, so things like titles or short descriptions of your photos are not covered. The actual photo itself would be the only thing covered by the DMCA. Also, be sure that use of the photograph is not covered by any licenses that you have given. There are legal penalties to making a false statement of good faith in a takedown notice. So be very sure that the content you are complaining about is actually yours and is not being fairly used. Also, you must be the copyright holder or authorized by the copyright holder to send a takedown notice. The DMCA is only applicable to service providers and is an American law, so it only applies to service providers located in this country. Which means that if a service provider that is based outside of the United States is hosting your photograph, the DMCA does not apply, and the service provider need not comply with takedown notices.
Keep an eye out for changes
In recent years, there has been much controversy surrounding the DMCA, since it was written before technologies like smartphones and video and music streaming became popular. Web sites based on user-generated content such as YouTube, Twitch, and Google, comply with DMCA takedown notices. However, it takes time and resources for copyright owners like record companies and movie studios to locate all instances of infringement and send a takedown notice to remove infringing material. Many changes to the DMCA and copyright law have been discussed recently within Congress and the US Copyright Office, but as of now, the takedown notice process remains the same.