Two easy steps for using a DMCA takedown notice to battle copyright infringement

Finding an unauthorized use of your photograph on the web is upsetting. But what can you do about it? You can contact an attorney for assistance.  But if you haven’t registered your photo in advance of the infringement, then you won’t be eligible for statutory damages. Attorneys will take such cases on contingency only under certain circumstances. It then will cost a lot to pursue the infringement when paying the attorney an hourly fee. In the alternative, you can send a cease and desist and/or a demand for payment yourself to the infringer. But such letters are often ignored. 

Fortunately, the Digital Millennium Copyright Act (DMCA) gives you another option. Enacted in 1998, the DMCA implemented treaties signed at the 1996 World Intellectual Property Organization (WIPO) Geneva conference. It addresses many issues, one of which affects photographers directly in this situation. The DMCA states that while an Internet Service Provider (ISP) is not liable for transmitting information that may infringe a copyright, the ISP must remove materials from users’ websites that appear to constitute copyright in­fringement after it receives proper notice. Unlike other copyright infringement remedies, your copyright does not have to be registered with the U.S. Copyright Office for you to take advantage of this DMCA provision. 

Please note that the DMCA is US law only. However, copyright law is similar in the countries that are signatories to the Berne Convention. More information can be found on the website of the United States Copyright Office.

Step 1: Finding the ISP that is hosting the website with your image

If you find a website that is using one of your images without permission, contact the ISP that is hosting the culpable website to report the infringement and ask that the infringement stop. The letter you send is called a “DMCA takedown notice.” The ISP is required to make its agent’s name and address available so that you can send it the notification.  

So how do you find the hosting ISP? The Internet provides many options. A "who is" search on the website name may help. But another option, using a DNS lookup, may provide better information. 

Take, for example, my wildlife photography website at www.vividwildlife.com.  Enter the information as shown below:

The results are shown below. Note the IP address identified.

Clicking on the IP Address provides the IP information for it. Go past the American Registry for Internet Numbers (ARIN) information to see that the IP address of 64.202.163.78 is part of the "Net Range" belonging to GoDaddy.com. The information even provides the address to send complaints for "Abuses," as shown by the red arrow below.

Some websites provide the contact information for copyright/DMCA complaints directly. For example, Flickr has a link to “Copyright/IP Policy” at the bottom of the home page:

When you click on the link, you'll find the instructions and optional addresses where to send your notice:

Step 2 - Drafting your Takedown Notice

Your Takedown Notice to the hosting ISP must meet certain requirements. Specifically, your notification must:

  • Be in writing
  • Be signed by you, as the copyright owner, or your agent (your electronic signature is sufficient)
  • Identify the copyrighted work that you claim has been in­fringed (or a list of infringements from the same site)
  • Identify the material that is infringing your work
  • Include your contact information
  • State that you are complaining in “good faith”
  • State that, “under penalty of perjury, that the information contained in the notification is accurate” and
  • State that you have the right to proceed (because you are the copyright owner or the owner’s agent)

Your notice may look like the following to make your claim:

VIA Email at ISPHosting@isp.com

Re: Copyright Claim

To the ISP Hosting Company:

 I am the copyright owner of the photographs being infringed at:

http://www.vividwildlife.com/Alaska.htm

http://www.vividwildlife.com/links.htm

Copies of the photographs being infringed are included to assist with their removal from the infringing websites. 

This letter is official notification under the provisions of Section 512(c) of the Digital Millennium Copyright Act (“DMCA”) to effect removal of the above-reported infringements. I request that you immediately issue a cancellation message as specified in RFC 1036 for the specified postings and prevent the infringer, who is identified by its web address, from posting the infringing photographs to your servers in the future.  Please be advised that law requires you, as a service provider, to “expeditiously remove or disable access to” the infringing photographs upon receiving this notice. Noncompliance may result in a loss of immunity for liability under the DMCA. 

I have a good faith believe that use of the material in the manner complained of here is not authorized by me, the copyright holder, or the law. The information provided here is accurate to the best of my knowledge. I swear under penalty of perjury that I am the copyright holder. 

Please send me at the address noted below a prompt response indicating the actions you have taken to resolve this matter.

Sincerely,

/s/ Carolyn E. Wright

Email:  carolyn@photoattorney.com

After the ISP receives the notice, it should remove the infringing materials within a reasonable time.

First consider whether the use of your image is a fair use

In addition to the statutory requirements of your letter, courts require that you must evaluate whether the use of your image at issue is a fair use before you send the demand letter. Review the law as to what comprises fair use to help you decide whether the use qualifies. My article on fair use should help.

Counter notification

The same provision of copyright law that allows for the takedown notice also allows the alleged infringer to file a counter notice. After sending your takedown notice to the ISP, the ISP will notify the alleged infringer of the notice. The infringer then can send a counter notice to the ISP declaring that the infringer “has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled” and other requirements of Section 512 (g). At that point, the ISP is caught in the middle. By law, the ISP must repost the infringing material to its original location.

Unfortunately, the only option then to stop the infringement is to file a lawsuit asking the court to enter an injunction stopping the use of the copyright material. Since the infringer can easily move the use of the copyrighted material to another ISP, it’s best to include a copyright infringement claim in the lawsuit. Such lawsuits are expensive and significant damages usually can only be recovered if your image is registered.  Fortunately, most infringers don’t take the time to file a counter notice. But be sure to register the copyrights to your photos so that you have all of the tools necessary to fight copyright infringement.

Conclusion

Infringements are much too common these days.  Fortunately, there are tools to fight them – the DMCA takedown notice is one of the powerful ones.


Carolyn E. Wright is an attorney dedicated to the legal needs for photographers. Get the latest in legal information at Carolyn’s website, www.photoattorney.com. These and other legal tips for photographers are available in Carolyn’s book, The Photographer’s Legal Guide, available on her website.

NOTE: The information provided here is for educational purposes only. If you have legal concerns or need legal advice, be sure to consult with an attorney.

This article originally appeared on the website of the National Press Photographers Association.

The views and opinions expressed in this article are those of the author and do not necessarily reflect the views and opinions held by dpreview.com or any affiliated companies.

Comments

Total comments: 23
nickyhelmkamp
By nickyhelmkamp (Dec 17, 2012)

Nexcess did a really cool infographic to highlight the details of the DMCA without having to sift through the legal speak.

http://blog.nexcess.net/2012/02/22/dmca-process-infographic-flowchart/

0 upvotes
wrcak
By wrcak (Oct 28, 2012)

Thanks for these tips folks.

0 upvotes
Photo Rico
By Photo Rico (Oct 7, 2011)

Hello All,

I hope you can help me. I am thinking of buying equipment to take photos of tourist and sell them, like in Disney Land, where the photographers are walking around and transmit the digital images to a central booth were clients chose and buy them. I have no clue about what to get. I did some research and the equipment seems to be very expensive and I need advise in what is the right setting for my new venture. Also, I am not sure if I will need any software to edit photos. My idea is to have a nice background picture were people can pose like if they were actually at that location. I also saw a program were you shoot against a blue background and then over impose the photos.
Please help, I'm very exited about the business side but know nothing about the technical side.

Any advice is much appreciated.

0 upvotes
timned88
By timned88 (Oct 2, 2011)

the bottom line here is that if you don't want to take the chance of having your work "infringed" upon, don't post it on the web.

0 upvotes
jerome_munich
By jerome_munich (Oct 1, 2011)

I understand that a professional photographer (i.e. one who derives his or her income from selling photographs) has an interest in this procedure.

But I am not a pro, I don't sell pictures. Why would I go through the expense of hiring an attorney to stop publication of my pictures? Why would I even invest time and money to look for copyright violations? I will never get any of that effort back.

0 upvotes
Les Kamens
By Les Kamens (Oct 1, 2011)

http://www.nppa.org/professional_development/business_practices/ethics.html

I Know you said you were not a professional, but for the rest of us out here who are. You water down the market place by letting them steal your images. It's hard to compete with free images. So the above link although is set for the professional's should slightly apply to anyone with a camera giving up images for publication to advance that publication in some way.

1 upvote
jerome_munich
By jerome_munich (Oct 1, 2011)

So, in effect, you are saying that, if one of my pictures is used I should invest time and money so that you, a total stranger, will be able to keep running your business?

Don't misread me, I am not trying to be rude, just to point out a problem in your reasoning. Battling copyright infringement takes time and money. Theoretically, of course, I could (should?) battle whatever infringement happens in the interest of the Greater Good, not sparing my time or my resources. In practice, I lack the motivation if it is only going to cost me without any chance of getting anything back. And don't take it personally, but your business problems are not mine. Whether your business prospers or fail because it cannot compete with free images is not going to make me any better or worse.

And it is not only me obviously, but also millions of amateurs. There lies the problem.

1 upvote
BayCity
By BayCity (Oct 3, 2011)

You should always pursue it. Professional or not the images are yours. I've found quite a few of my photos in use by local businesses. Never had to file a DMCA takedown notice. I always approach the design firm that built the site where my images are being used. I explain the situation, show them where their client took the images from, tell them what I charge for digital usage rights and simply ask that I be paid or the image be removed. Their client usually says something like "I didn't know I couldn't do that" or whatever. I've been paid every time. You can even trade. Just as long as you get something in return. I've traded for access to places I otherwise wouldn't have been able to get access to such as rooftops, private marinas etc. because I knew photo opportunities existed there.You deserve to be compensated for your work just like everybody else.

0 upvotes
Steve Davey
By Steve Davey (Oct 3, 2011)

Jerome, I agree with you in part, amateurs should not be expected to take up legal cases to protect pros, but I can see a number of times when an amateur might need some of the information in this feature.

Firstly a DMCA takedown request is easy in the initial stages, and most will not be challenged, as this can lead the infringer open to greater penalties. Your photographs are your IP and you should be prepared to protect it.

Imagine if a company lifts a picture of your family and uses it to promote their product. I have heard of at least one case where a personal picture lifted from Flickr was used on an adult DVD cover! You might then be more prepared to take action, and this feature gives you all of the information that you might need. How far down the process you are prepared to take this would depend on the nature of the infringement and your own character.

0 upvotes
Steve Davey
By Steve Davey (Oct 3, 2011)

It is also worth mentioning that legal enforcement might not cost you anything. There is at least one legal company offering no-win no-fee IP representation. I can't believe that there aren't dozens of companies in the US just salivating to take matters further for you!

This s a very useful feature. Well written and concise. Many people who feel powerless to do anything about infringements of their work will benefit from reading this feature whether they decide to act on it or not.

Thanks for the article Les.

0 upvotes
jerome_munich
By jerome_munich (Oct 3, 2011)

I will only pursue if I feel that I have more to gain than lose in a legal fight and I believe that the "no-win no-fee" representatives will only do the same. Sure, if a picture of my kids is used for a major publicity campaign or, heaven forbid, for adult products, I *will* sue and I am pretty sure that I would find a lawyer willing to help me

But the average infringement for the average amateur is likely to be a small picture used on a web site, possibly in a different country. The infringer is probably only going to take the picture down, and never pay anything. If we ever pursue the matter to court, the infringer can easily prove that usage rights for a similar picture can be had from microstock agencies for less than 5$. How much am I likely to get back? Seriously?

I understand that the matter is different for a pro, who can prove how much his or her pictures cost since they are routinely sold. But amateurs do not have quite the same deck of cards in their hands in these matters

0 upvotes
b0bg
By b0bg (Sep 30, 2011)

Unfortunate that step 1 is not to contact the site owner to assert copyright ownership. I find an assertion of "good faith" in a form letter hard to square with skipping this step. It's possible (likely?) the sight owner has some reason to believe their use is legitimate, or at the very least would likely respond positively to a less confrontational approach.

Assuming a disagreeable response/lack of response issuing a DMCA takedown seems reasonable, but the reference to RFC1036 seems inapplicable in the modern internet. RFC1036 specifically refers to USENET messages, this tutorial seems to assume web hosting, and in any event was superceded by RFC5536.

0 upvotes
b0bg
By b0bg (Sep 30, 2011)

reply to self....grammar fail. =[ site!=sight, etc.

0 upvotes
John King
By John King (Sep 30, 2011)

Carolyn

Thank you for this informative article.

I have followed your 'recipe' by contacting the ISP/hosting service provider one a couple of occasions in the past, and all except this site, DPR, have acted on my request to remove such copyright infringing work.

The use by some posters here of my work for malicious purposes would apparently disqualify the perpetrator from claiming "fair use". This would appear to be particularly the case when my work has been modified in such a manner as to further ridicule it.

All of my work has a copyright notice embedded in the metadata; my footer block here states that I consider any embedding of my photographs without my prior written consent to be a breach of my copyright, and my web site also makes a statement that all work published on that site is copyright by the owner, or others as noted.

regards, john

0 upvotes
dixiefever
By dixiefever (Sep 30, 2011)

"Your Takedown Notice to the hosting ISP must meet certain requirements"...
Why is there no requirement to actually prove that you are the copyright owner? Maybe it's because this act was tailor made for big studios who wanted the quickest way possible to bully ISPs into removing any content they don't like, and not for the common man, who's probably going to end up having to get a lawyer anyway.

2 upvotes
Frenchy
By Frenchy (Sep 30, 2011)

There are no requirements because the law give the same power to the defending party.
All the defending party has to do to reinstate the content is send the same message to the ISP saying that they think "in good faith" that they have a right to the content.
The ISP is just a middle man. DMCA take down have been designed to make it easy for companies to take down infringing material hosted on lawful companies by unlawful users. If you think the take down is in abuse, you just need to notify the middle man to place it back. At worst, you got a few days of downtime for your media. The ISP is obligated by law to reinstate your content, as if you are claiming ownership in a letter, their obligation ends and their status is now legal. The problem becomes between the user and the issuer of the take down (as now, the dialog has been proven possible).
Not too much of an undue burden even for a simple user.

If the take down was abusive, you can actually sue the issuer (not the ISP) for damage

1 upvote
dixiefever
By dixiefever (Oct 2, 2011)

The problem with what you are saying - and with this act - is that a person is supposed to be presumed innocent until proven guilty, and not the other way round. I want a way to protect my intellectual property just as much as anyone else, but not at any price. Pulling content off the web without burden of proof - even if just temporarily - is just wrong...

0 upvotes
sarahfledge1984
By sarahfledge1984 (Jul 28, 2012)

I have a very grave and serious issue at the moment and we don't know how best to proceed with it.

My copyrighted photo is being used in an extremely malicious and libelous fashion in a smear campaign against an actor friend.

The blogger ignored our emails, so we contacted the Google blogger team. Following several occasions to prove ownership of the image and where it was stolen from, we provided all legal wording and went beyond the burden of proof to demonstrate ownership.

Google won't budge and their removals team refuse the take down. The image and its damning article (totally unfounded and untrue) on their site is severely damaging the actor's reputation and causing significant loss of earnings.

We're at a total loss as to why Google won't remove the offending image from their servers. In a similar instance, Photobucket removed one from their server within 40 minutes.

Although it is crystal clear Google are acting unlawfully, they just don't seem to care. Advice?

0 upvotes
AbrasiveReducer
By AbrasiveReducer (Sep 29, 2011)

When eBay was new they had a slogan "We believe people are basically good". Now, they have an extensive legal department & elaborate complaint resolution programs. Lesson: If it is possible to do something, people will do it. Of course there are many good reasons why you might want to post an image but in doing so, you are giving it away. If it's a unique and/or exceptional image, prepare yourself for "battle" and not necessarily victory.

0 upvotes
ianz28
By ianz28 (Sep 29, 2011)

I was actually forced to use a DMCA takedown notice when the owner of a business and website refused to take down some images.

It was a very fast and effective means to have the images removed.

0 upvotes
ianz28
By ianz28 (Sep 29, 2011)

I just did a search and the business owner is now using the images again on another website.

Think I might have to get a lawyer involved.

0 upvotes
wil13jak
By wil13jak (Sep 29, 2011)

excellent article thanks

0 upvotes
nikonboi
By nikonboi (Sep 29, 2011)

Great article. Thanks for all this info.

1 upvote
Total comments: 23