Take Down Notices & Digital Millenium Copyright Act

The internet has made it easier for emerging artists, writers, and photographers to share their work with large numbers of people.  The downside of this ability to spread one’s work to the masses is that it is much easier for the work to be copied and distributed without the author’s permission.   Infringing copies of copyrighted material can show up on social media websites such as Facebook, Instagram, and tumblr, as well as personal or business websites.

So what can an artist or author do if unauthorized copies of their work have been posted on a website without their permission?

The first step would be to contact the person who posted the image or work.  Politely send them an email informing them they have reproduced a copyrighted work without permission and ask them to take the image down.  Most times, this should work.  Often, people do not realize a work is under copyright protection and will remove it when prompted.

If the poster refuses to remove the work, the next step is to write a Digital Millennium Copyright Act (DMCA) takedown notice to the site host.  If the offending image is on a site social media site like Facebook, then write to the Facebook administrators.  If the person posted the work on their own website, then look up the webhosting company using a WHOIS search.  A complete takedown notice must include six pieces of information:

  1. The signature of the copyright holder (e.g. author or artist) or a person (usually a lawyer) authorized to act in their behalf;
  2. Identification of the infringing work, e.g. the name of the story or artwork;
  3. Identification of where to find the material to be removed, usually a link to the infringing work;
  4. Contact information of the copyright holder or person authorized to act in their behalf;
  5. A statement that there is a good faith belief the offending material is being used in a manner unauthorized by the copyright owner; and
  6. A statement under penalty of perjury that the information in the notice is accurate.

Once a web host or a site administrator receives a complete takedown notice, they are required by law to remove the offending material.  In most instances, this will remove the infringing work permanently.

However, there is a small chance the poster of the infringing work may send a counter takedown notice.   If the counter takedown notice is complete, then the material will be reposted.  In most cases, the infringer will not write a counter takedown notice because the notice will be forwarded to the person who wrote the original takedown notice, and a complete counter takedown notice must include a statement consenting to the jurisdiction of a Federal Court.  Basically, if the poster of the infringing material wants it reposted, they must send the copyright owner a letter saying, “Here’s where I am and if you want to you can sue me here.”

If an infringer still refuses to take down infringing content, then you may have to sue the offender.  You can contact the attorneys of Buche & Associates, P.C. in San Diego, California for infringements of patents, trademarks and copyrights.  www.southerncaliforniapatents.com.

Article by Jennifer Blanton, J.D.