Do you own the copyright to any creative works? If you’re an artist, you do, whether you’ve registered the copyright or not. Anything you create is copyrighted. These days, the place where your copyrighted work is most likely to be used without your permission is on the Internet. Someone sees a photo of your work on your own website, or snaps a photo of your piece in a gallery, or gets a photo from a friend, and suddenly it’s illustrating someone else’s blog post, or incorporated into someone else’s artwork.
It’s copyright infringement, but what can you do?
The first—and usually the best—course of action is to contact them directly. Tell them you own the copyright in the work, you haven’t consented to its use on their website, and they need to remove it immediately. Being polite but direct works best.
If it doesn’t work, and if you’ve registered the copyright in your work, you can sue them in federal court. But that’s a lot of expense and stress—more than it’s worth, in most cases.
Fortunately, the U.S. Copyright Act provides a third method of addressing this situation. The Digital Millennium Copyright Act (the DMCA) is a part of the U.S. Copyright Act intended to protect copyright owners from online infringement.
The idea of the DMCA is simple: You send a formal notice to the internet service provider (the company that hosts the websites where copyright infringement is taking place). You tell them about the infringement. They have two choices: they can remove access to the item that you claim is infringing your work, or they can leave it up and become jointly liable for copyright infringement (if you later prove that it is infringement). The result is that most hosting companies will immediately take down the infringing content—they will block access to pages or disable entire websites, so that they are not liable for the copyright infringement.
I offer three caveats here:
- A few internet service providers are less responsible; they will simply ignore a DCMA takedown notice, so you would have to actually sue them in order to accomplish anything.
- There are serious penalties if you send a DMCA takedown notice without having a basis to send it. You have to act in good faith.
- If the other person disagrees, they can send a counter-notification that says, in effect, “I disagree.” If this happens, then the ISP doesn’t have to block access to your work. In this case, you need to negotiate a solution or go to court to prove your case.
But even with these caveats, a DMCA takedown notice is very often a fast and effective way to get an infringing image (or text) removed from someone else’s website.
Next, prepare your takedown notice. It must have certain information in it, or it will not be legally valid under the DMCA. If it’s not legally valid, the ISP can ignore it.
Your DMCA notice needs six things:
1. A clear description of your work, so they know what copyright is being infringed.
2. A clear description of what part of the website infringes your copyright. Normally this will be a URL with some explanation, such as “the photo in the upper left corner of this web page: http://___”.
3. Enough contact information to reach you, such as phone number, email, and mailing address.
4. 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.” It sounds strange, but you need to match what’s in the Copyright Act.
5. A statement that “the information in the notification is accurate, and, under penalty of perjury, the complaining party [that’s you] is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.” Once again, use this language, which is taken from the Copyright Act.
6. Your signature, as the copyright owner (it can be an electronic signature)
Gather all these up in an email, fax, or letter. Send them to the ISP or hosting company and see what happens.
If you prefer to have an experienced copyright lawyer help with the process, give us a call. Using DMCA notices can be a fast and effective way to deal with many cases where your work is being used online without authorization.