Copyright Carolyn E. Wright, Esq.
All rights reserved
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.
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, such as the one available at http://www.whois.net/, may help. But another option, using a DNS lookup, such as http://www.domaintools.com/research/dns/, 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 126.96.36.199 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:
Your Takedown Notice to the hosting ISP must meet certain requirements. Specifically, your notification must:
Be in writing;
Be signed by the 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:
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 belief 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.
/s/ Carolyn E. Wright
After the ISP receives the notice, it should remove the infringing materials within a reasonable time.
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. http://www.photoattorney.com/?p=299
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.
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.