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How and when to send a DMCA takedown notice

Feature Image: Sign up here, by Helloquence, CC0

Using DMCA (Digital Millennium Copyright Act) takedown notices are an option in the event of copyright infringement and unauthorized image use by sites connected with the United States. However ,a takedown notice is not always the best course of action. This guide offers advice on when and how to use a takedown notice. 

What is a DMCA takedown?

A DMCA Takedown Notice is an official notice that informs an image user (person, business or host) that the copyright holder formally requests that their work be removed from a website.

Under the Digital Millennium Copyright Act, hosts and Internet Service Providers (ISPs) are granted ‘safe harbor’ from prosecution as long as they remove infringing content hosted on their server, as soon as they are notified. US (and affiliate) Courts take DMCA claims very seriously, and failure to act can mean severe penalties for ISPs or content providers. Accordingly, as an image creator, sending a DMCA takedown notice can sometimes be the quickest and most effective manner to have content removed.

When is sending a DMCA takedown advisable?

Sending a DMCA takedown notice is advisable for image owners, if:

  • They are the original owner of the image or their authorized agent
  • They did not grant a license for this use of their work
  • The image user has not responded to their request to properly license the image or otherwise remove the image after they have notified them directly
  • They do not want to engage with the image user directly
  • The unauthorized use was committed by an individual or an entity from whom they are unlikely to recover compensation for the use

What to consider before issuing a takedown notice:

What is the aim?

If an image owner’s main motivation is to be paid fairly for their work, a DMCA Takedown notice is not an advisable first move. Most photographers routinely undervalue their work and do not realize that they may be entitled to compensation for use that has already occurred.

Note that, recovering compensation is usually only possible when the image in question has been used by a commercial enterprise or organization.

If an image owner’s sole motivation is to have the work taken offline, a takedown notice is a great solution.

Is there a more direct route?

Many social media services are aware of the sheer volume of illegally distributed content found on their platforms. Instagram, Facebook, Pinterest, and other platforms, have created their own in-house methods for reporting and taking down disputed works. Going to the source directly in this case will be the fastest way to get content removed, provided that is the primary motivation.

Is it definitely the same image?

Photos can look similar. Be certain that the ‘infringing image’ found is unquestionably the same image as the original. For example, consider checking the metadata of the photo and comparing it to the original. Be warned that lodging a false DMCA takedown notice could bring a counterclaim and can be considered perjury.

Keen to go ahead?

Having considered the above options and decided that a DMCA takedown notice is the best course of action to take in removing content, consider the best medium to send it through. Takedown templates are available on the DMCA website to download. Alternatively, services (like the one offered at Pixsy) can automate this process.

Protect images from theft

Using active image protection is one of the best ways to protect images from unauthorized use online. There are a number of techniques that can be adopted to create an image protection strategy, please refer to our article on how to protect images online for further details.

Going forward

Sending a DMCA takedown notice is one way of taking action after discovering that an image has been used without a valid license or other form of authorization. Before deciding to issue a takedown notice, consider what the desired outcome is and whether sending a DMCA is the best option.

Key Takeouts

  1. Consider sending a takedown when unauthorized use of copyrighted work has been used for non-commercial purposes
  2. Unauthorized use of copyrighted work for commercial gain is not advisable grounds for sending a takedown notice, as compensation for the work’s use may be able to be recovered.
  3. Be certain the two images are definitely the same, before sending a takedown notice
  4. It may be quicker to use an in-house takedown service for removing images on big social media platforms 

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