Photo by Scott Graham
If your copyright is infringed or your work is used without permission by a site connected with the United States, your best course of action may well be to think of your DMCA protection option (Digital Millennium Copyright Act) and issue a DMCA takedown notice. Here’s a handy guide to help you figure out when – and how – to do it.
What is DMCA protection?
The DMCA, a United States copyright law from 1998, protects copyrighted works online, lays down the legal foundations of digital rights management, and enhances the penalties for copyright infringement on the internet.
Copyright exists from the moment of a work’s creation but you can look at DMCA protection as a sort of double defense against possible infringers or at least a viable option to take (see below when we recommend issuing a DMCA takedown).
If a certain work is DMCA protected, let it be an article, audio, image, or video, it is illegal to copy that work, and the production and distribution of technology, devices, or services that get around copyright protection measures are also prohibited under the DMCA.
What protection does DMCA offer?
The DMCA protects two groups:
- Copyright owners can ‘activate’ their DMCA protection through a DMCA takedown notice.
- OSPs (Online Service Providers), including ISPs (Internet Service Providers, such as email systems or search engines) can find what is called ‘Safe Harbor’ against copyright infringement liability under the DMCA if they meet specific requirements. OSPs have to register here to in order to qualify for safe harbor protection and this directory will show you those already registered.
We will focus on copyright owners and the process of issuing a DMCA takedown notice below.
Photo by Cytonn Photography
What is a DMCA takedown notice?
If a person, business or host publishes your work without permission or in breach of a copyright license, you can send that image user a DMCA takedown notice, which is a formal request by or on behalf of the copyright owner, to remove the offending image from the website where it’s published.
If hosts, OSPs and ISPs remove infringing content hosted on their server as soon as they are notified (in a timely manner), the DMCA grants them ‘safe harbor’ from prosecution if they are registered, as mentioned above.. US (and affiliate) courts take DMCA claims very seriously, and failure to act can lead to severe penalties for OSPs and ISPs or content providers. Accordingly, as an image creator, sending a DMCA takedown notice can sometimes be the quickest and most effective way to get your content removed.
When should I send a DMCA takedown?
As an image owner, you should consider sending a DMCA takedown notice if:
- You are the original owner of the image or the authorized agent of the owner.
- You did not grant a license for your work to be used.
- The site that published your work is connected to the US. (DMCA is a US act.)
- The image user has not responded to your requests to properly license the image or otherwise remove the image.
- You do not want to engage with the image user directly.
- The unauthorized use was committed by an individual or an entity from whom you are unlikely to recover compensation.
It’s worth noting that although DMCA is a US act, similar style notices and takedown procedures exist in many other countries.
Things to consider before issuing a DMCA takedown notice
What do you want to achieve?
If your main motivation is to be paid fairly for your work, a DMCA takedown notice is not the best first move. Most photographers do not realize that they may be entitled to compensation for use of their work 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 your main or sole motivation is to have your work taken offline, a takedown notice is a great solution.
Is there a more direct route?
To address the sheer volume of illegally distributed content on social media, many platforms, including Instagram, Facebook, and Pinterest, have created their own in-house methods for reporting and taking down disputed works. Read our article on social media and image copyright.
Is it definitely the same image?
Photos can look similar. Make sure the ‘infringing image’ is definitely the same as your original. Comparing the images’ metadata is one way to do this. Beware: Lodging a false DMCA takedown notice could bring a counterclaim and can be considered perjury.
Photo by Kelly Sikkema
Ready to send your DMCA takedown?
If you’ve considered the above options and decided that a takedown notice is the best course of action, think about the best way to send it.
A DMCA takedown notice ideally includes:
- An introduction and the reason you’re sending the takedown notice.
- Details of your original copyrighted work used unauthorized by the other party, such as the title of your photograph and details of the infringer party such as the URL where you found the copy of your work.
- Proof of your copyright ownership regarding the given work.
- A good faith statement implying that involved parties will avoid acting in a dishonest manner or in any way that hinders the case from being resolved.
- A perjury statement where you express that everything you state in your notice is true and correct, in other words, not intentionally false.
- Your contact information and signature.
These are a couple of the most important sections to have in a DMCA takedown notice but proper legal support can always further assist your case. Services like Pixsy can automate this process and help you send one-click takedown notices, available in 14 languages (for 96 cents or less!). Find out more here.
Plus, to avoid a takedown situation in the first place, consider using active image protection: check out our top 13 ways to protect your images from unauthorized use online.
- The DMCA protects digital works against copyright infringement in the US.
- Copyright owners and OSPs (Online Service Providers) can both be protected under the DMCA.
- A DMCA takedown notice is the best way to get your work removed from a (US-based) site using it without permission.
- A DMCA takedown does not lead to compensation, so is generally better suited to situations where your work has been used for non-commercial purposes.
- The big social media platforms have in-house methods for reporting copyright breaches and takedown requests.
- Send the notice yourself by downloading a takedown template, or use a service like Pixsy that automates the process.
- Make sure the image is definitely yours. Lodging a false DMCA takedown notice could bring a counterclaim.