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Using the DMCA Takedown Notice to Battle Copyright Infringement

by Carolyn E. Wright | August 1, 2008

© Carolyn E. WrightFinding 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.

If you find a website that is using one of your images without permission, contact the hosting ISP to report the infringement. 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 them notification. Your copyright does not have to be registered with the U.S. Copyright Office for you to take advantage of this DMCA provision.

So how do you find the hosting ISP? You first do a “who is” search on the website name. We’ll use my wildlife photography website at www.vividwildlife.com as an example. Several websites provide “whois” service. Conduct an Internet search to find them. The search at www.whois.net looks like this:

Whois.Net domain research services screenshot

The results are:

Domain registrant details

Note there the domain’s server information. Conduct a “whois” search on DOMAINCONTROL.COM to find the company information that is hosting the domain proxy servers.

You may send your DMCA takedown notice to the administrator of the domain servers:

You also may find the DMCA contact information by using www.domaincontrol.com as the URL, which gives this result:

Global Whois - Domain Name Search screenshot

When you go to www.wildwestdomains.com, you’ll see a link to “Legal Agreements” at the bottom of the home page:

Legal Agreements

When you click on “Legal Agreements,” you’ll find the link to “Trademark and/or Copyright Infringement Policy.”

Trademark and/or Copyright Infringement Policy screenshot

There you will find the directions to make and the address to send your DMCA claim:

Copyright Claims screenshot

When you notify the ISP of infringement, your letter must meet certain requirements. Specifically, your notification must:

  • Be in writing;
  • Be signed by the copyright owner or agent; your electronic signature is OK;
  • 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 info;
  • 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).

Send a letter 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:

http://www.vividwildlife.com/Alaska.htm

http://www.vividwildlife.com/links.htm

Copies of the photographs being infringed are included to assist with their removal from the infringing websites.

Animal © Carolyn E. Wright

Bears fishing © Carolyn E. Wright

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 s 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.

Sincerely,

/s/ Carolyn E. Wright

Email: carolyn@photoattorney.com

After the ISP receives the notice, it should remove the infringing materials.

Infringements are much too common these days. Fortunately, there are tools to fight them—the DMCA takedown notice is one of the powerful ones.

About the Author

Carolyn E. Wright is a full-time attorney whose practice is aimed squarely at the legal needs of photographers. Carolyn understands the special issues that confront both professional and amateur photographers alike.

A professional photographer herself, Carolyn has the legal credentials and the experience to protect your rights.Carolyn wrote the book, the "Photographer’s Legal Guide," which was released in 2006 and updated in 2010. Carolyn specializes in wildlife photography and also provides legal information for photographers for free at www.photoattorney.com.

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