Are you a photographer and someone has used one of your photographs on their website without your permission? Or, maybe you are a writer and a popular online blog has published your short story claiming they wrote it. Or, perhaps, someone has lifted a selfie you posted on a social media account and is now using it to harass you online.
In each situation, you may be able to stop the infringing activity by exercising your intellectual property rights under the Digital Millennium Copyright Act (DMCA) and sending a DMCA takedown notice.
In theory, having an attorney prepare and send a DMCA takedown notice is a straightforward process. Most copyright matters can be evaluated in a matter of minutes and the preparation of a DMCA takedown notice itself does not take much longer. However, the reality of sending an effective DMCA takedown notice often deviates significantly from theory and requires great care and strategic consideration when drafting.
At Minc Law, we have extensive experience drafting and sending effective DMCA takedown notices to websites, search engines, and online platforms, to protect our clients’ intellectual property.
The major factors which may impact the costs to prepare and send a DMCA takedown notice include:
- Confirmation that the copyright claim is legitimate;
- Identifying any potential legal defenses to the copyright takedown notice;
- The type of platform the DMCA takedown notice will need to be sent to;
- The number of platforms and websites containing the copyrighted content;
- The amount of copyright content posted online;
- The necessity of follow-up action to ensure the infringing content does not reappear.
Every copyright infringement matter is different, so there is no one-size-fits-all answer when it comes to the total costs of preparing and sending DMCA takedown notices.
Below, we take a look at reasons why you should hire an attorney to send a DMCA takedown notice, the key factors influencing the total costs of sending a DMCA takedown request, how to choose a DMCA takedown provider, and how much DMCA takedown services cost at Minc Law.
Reasons to Have an Attorney Send a DMCA Takedown Notice
To determine whether you should send a DMCA takedown notice, first ask yourself (or an experienced internet attorney) whether you are the author or creator of the unlawfully posted content in question. The default rule is that an author or creator will own the copyright in the work that they create, even if it discusses or involves someone else as a subject of the work.
For example, a photographer that snaps a photograph of a model will own the photographic work (not the model) and a videographer will own his or her video footage (not the person filmed). Therefore, being the subject of a work does not automatically make them a copyright owner.
Contracts and other privacy laws can alter the default position laid out here, but this is the general starting point when deciding to send a DMCA takedown notice.
Experienced Internet Attorneys Can Make Sure You Cover All of Your Legal Bases
An experienced internet attorney can help you send an effective DMCA takedown notice by ensuring that all of your legal bases are covered and avoid common pitfalls that may reduce its efficacy.
Copyright takedown requests require strict compliance with federal law and each element of a copyright takedown claim must be met. A copyright claim will be rejected if it covers most of the important information but omits a small, but necessary component.
There is also the risk of the recipient of the DMCA takedown notice alleging that you sent it in bad faith or that it is frivolous. If successful, you could be liable for civil damages.
Attorneys Can Help You Organize Evidence & Materials
An experienced internet attorney can help you gather and organize evidence and materials for an effective DMCA. For example, an attorney can analyze and compare the original version of the copyrighted work to the infringing work to identify if:
- Any substantial similarity between the two exists, and if the
- Level of copying amounts to misappropriation.
An attorney will also be able to identify any other relevant documents or information that can be used in support of a DMCA takedown notice or provided in support when the recipient disputes your ownership of the copyrighted work.
To find out more about the importance of hiring a defamation lawyer to send a DMCA takedown request, make sure to read our blog post, Why Should I Hire An Attorney To Send A DMCA Takedown Notice?
What Goes Into the Legal Costs of Hiring an Attorney to Submit a DMCA Request?
The cost of preparing and sending a DMCA takedown request depends on many variables and there is no one-size-fits-all answer. Copyright infringement cases require specialized expertise and strategic considerations, as they can include countless unique factors that influence total costs.
Below are the driving factors that influence the cost of hiring an attorney to submit a DMCA request.
Factor #1: Evaluation of the Copyright Claim
The first thing your attorney must do is determine if you have a legitimate copyright claim. In some cases, making this decision is obvious and easy. For instance, if the copyright infringement involves a selfie you took, it will be fairly clear that you are the sole copyright owner of that image. However, even then, there are exceptions to copyright that allow others to use your selfie.
Two common exceptions may include:
- Fair use, and the
- Terms of service of the website or app that hosts your selfie.
By uploading your selfie, you may have agreed to grant other individuals certain rights to your picture.
At Minc Law, our attorneys can usually determine if you have a legitimate copyright infringement claim during your free initial, no-obligation attorney consultation.
In a situation where the copyright infringement issue is more complex, an attorney may need more time to evaluate the merits of your claim. Depending on the novelty and complexity of your issue, further research and assessment of your claim can increase costs.
Factor #2: Preparation of the DMCA Request
The next cost variable to consider is the time and effort to prepare the DMCA request. A DMCA takedown request can usually be easily submitted online. There is no requirement that the request is filed at a courthouse or have any accompanying legal documents.
However, the request must be made in good faith and in accordance with the law. This means DMCA notices must be drafted without any errors. Even the smallest error can lead to a recipient justifiably rejecting an otherwise lawful DMCA takedown request. Section 512 of the Digital Millennium Copyright Act requires that a valid DMCA request include the following six elements:
- Identification of the copyrighted work that is being infringed.
- Identification of where the infringement is taking place, e.g. the URL to the website that is posting the copyrighted work.
- A good faith statement that you believe the work is not authorized by the copyright owner.
- A sworn statement that you are the copyright owner or are otherwise allowed to act on the copyright holder’s behalf (ex. You are a designated DMCA agent).
- A name and electronic signature.
- Sufficient contact information so that you or your attorney can easily be reached.
Factor #3: Type of Website That Will Receive the DMCA Takedown Notice
This is where a relatively simple DMCA takedown notice can become complicated. The attorney and paralegal handling your case will first confirm the official business entity responsible for posting the offending content. Then, the DMCA request will be sent to that entity or its designated agent.
Many reputable websites like Pinterest, Facebook, and Instagram, make it easy to send a DMCA request. These websites often have their official business and related information on their website or in their terms of service.
For instance, a reputable website will have either a dedicated form-submission page or email address for DMCA takedown requests. After a DMCA request has been received, the site or platform will typically respond within 48 to 72 hours.
Oftentimes, the website where the copyrighted material is posted will agree to honor your request and remove the content at issue without any need for attorney follow up. In fact, the only response you may receive will be a customer service email informing you that the infringing content has been removed.
Costs can easily increase if you plan to send the DMCA request to a less-than-reputable website, such as a gossip site, cheater site, or public shaming website. These types of websites can muddle the DMCA takedown process in several ways.
First, identifying the official business entity to send the DMCA request can be unclear. For example, a website may not identify the individual or business that owns the website. Other times, the website may require that DMCA takedown requests be sent to a particular person. However, they make it difficult to find the contact information for that person.
This extra time required to identify the party or entity behind the website to send your DMCA takedown notice can increase total costs.
Second, these types of websites are usually slow to either acknowledge the DMCA request or determine if they will remove the copyrighted content.
If either situation occurs, your attorney may have to go that extra step to reach out to a website’s registrant or hosting provider. Many hosting providers have special policies in place that allow them to take action if a website fails to comply with a valid DMCA request.
Factor #4: The Number of Instances of Copyright Infringement
The fewer instances of copyright infringement, the easier it is to send a DMCA takedown notice. But there is a big caveat to this. It is usually easier to remove multiple copyrighted works from a single platform than it is to remove a single copyrighted work from multiple platforms.
This is because infringing content that is posted on multiple websites will require its own DMCA takedown request to be sent to each website.
To illustrate, suppose you own the rights to 150 pictures, and someone posts all of them on a single website. The DMCA takedown process for all 150 pictures would only involve sending a single DMCA request to that one website. This is the case even if each photo is posted on a different URL or webpage, as long as they are all on the same site.
In contrast, assume that you own the rights to just one photo. However, that single photo is posted on 10 different websites. The DMCA takedown process will require you to send a DMCA request to all 10 websites. This will inevitably take more time than submitting a DMCA request to a single website.
Now imagine that all 10 websites are of the less-than-reputable kind. It is easy to see how total costs can quickly increase, even if there is only one copyrighted picture at issue.
But there is some good news. Preparing a DMCA takedown request does not significantly differ from platform to platform. This is especially true among the more popular and reputable online platforms.
Reputable online platforms typically use the same, general DMCA request form. An experienced internet attorney or paralegal can easily swap out the unique information, such as a business’s name and URL where the offending content resides. These changes and additions to an existing DMCA takedown request will, however, add to the total costs of the DMCA takedown process.
When there is mass copyright infringement, DMCA request and removal costs will increase. This is because your attorney will spend considerable time identifying and compiling a list of URLs and references to the infringing content. Then, your attorney or a paralegal will need to confirm that each post and/or instance is a copyright violation.
Sometimes the services of a paralegal can help reduce the total costs, given a paralegal’s lower billable rate. But with such a large number of copyright infractions, time and costs can quickly add up.
For a situation where there is a significant amount of infringement, you should expect to spend more money. For example, your attorney will need to spend additional time, and bill accordingly, just to identify and confirm all possible copyright violations. There is also the time spent by your attorney preparing and sending the DMCA requests and tracking their progress.
Factor #5: The Need For Follow Up DMCA Requests
In the best-case scenario, a DMCA takedown request is a quick and straightforward process. However, there is the possibility of future copyright infringement. It is not uncommon for someone to ignore the fact that they were told the content was copyrighted and publish it again. Subsequent infringement can occur even if the website or platform quickly removed the infringing content the first time.
Anyone who “possesses” or has access to the copyrighted content can choose to re-upload that same copyrighted material again, even on the same website.
If this happens, the most time and cost-efficient approach is to send another DMCA request to the website where the content is posted. You can also take legal action against the offender. But that process will be far more expensive than sending a follow-up DMCA request to the website.
Because the DMCA takedown notice will be sent to the same website(s), this follow-up request can be prepared and sent in just minutes and should not significantly impact the total costs of your DMCA matter.
Finally, a website or platform that receives a DMCA request requiring them to remove copyrighted material for a second time may choose to ban or suspend the account of the person continuing to violate your copyright. In most situations, this is enough to stop the content from being re-uploaded.
Minc Law Copyright Infringement Tip: To learn more about the DMCA, feel free to check out our article, The DMCA & How to Send an Effective DMCA Takedown Notice. To get a better understanding of legal fees and how they work, please read the following article: Retainer vs. Flat Fee vs. Contingency – What Does It All Mean?
What to Do After Your Attorney Has Sent a DMCA Notice
The most common outcomes of filing a DMCA takedown notice are removal or rejection. If the copyrighted work is removed, you can consider your endeavor a success. However, if the person or website you sent the DMCA notice rejects it, you may need to speak to your attorney to determine your next legal steps and remedies.
Keep in mind that a rejection could come in the form of the recipient simply ignoring your DMCA takedown notice and pretending they never received it.
In some cases, a copyright claim may be met with a DMCA counter notice, but such instances are rare. That is because the remedies for copyright violations (including frivolous claims) are generally limited. Furthermore, it can take significant time and legal costs to successfully sue someone for (allegedly) sending a frivolous or bad faith DMCA notice.
When the DMCA Takedown Request Does Not Work: Getting a Subpoena to Identify the Copyright Infringer
In cases of repeat copyright infringement, it may be time to work with an experienced internet attorney to hold the person behind the infringing content liable.
To do this, you must first identify the person (or people) who continues to violate your copyright and intellectual property. Federal law enables victims of copyright infringement to issue a copyright subpoena to an internet service provider for identification of an alleged infringer.
Obtaining a subpoena is usually more expensive than the DMCA takedown process. But when a copyright infringer does not cease their infringing activity, obtaining a subpoena can actually save more money in the long run.
The cost of obtaining a federal copyright subpoena will typically require several hours of an attorney’s time. There are also filing fees and the cost of service of the subpoena on the website owner or business entity.
Naturally, obtaining a subpoena to identify an anonymous copyright infringer can increase attorneys’ fees and the total costs of a copyright infringement case. The total costs of your copyright matter will depend on the:
- Amount of copyrighted content that you want to remove,
- Ease in which the attorney can prepare the subpoena paperwork, and
- How quickly the federal court clerk processes the subpoena request.
Bad Faith DMCA Takedown Requests & Counter Notices
Sometimes a DMCA request is made in bad faith. Other times, a person unknowingly tries to assert a deceptive or false copyright claim. Either situation can lead to problems should the recipient of the DMCA request decide to push back. In certain situations, the user or platform can seek legal relief, including damages and an award of attorney’s fees.
Given this potential, the DMCA takedown request process should not be taken lightly. If you are considering sending a DMCA request yourself to save time and money, you must fully understand the legal consequences if you are wrong or if the recipient decides to fight back.
Given the high cost of litigation, it is rare for someone to take legal action because of an improperly sent DMCA request. But the potential is always there. It is critical to speak with an experienced internet attorney to ensure that your DMCA request is warranted and properly prepared before it is submitted. Doing so will help eliminate any chance of being on the receiving end of legal action from another party or a court for the misuse of the legal system.
Minc Law Tip: Depending on your situation, it may not even be worth sending a DMCA takedown notice. This is because the entity posting the offending content may retaliate. Not only might they ignore your request, but they might also draw further attention to the copyrighted material by publicizing the fact that you sent them a DMCA takedown request. Or even worse, they might publish the copyrighted material on other parts of the internet. This is one example of the Streisand Effect.
How to Choose a DMCA Takedown Service Provider
Conducting a Google and web search can provide you with immediate access to dozens of copyright takedown services, attorneys, and agencies. It is always best to conduct your own due diligence and shop around. This will not only save money, but it will ensure the best chance of success. When looking for a reputable DMCA takedown service provider, the best providers should demonstrate:
- Knowledge, and
- Accountability to their customers.
Look for whether a provider treats each client as having a unique situation or the same as all the other clients they serve. Always opt for the former. The more automated a DMCA takedown provider’s services, the more likely you could run into problems down the line.
Most DMCA takedown services only include the submission of a copyright claim and do not get involved with the DMCA subpoena process. Many takedown service providers will not provide any assistance after the DMCA notice is sent. Others will help if there is a counter notice, but only for an additional fee.
Some providers may even provide other benefits such as search engine de-indexing or cease and desist notices. It is critical to conduct your own research before engaging a DMCA takedown service provider so you know exactly what you are paying for and what you can expect.
How Much Do DMCA Services Cost at Minc Law?
We pride ourselves on transparency and understand that the cost of legal representation is at the forefront of every client’s mind. Now that we have addressed the above factors that drive the total costs of preparing and sending a DMCA takedown notice, we will review the typical costs for DMCA services at Minc Law.
At Minc Law, copyright infringement and DMCA services usually only form a part of a broader representation that we provide for internet defamation, online harassment, online extortion and sextortion, revenge porn, and online investigation matters. Oftentimes, a client will retain us for DMCA services after hitting a dead end on their DMCA claim or to assist with related internet attacks.
Minc Law attorneys can usually determine if you have a valid copyright claim during your free, initial no-obligation consultation. To maximize your free consult, we ask that you provide us with an in-depth explanation of your legal matter prior to the meeting.
For starters, if a client’s situation predominantly involves an hourly non-litigation copyright issue, we generally ask for a $3,500 to $5,000 retainer fee. This number could be higher depending on the factors involved in your case.
For example, if your copyrighted material is posted to several websites or a copyright subpoena is required to identify the anonymous infringer, this could lead to a higher retainer fee. If the work to remove the infringing material is completed for less than the retainer, the balance is refunded at the completion of representation.
Check out the video below to learn what a retainer fee is, what is included in a retainer fee agreement, and the key benefits to using one to finance your legal matter.
Video: What is a Retainer Fee Agreement?
After beginning work on your matter, we bill hourly against the retainer as work is performed and provide monthly invoices. Minc Law attorney rates range from USD $250 to $600 per hour.
Finally, if you require an emergency same-day consultation, we charge a flat rate for a single hour of the consulting attorney’s time.
You can find more information about non-litigation and litigation costs over at our Pricing Page.
Work With Internet Attorneys to Protect Your Copyright
In most cases, the DMCA takedown request process will not take months and cost tens of thousands of dollars. In many instances, you can resolve copyright violations for several hundred to several thousand dollars and in less than 72 hours. But you need to keep in mind that there are situations where the time and costs for a DMCA takedown notice can quickly increase.
For many clients, the enforcement of their copyrights is not the primary goal of sending a DMCA takedown notice. Rather, the clients are trying to address bigger problems, like:
Therefore, the DMCA takedown process is just one legal tool for dealing with these issues. An experienced internet attorney who is familiar with the Digital Millennium Copyright Act and the DMCA takedown process can help smoothly navigate these delicate legal waters and successfully remove infringing content. They can also provide additional guidance on dealing with related legal claims in a manner other DMCA services cannot.
Are You Still Considering Sending a DMCA Takedown Request?
If you have found your copyrighted material being used or posted without your consent on the internet, contact the experienced internet attorneys of Minc Law to help protect your copyright and hold intellectual property infringers liable for their actions.
If you would like a more personalized quote or advice, we offer a free, no-obligation initial consultation. You can reach us by calling (216) 373-7706, speaking with a Chat representative, or filling out our online contact form.
If you are interested in reading more about what to expect after reaching out to the Minc Law team and what information we need from you to set up an effective attorney consult, check out our blog post, “Thinking About Contacting Minc Law? Here’s What to Expect“.
“Minc Law and Dan Powell worked closely with us to get defamatory material removed from social media sites. We would not have been able to get this accomplished without them. They are true professionals, and have the resources and skills to guide clients through the process to a successful resolution.”
Jen Duncan, March 4, 2022