The Digital Millennium Copyright Act of 1998 (DMCA) enables copyright holders to request the removal of infringing online content. When it comes to removing unwanted online content, the DMCA provides a valuable tool known as the DMCA takedown notice.
If you discover that your images – or any copyrighted material – were posted online without your consent, sending a DMCA takedown request is an effective tool to remove the content.
A DMCA takedown notice (or DMCA request) is:
- A legal request to remove copyright-protected online content;
- Sent from a copyright holder or their designated agent;
- To the person who unlawfully posted the content, or the website, search engine, or web host where the content was posted.
At Minc Law, we have extensive experience sending DMCA requests on behalf of our clients to remove images and other copyrighted material from websites and search engines. Platforms often comply with legitimate DMCA notices, saving clients the expense of litigation.
In this guide, we provide an in-depth look at DMCA takedown notices (including when and how to send them) and relevant copyright laws. Then we outline the advantages and risks of sending a DMCA notice. Finally, we address how to respond to a DMCA notice if you happen to be on the receiving end.
Purpose of the DMCA Takedown Notice
To truly understand the purpose and origins of the DMCA, it helps to “rewind” a few decades. In the nineties, internet use became an everyday-use tool for millions (not just Americans). As more people logged on and logged in, website creation, online communication, and file-sharing exploded. With the advent of new sites, new legal problems emerged.
If you were online in the nineties, you may remember the file-sharing service known as Napster. Through Napster’s platform, someone in California could record a broadcast of their favorite song, upload it to Napster, and share the song with countless others.
Copyright holders (and music execs) filed suit when they discovered the free, unauthorized sharing of their content.
In Napster’s defense, they probably could not fathom how quickly copyright-protected files would spread across the internet. Even if they wanted to protect copyright holders’ rights, there was no way to effectively track and remove the millions of daily uploads.
The World Intellectual Property Organization (WIPO) established the Performances and Phonograms Treaty (WPPT) in 1996 to protect copyright holders online. As a WIPO member and signatory to the treaty, the U.S. Congress had to pass an Act enforcing the terms of the Treaty. In 1998, Congress passed the DMCA to protect copyright holders and internet service providers (ISPs) alike.
Of course, the Act would be meaningless if there was not a way to enforce its protections, thus the DMCA takedown notice was born.
What is a DMCA Notice?
First, it is important to note that we use the terms “DMCA Takedown Notice,” “DMCA Notice,” “DMCA Complaint,” and “DMCA Request” interchangeably in this article. Both terms carry the same meaning.
DMCA requests are a written notice, sent from a copyright holder to a web host, search engine, or internet service provider. The notice informs the recipient that protected material was uploaded to their platform without permission.
If an online platform refuses to comply with a legitimate DMCA notice, they can be held liable. So, web hosts and search engines have a vested interest in removing infringing content as long as they receive adequate notice.
Even with today’s technology, online platforms could hardly monitor every piece of user-uploaded content. By allowing DMCA requests, Congress provided an efficient method of removing copyrighted and stolen content without overly burdening web hosts.
After all, most social media platforms and websites do not stand to gain anything by distributing copyrighted content. But, they can inadvertently assist others to share protected content. There had to be a way for copyright holders to remove their stolen content from online platforms without forcing the platforms to track every individual post.
Who Can File a DMCA Request?
A copyright holder can send a DMCA request to an internet service provider on their own or with the help of an experienced professional. Because DMCA requests must include certain language, it is wise to consult with a professional to ensure the Takedown Notice is drafted correctly.
You automatically hold a copyright as soon as content is “fixed in a tangible form” even if you have not registered the content with the U.S. Copyright Office. This means you can take a selfie and will immediately become the copyright holder of the image as soon as it is taken. If someone hacks into your phone or cloud and shares the image without your permission, they are infringing on your copyright.
Determining who a copyright holder is, however, is not always intuitive. A creator can sell or assign copyright protections to another individual or company.
For example, a musician may assign their rights to a record company via contract, making the record company legal copyright owner even though they did not create the work.
What Type of Content Can Be Removed With a DMCA Takedown Notice?
A DMCA request is a streamlined way to remove content without litigation. One of the key benefits of the DMCA takedown notice is that it is straightforward and affordable. If the user who shared the infringing content is anonymous or unknown, a DMCA complaint can also be used to issue a subpoena without an expensive lawsuit.
Any content protected by copyright law can potentially be removed with a DMCA takedown Notice. U.S. Copyright law protects any original work of authorship, including:
- books, memos, and other written materials,
- illustrations, designs, and art,
- computer software code.
The types of content protected by copyright is broad and extensive. If you are unsure whether any of your content could be protected, it is worth consulting with an intellectual property attorney. While the DMCA is a U.S. law, copyrights are an international legal concept, so you may even have protections outside of U.S. boundaries.
When is The Right Time to File a DMCA Takedown Notice?
As with any form of legal request, time is of the essence. As soon as you discover infringing material online, you want to send a DMCA takedown notice. Although, this may be easier said than done.
Not all infringing content is discovered immediately, and some people are not sure whether their work is even covered by copyright laws.
What is Copyright Infringement?
The U.S. Copyright Office defines copyright as legal protection for “creators of an original work that is fixed in a tangible form of expression.” Any work created with “at least some minimal degree of creativity” (like those we listed before) can be protected.
Copyright holders have the exclusive rights to reproduce their work and create works inspired by their original work (like a song remix). They also have the exclusive right to distribute, display, and perform their work.
Copyright infringement occurs when someone uses a copyrighted work without authorization. If someone reproduces even a portion of copyrighted work (or distributes, displays, or performs the work) they can be subject to strict penalties, such as statutory damages, attorneys’ fees and court costs, and even imprisonment up to five years.
To prevail on a copyright infringement claim, the copyright holder must prove:
- They have a legal right to the copyright, either as the original creator, assignee, or purchaser of the content.
- The infringer duplicated the original work or created content that is “substantially similar” to the original work. This will involve showing how the alleged infringer could have accessed the original work.
- If only a portion of the copyrighted work was duplicated, the copyright holder must show that the copied part was also protected work.
Copyright Infringement Examples
Since the concept of copyright infringement covers a broad array of works and infringing activity, it is best illustrated by examples. Five common examples of copyright infringement include:
- Reposting your photograph or video without permission,
- Using a logo you created without permission,
- Sharing a song you wrote or performed without permission,
- Revenge pornography, and the
- Unauthorized distribution of creative works that you have purchased.
Someone Reposts Your Photo or Video
As a general rule, you automatically have copyright protection for any photo or video that you have made yourself. If you take a selfie or record yourself, you become a copyright holder the second the photo or video is made.
Say you decided to upload a selfie to Instagram. A few days later, you are scrolling through your feed and notice someone else has re-posted your photo without your permission. Now a complete stranger is “winning internet points” with YOUR photo!
This is one of several situations that calls for a prompt DMCA takedown notice.
You may also find yourself at the receiving end of a DMCA request if you share a photo without permission.
Say your friend is an aspiring photographer and they took some great photos of you at the beach. They share the photos to their online portfolio and you proudly re-post the pictures on your social media. Your friend can serve you with a DMCA takedown notice!
This brings up an important point: the person who took the photo (and not the subject) is the legal copyright holder.
Someone Uses a Logo You Created
With the spread of websites and online shopping, graphic design has become a booming career for many. You do not have to look far on the world wide web to find great, artistic examples of logos. But browser beware – you do not have the right to use logos you find online (unless the artist gives you permission).
Even some “open-source” logos are limited to non-commercial use. So, you could still be infringing a creator’s rights if you use a logo found online without due diligence.
If you are a graphic designer employed by a company, on the other hand, it is possible the company may own the rights to work they pay you to create. Before using or sharing any logo online, it is advisable to have a discussion with the creator (or your employer) about copyright ownership.
Someone Shares a Song You Wrote or Performed
Music is one of the first things that come to mind when most people think of copyrights. An individual, collection of performers, or record company may own the rights to song lyrics and any accompanying musical arrangements.
If you upload a video playing a piano tune you have written yourself and another content creator uses your tune as background music for their YouTube video, they are infringing your rights. You can send the alleged infringer and/or YouTube a DMCA takedown notice to get the content removed.
Curious about removing defamatory YouTube videos? Make sure to check out our comprehensive article explaining how to remove videos from YouTube.
Revenge porn occurs when someone shares your private content online without your consent. With the advent of platforms like Tinder and Only Fans (as well as “cheater websites”), revenge porn and revenge porn websites have become a major international concern.
Even if you share an intimate photo with a partner, that does not give them permission to share the photo online. If something like this happens to you, one quick way to get the content removed is with a DMCA complaint.
You may want to preserve copies of content as evidence, because you may also be able to pursue criminal charges under relevant revenge porn laws against a predator who publishes and distributes your intimate images without consent.
Creative Works That You Have Purchased
You may also have copyright protections for work that you did not create on your own. If you have a business and solicit a photographer to take photos for your website, you may be able to purchase the copyrights.
In fact, many businesses request that artists (like web designers and photographers) sign a work-for-hire agreement, a contract that transfers copyright ownership from creator to purchaser. If you later discover that other individuals are sharing the images that you own the rights to, you can send them a DMCA request.
You may also be able to buy a copyright after-the-fact to get unwanted content removed from the internet. To clarify, say you modeled for a professional photographer and later find some of the photos uploaded to a website where you would rather not be featured.
You contact the photographer (who holds the copyright), and they admit they posted the photos on their website but did not re-post them on the scandalous site. The photographer is not willing to pursue legal action to get the re-posts removed from the internet, but they are willing to sell you the copyright.
Once you purchase the copyright to the photos you can send DMCA requests to get the content removed from the other site.
What is Fair Use?
Fair use is one of the major exceptions and an affirmative defense to a claim of copyright infringement. Section 107 of the Copyright Act lists situations where a work can be reproduced without infringing on a copyright.
A third-party can use copyrighted content if it is substantially changed. They can also duplicate material for the purposes of criticism, comment, news reporting, teaching, scholarship, or research. It is critical to know when something falls under the fair use exception, because you should not file a DMCA request for fair use content. However, determining whether something constitutes fair use can be tricky.
When courts must analyze whether copyrighted material has been fairly used, they consider four major factors:
- The purpose of the “fair use;”
- The nature of the original work;
- The amount of copyrighted material used; and
- The effect the use will have on the potential value of the work.
Below we address each of these factors in greater detail, with some examples.
1. The Purpose & Character of the Use
If the work is being used for commercial purposes as opposed to non-profit or educational reasons, it is less likely to be fair use. In Religious Technology Center v. Lerma, 908 F.Supp. 1353 (E.D. Va., 1995), the court considered whether the reproduction of quotes from the Church of Scientology was infringement.
Specifically, the court had to determine whether the Washington Post’s use of three quotations (taken from the Church’s website) was fair use. The court found that the Washington Post’s actions were “fair use” because the main purpose of the reproduction was for news commentary.
2. The Nature of the Copyrighted Work
The more creative or imaginative a work is, the less likely it is fair use. Factual works (like technical articles) are more likely to be considered fair use.
The nature and use of copyrighted materials came under fire in American Institute Of Physics v. Schwegman, Lundberg & Woessner, PA (D. Minn., 2013). After the defendant law firm (Schwegman, et. al) copied portions of the plaintiff’s scientific journal articles for the purpose of patent applications, the scientific journal sued.
The court found the law firm’s actions constituted fair use primarily because the original work was “factual or informational” in nature. Also, the firm did not attempt to enter the plaintiff’s “traditional target market” for the articles but rather supplied the copies to a U.S. government office for the purpose of securing patents.
3. The Amount of Copyrighted Material Being Used
If only a small portion of a copyrighted work is used, the more likely courts are to consider the reproduction fair use. An example of this factor in action can be found in Twin Peaks v. Publications Int’l, Ltd., 996 F.2d 1366 (2nd Cir. 1993).
If you were an adult in the early nineties, you might remember the sci-fi series, “Twin Peaks.” Looking to profit from the popularity of the show, a company published the book, “Welcome to Twin Peaks: A Complete Guide to Who’s Who and What’s What.”
Upon review, the court found that the publisher had taken a substantial amount of material from the show, including quotations, paraphrases, and plot descriptions (among other things). Given the amount of material taken, in conjunction with adverse marketability for future books, the court found the publisher did not fairly use the copyrighted material.
4. The Effect the Claimed Use Will Have on the Potential Value of The Copyrighted Work
The court will look at how the claimed fair use might harm the copyright owner financially or impact the market for the original work.
The case of Hustler Magazine, Inc. v. Moral Majority, Inc., 606 F.Supp. 1526 (C.D. CA, 1985) hinged primarily around this factor of the “fair use” test. The California case arose after Hustler publisher, Larry Flynt, made statements about Reverend Jerry Falwell in his popular adult magazine. Falwell found the statements disparaging and started a fundraising effort for his religious organization in response.
Falwell’s fundraising efforts included several thousand copies of the Hustler page, showing the statements made against Falwell. The magazine filed suit, alleging that Falwell committed copyright infringement when he distributed copies of the magazine page.
The Court determined that Falwell’s copies constituted “fair use” of the material because it did not diminish the sales of the magazine or have a negative impact on the magazine’s marketability.
What Steps Should You Take Before Filing a DMCA Takedown Request?
Before you send a DMCA takedown notice, there are a few steps you should take.
First, determine if a DMCA request will be the most effective method of content removal in your particular situation.
If, for instance, you want a negative or defamatory article about your business removed from the internet, a DMCA request probably will not be enough. The DMCA request might remove any copyrighted photos associated with the article but will not remove the unwanted article itself.
On the other hand, you may not want to commit to the costs of litigation. If this is the case, it is best to try other steps that are free (or more affordable).
Minc Law DMCA Tip: Curious about the total costs of sending a DMCA notice? Make sure to check out our extensive article detailing how much a DMCA takedown notice costs.
Second, research whether the offending website, host, or search engine is located in the United States. Foreign jurisdictions do not have to comply with U.S. laws – but some may comply voluntarily. This is definitely something to discuss with an experienced DMCA attorney before you send a DMCA request.
Then, consider whether a DMCA request could backfire. A phenomenon known as the Streisand Effect can occur when an attempt to censor online content draws more attention to the issue. If there is a chance your DMCA request could trigger the Streisand Effect, it is probably best to pursue an alternative removal strategy.
Another step to take before filing a DMCA takedown is to reach out to the person who posted the content. If a close Facebook friend posted an unflattering picture of you a simple message about why you want to picture removed may suffice.
Of course, any contact with another person should be carefully considered. Making legal threats or using inappropriate language could backfire and make matters worse.
How to File a DMCA Takedown Notice
While a DMCA request may appear simplistic to the untrained eye, there are plenty of tiny details that go into filing a request. Omitting even a single detail could lead to the denial of your DMCA request. If companies do not receive DMCA takedown notices with specific language and explanations, they do not have to comply with your request.
It is critical to understand how to send a DMCA takedown notice before actually sending one and potentially causing more harm to the situation at hand. It is also important to note that filing and sending a DMCA takedown request are the same thing (and we use both words interchangeably).
When filing a takedown notice, there are two steps you should take:
- Identify where to send the notice, then
- Draft the notice and ensure you meet all requirements
Identify Where to Send the DMCA
The first step to sending a DMCA request is knowing where to send it! You can send the request to the person who published your content, the website where the content is published, the hosting or internet service provider, or the website registrar.
You can find this information for free using whois.domaintools.com, whatismyipaddress.com, or infosniper.net. You may also be able to find DMCA-related contact information in a website’s Terms and Conditions policy.
Draft the DMCA Takedown Notice
This is where things can get really tricky. DMCA requests have strict requirements and can be invalidated by a seemingly minor error or omission.
A valid DMCA request must include the following six elements:
- Identification of the original copyrighted work in question.
- The location and identification of the infringing content you want removed. It is not enough to provide a link to a page containing tons of content (e.g., “YouTube.com”). You will want to specifically identify the infringing material (e.g., “The copyrighted material is featured from the 10-minute timestamp to the 12-minute timestamp of this YouTube video). You will want to be as specific as possible, while ensuring that you are identifying all copyrighted content (if there are multiple or lengthy infringements).
- A statement that you (or the person sending the notice on your behalf) have a good faith belief that the identified material is being used in a way that is not authorized.
- A statement that all information contained in the request is accurate under penalty of perjury.
- A physical or electronic signature. If using an electronic signature, you must indicate that the request was actually signed (usually with an “/s”) and not simply completed by a form-filler application.
- Contact information where the copyright owner or their authorized representative can be reached. This usually means name, email address, mailing address, and telephone number.
If you neglect any of these elements, the recipient can ignore your request. Likewise, failing to provide enough specific information within the request can result in a rejection.
The DMCA Takedown Process Timeline
The exact timeline for a DMCA takedown can vary from 24 hours to 6 months, depending on the circumstances. Processing time can depend on how busy the DMCA request recipient is, how complicated their website is, and if they have any disputes about the validity of the Notice.
If the site allows posts from third-party users, like a social media platform, they will provide the user notice and an opportunity to respond. The user may opt to remove the content, dispute the request, or file a counter-notice. If the user files a counter-notice, you may have to file a copyright infringement lawsuit to remove the content.
Do I Need an Attorney to Send a DMCA Request?
Technically, you do not need an attorney to submit a DMCA request on your behalf. But it is worth remembering that even one mistake can render your request invalid – and the content will remain online.
Hiring a DMCA attorney or law firm can be most helpful in the following situations:
- If the unwanted content is sensitive, like revenge porn, you may not want your name attached to the request. An attorney can help you send the request while protecting your identity.
- If you cannot identify the person infringing your copyright and you need assistance in figuring out where to send it. An attorney can help determine the best person to contact. Sometimes, a DMCA takedown notice may need to be sent to multiple contacts.
- If you are concerned that you are not meeting all of the requirements in the DMCA notice.
- If you sent a DMCA takedown notice already and have not gotten a response.
If you want extra help in filing a DMCA takedown notice, but you are not sure if you want an attorney, you have the option of hiring a DCMA company or designated agent to submit a request on your behalf.
These agents may not be lawyers, but they typically have experience sending DMCA requests. They may even have relationships with certain sites with which they frequently interact.
Finally, if content removal is your biggest concern (as opposed to damages caused by copyright infringement) you may have other removal options. An experienced content removal attorney can help you choose the best strategy according to your goals.
For example, you may be able to request that search engines de-index the content, so it does not appear in search results for your name. You may also be able to utilize other legal remedies like obtaining a court order to remove content or even litigation.
Risks of Sending a DMCA Request
Even when you prepare the DMCA takedown notice perfectly, problems can still arise. More often than not, websites ignore an invalid request without even responding. But in limited cases, someone could retaliate or dispute your allegations.
If this happens, it is recommended that you retain the services of a DMCA takedown attorney to help you through some of the following potential scenarios.
Your Request is Denied
The best-case scenario is that your request was denied due to a minor, fixable error. If the recipient denies your request because they claim, “fair use,” you have a slightly bigger problem.
You can only dispute “fair use” by filing a copyright infringement lawsuit. Filing a lawsuit is significantly more time-consuming and costly than sending a DMCA request.
DMCA Counter Notices & Fair Use
Simply put, a counter-notice is a response by someone responsible for the copyright-infringing material. If they have a good faith belief that the material is not infringing (or was wrongfully removed) they can file a counter-notice.
When someone sends a counter notice, it is a sign that they are prepared to defend their case. By sending the counter-notice, they consent to be sued over the disputed content.
Retaliation is a particularly hairy issue that can arise after the receipt of a DMCA request. No matter how polite or professional your request, some people do not respond well. Some recipients share your DMCA request publicly, which may draw more attention to the very content you want to be removed.
Other recipients have been known to up the ante – by posting new content about you, doxing you, and publicly ranting about your request.
Attorneys who regularly handle DMCA requests are familiar with these risks and may be able to help avoid them. Your attorney will have experience reaching out to the most appropriate party and drafting a firm but respectful request. They can also protect your privacy by filing the DMCA complaint on your behalf.
Defamatory Content May Not Be Removed
Even an effective DMCA takedown notice will only remove online content that infringes copyright law. If, however, there is other unwanted online content (like defamatory statements or other non-infringing content) it will remain online.
If, say, a disgruntled ex-employee posts your image along with an incriminating (yet untrue!) blog rant – the image may be removable under the DMCA, but the rest is not. The negative search result and nefarious claims could remain online for all to see.
If you are in a situation like this, an internet defamation attorney can help you pursue both your copyright and defamation claims.
You Could Be Sued
Section 512(f) of the DMCA allows victims of frivolous or bad faith copyright takedown notices to sue anyone who sends the frivolous notice.
While these lawsuits are rare and difficult to prove (unless the bad faith or frivolous nature is very obvious), there is a risk that you could have to defend yourself in a lawsuit.
How to Respond to a DMCA Takedown Notice
If you receive a DMCA takedown notice for content you posted, the first thing you should do is verify that you are not actually infringing someone else’s copyright. If you are violating someone else’s copyright, you should immediately cease what you have been doing. This may include removing the content anywhere you have posted it online.
Secondly, you want to closely examine the language of the notice. Ensure the notice contains all the necessary details we previously discussed. You may choose to voluntarily comply with a flawed request if you feel that you truly infringed someone else’s content. But, you are not legally obligated to comply with an erroneous request.
If you believe the content constitutes fair use or believe you are not infringing anyone else’s rights, you may be able to send them a counter-notice. For instance, if the person does not own copyright over the content or the content is not protected by copyright a counter-notice is probably the best response.
If you believe the content is covered by the fair use exception, you may want to consult with a lawyer before sending a counter-notice. Because fair use is hard to determine (even among lawyers) it is best to determine if you have a strong case before sending a counter-notice on the basis of fair use.
We Can Help: Work With Minc Law to Send a DMCA Takedown Notice
An experienced DMCA attorney can help you analyze whether a DMCA takedown notice is your best option for removing online content. They can also help you obtain copyrights, preserve your anonymity, and reduce the risks involved with copyright ownership.
At Minc Law, we have removed over 50,000 pieces of content and know how to use DMCA requests to your advantage. We can help you evaluate your legal options for content removal and ensure you are taking the appropriate steps to protect your rights.
“Unbelievable! I am a C Suite executive who has dealt with the top law firms and Aaron, Daniel, and Kaelynn and team are superior in the quality and execution of matters than most of these firms. When I had an urgent issue arise related to defamatory content online, Aaron and his team jumped on the matter immediately and within a few days had the content down and deleted. Moreover, we have not stopped there and have initiated litigation to ensure that these are repercussions for such comments. I am writing this out of my own volition and at my urging because I would like others to know that if you have any issues with content online about yourself, you don’t have to feel helpless and can proactively identify and hold those responsible accountable. Thank you Minc Law firm. From bottom of my heart.”
Anonymous, Dec 11, 2020
If you are ready to move forward with a DMCA request, schedule a free consultation by calling (216) 373-7706 or completing our online contact form.