Art Law Corner: Someone On The Internet Is Using My Work Without My Authorization.

Someone on the internet is using my work without my authorization. What can I do?

There is quite a bit you can do. Regardless of whether someone else is using your painting, song, video, film, article, podcast, design, etc. without your authorization, there are steps you can take to get the image removed and identify the infringer so that you can decide whether you’d like to bring a lawsuit for copyright infringement.

The first step is often to submit what’s called a DMCA takedown notice. In 1998, the Digital Millennium Copyright Act (DMCA) was signed into law. The DMCA extended US copyright law and clarified the rights of creators in relation to digital media. It includes provisions that allow for copyright holders to provide service providers with notice of infringing materials so that the providers can remove these materials from their sites.

A DMCA takedown notice is relatively straightforward and can be sent by the creator or an agent of the creator (often their attorney). The DMCA is clear about what the takedown notice must include. See 17 U.S.C. § 512(c)(3)(A). The notice should be addressed to the designated agent of the service provider hosting the infringing material, and must contain:

• The signature of a person authorized to act on behalf of the copyright holder;

• Identification of the copyrighted work claimed to have been infringed (if there are multiple such works on the site, a representative list);

• Identification of the infringing material and information sufficient to allow the service provider to locate the material (a link, for example);

• The contact information for the copyright holder or their agent; and

• A statement that the information in the notification is accurate, and under penalty of perjury, that the party filing the notification is authorized to act on behalf of the copyright holder.

Service providers typically included an address, both email and physical, for creators to send DMCA takedown notices to (their designated agent). Unsurprisingly, different service providers take different amounts of time to respond to such notices and remove the material, but it can often happen in a matter of days.

What happens next?

Once a service provider receives a takedown notice, according to the DMCA, they must act “expeditiously” to remove the infringing material. See 17 U.S.C. § 512(c)(1). They then must take reasonable steps to notify the party that posted the infringing material that they have removed or disabled access to the material. That party may then file a counter-notification, which essentially claims under penalty of perjury that the party properly posted the material. The counter-notification must include the party’s name, contact information, and a statement that the party consents to the jurisdiction of the federal court in which they live for any lawsuits that arise over the material. Infringers are often reluctant to provide this information under penalty of perjury.

Do I need to have registered my work with the US Copyright Office to submit a DMCA takedown notice?

No, but it’s helpful. While you need to register your work with the US Copyright Office to file a lawsuit against a copyright infringer in federal court, you do not need to register your work to submit a DMCA takedown notice. (The benefits of registering your work with the Copyright Office will be detailed in a different post.)

However, if the infringing party decides to submit a counter-notification, you would only have approximately two weeks to sue them for copyright infringement before the service provider must re-host the infringing material. Since it can take several months to register a work with the US Copyright office, and you cannot bring a lawsuit until its registered, the infringing material could end up back online.

Once the images are taken down, how can I go after the infringer?

If you know who the infringer is, and you have registered your work with the Copyright Office, you can file a lawsuit in federal court seeking up to $150,000 per infringement.

If you do not know who the infringer is, or if you just have an online persona that you can’t connect to an actual individual, you can file what’s called a DMCA subpoena in federal court to discover the identity of the infringer. See 17 U.S.C. § 512(h).

This is a bit more complicated than sending a DMCA takedown notice. First, you or your attorney need to request for a clerk in a federal district court to issue a subpoena (or court order) to a service provider for the alleged infringer’s personal information, which will allow you to then bring a lawsuit against that person. This request must include:

• A copy of the takedown notice;

• A proposed subpoena; and

• A sworn declaration stating that the purpose for which the subpoena is sought is solely to obtain the identity of the alleged infringer. See 17 U.S.C. § 512(h)(2).

According to the DMCA, if all this information is included, “the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider.” 17 U.S.C. § 512(h)(4). Once you have the name and the contact information (hopefully) of the infringer, and whatever other information you can get from the service provider, you’re able to file a lawsuit against the infringer in federal court.

If you would like help with any portion of this process, contact Jeff Kinkle.