Jazzy’s Quick And Dirty Guide To Surviving A DMCA Takedown

This morning I got an email from another Armitage blogger who wishes to remain anonymous telling me about a Digital Millennium Copyright Act Takedown Notice that she received from her blogging platform. I am publishing this post at her suggestion, with her full knowledge, so that you can know what steps were taken both by her platform and by her, on the off chance that it comes up again for someone. It’s better to be armed with knowledge so that you know what’s required rather than being caught unawares and freaking out. Please note that I am not a lawyer and this is not intended as legal advice. Rather, I’m breaking down the steps taken by the copyright holder to protect his or her work, the steps taken by the host platform to comply with the law, and the steps taken by the blogger to resolve the issue. All examples used below are unrelated to this morning’s incident in order to protect the anonymity of the blogger.

Who The Copyright Holder Is:

The copyright holder is the owner of the material at issue. For example, if the takedown is about a fanmade wallpaper incorporating a photograph, the copyright holder is the photographer and not the fan who made the wallpaper, no matter how the wallpaper is shared or used. The photographer has the SOLE RIGHT to authorize the photo being used and also the SOLE RIGHT to file a DMCA Takedown Notice. For simplification, I am referring to the photographer as Jane Doe and, again, all examples are hypothetical except for names of platforms, such as Tumblr. I’m trying to clarify this situation, not confuse things further.

What The Copyright Holder Does:

Photographer Jane Doe is surfing around Tumblr and comes across a fanmade wallpaper using one of her photographs. She notes that the artist the wallpaper is attributed to, Joe, is unfamiliar to her and, while she admires the artistry of the work, she knows that she didn’t authorize this use of her copyrighted photograph. She clicks on the notes attached to the post and finds a link to Joe’s DeviantART gallery, where she finds the same wallpaper. She scrolls around and finds that he is licensing HER PHOTOGRAPH through a Creative Commons License and is also offering it for sale in multiple formats. She fills out DMCA complaints on Tumblr and DeviantART, swearing UNDER PENALTY OF PERJURY that she is the copyright holder.

What The Platforms Do:

On receiving the DMCA Takedown Notice from Jane, a human from the host platform disables access to the material in her complaint. The host service provider is NOT REQUIRED by law to notify Joe before it disables access to his wallpaper. Some platforms do as a matter of courtesy and one of them sends an email to Joe explaining that they’ve received a DMCA Takedown Notice. They attach a copy of the original complaint, explain that if Joe republishes the material his account will be permanently suspended, that if they receive valid complaints from other copyright holders his account will be permanently suspended , and urge him to delete any other material that infringes on any other copyright. They also send him a link to file a formal DMCA counter-notice if he believes his wallpaper falls under a Fair Use exemption to US copyright law.

What The Fan Artist Does:

Joe at this point has two choices. He can comply and the situation is over. If he wants to truly cover his behind and work with the platform he can reply back with an apology and a list of steps he’s taken to make sure it doesn’t happen again, for example notifying other people on other platforms such as Twitter who have linked to or shared his wallpaper unaware that he was NOT THE COPYRIGHT HOLDER of the image.

Joe also has the option of filing a DMCA counter-notice. If it is a valid counter-notice the platform then alerts Jane and the ball is in her court. She can ignore it and tolerate his infringement but if she was irritated enough to file against him in the first place she probably won’t. Her option now is to take Joe to court. There is NO legal requirement for the platform to restore his work to their platform while the case is being decided.

My fellow blogger of this morning elected to comply. Then she emailed me, knowing that I opened this discussion a few days ago on blog. We need to decide, each of us, how to handle this kind of thing if we are sharing media of any type. If you have dealt with and survived a takedown notice, or you have any concerns, you’re welcome to comment. One warning: IF YOU ATTACK ANYONE ELSE I WILL EDIT YOUR COMMENT INTO A VERSE FROM EDGAR ALLAN POE. It’s Halloween, after all. Comments are open.

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Snaffle This Post

There is a snaffler among us and this  person must be dealt with, swiftly and harshly. The following was shared on Twitter a few weeks ago without the prior permission of the creator and copyright holder of the work. I share it here for commentary and criticism and possibly parody. I have no idea if any of that actually applies, but it’s worth a shot.

I did not ask permission. I plan to ask forgiveness.

I did not ask permission. I plan to ask forgiveness.

You’re aware of who the snaffler was in that case, right? @RCArmitage? I’m not calling The Dude out by any means here. I’m using that instance to make a larger point with regard to the constant drama about copyright of the last few weeks: some snaffling we tolerate depending on who’s doing it and what the circumstances are. I personally find it unbelievable that anyone in this fandom has the totally backward notion that fan artists of any type are entitled to a stricter level of protection from snaffling than they are themselves extending to the creator/copyright holder.

Let’s say Armitage works with a photographer who’s new to us, Joe Schmoe from Cleveland. A fan site asks for and gets permission from Schmoe to post the photos from the shoot with the notation that they have permission. That permission extends only to that site, not to me. If I want to use one of those photos for some other purpose, including creating a piece of art (note: I have zero artistic talent, this is totally hypothetical), I have to ask his permission myself, even if he’s already granted that permission to the fan site for the purpose of posting it in a gallery. Say I take one of the photos from that gallery and sketch it without asking his permission first. As long as it stays in my sketch book, I’m probably safe. Let’s say that I want to put it up at DevaintART. As soon as I do that I might be infringing on Schmoe’s copyright. He as the copyright holder has the sole right to grant permission to use his work for derivative works. He might choose to tolerate my hypothetical infringement or he might not. If he doesn’t he has the right to file a DMCA takedown notice with the host site and they in compliance with US law (DeviantART is in California) have to remove my work. I can’t use what I perceive as his tolerance of any other work as a defense because the creator of that work might well have asked for and been granted permission. A court might find my piece to be Fair Use but in order for them to do that one of us in this hypothetical situation has to have filed suit against the other. I can believe wholeheartedly that my sketch falls under Fair Use but if I can’t convince a judge of that I’m out of luck. Additionally, if I’ve read DeviantART’s Submission Policy, I’ve agreed by posting the work to the site that I already have whatever legal clearances, including permission from a third party copyright holder, are necessary before I post the work (Submission Policy Section 7, subsection b).

There’s a lot of fan art floating around out there, so why would Schmoe hypothetically choose my piece and not another artist’s? The only reason he needs is his copyright but there are things that make it more likely to happen. Maybe I’m selling prints of my sketch from his photo. Maybe I’m licensing distribution of my sketch through a Creative Commons License that includes a provision that prohibits other people from making adaptations of my work and he just granted permission to a different artist to make a sketch for an official Armitage website from the same photo and he’s afraid that the CCL on my work will impact on that derivative work’s copyright. Maybe I’m making noises about registering for copyright protection for my sketch. If I do these things, I increase the likelihood of his filing a DMCA takedown and the possibility of an infringement suit.

I love transformative works, obviously, so I’m not saying don’t create them or trying to stop you from creating them. Heck, I run a blog that supports writers who emerged from the fic community. What I am saying here is keep fan art and fan works in perspective and be sensitive to the rights of the actual copyright holders. The fic community in this fandom is vibrant in part because two of Armitage’s most popular characters – John Thornton and Guy of Gisborne – are in the public domain and copyright isn’t a consideration if you’re working from public domain sources. Not all sources are public domain, though. If I were to write a fic about John Porter and post it on An Archive of Our Own and someone other than me decided to post it at FanFiction.Net as original-to-him-or-her the only recourse I have is flagging it for plagiarism at FFN and dealing with it that way. FFN deals with this on a more or less regular basis and their response time is about 48 hours. I have absolutely no right to claim copyright infringement because I am using Chris Ryan’s copyrighted character without his permission. There’s a reason E. L. James renamed her male character Christian and heavily revised her fic before she published 50 Shades of Grey, and no, I don’t want to hear how you feel about that book or the Twilight series.

Tumblr, DeviantART and other social media sites each have ways to report misattributed or non-attributed work and that’s what we as a fandom have to work with. These increasingly bitter fights in public spaces like Twitter, sometimes pulling in copyright holders themselves, make all of us look foolish. If you seriously want to try to make a LEGAL case out of someone sharing your work without permission when in creating it you used someone else’s copyrighted material without their permission, be my guest. Just be careful swinging that copyright stick. You might wind up smacking yourself in the face.