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.