Photo Attorney

Aug 27, 2008

Judge Requires That You Consider Fair Use Before Sending A DMCA Takedown Notice

As reported by John Harrington last week, a judge has ordered in the Lenz v. Universal Music case that copyright owners must consider whether an unauthorized use of a copyrighted work qualifies as fair use before sending a DMCA takedown notice (check my article how to do that). Although Universal Music argued in the Lenz case that fair use is difficult to determine, the court found that to not be an excuse.

Clearly, the DMCA statute requires that a takedown notice include:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be
disabled, and information reasonably sufficient to permit the service provider to locate the material.

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

17 U.S.C. Section 512(c)(3)(A) (emphasis added). The Lenz court focused on the 5th requirement for its finding at issue here.

So what is a photographer to do when fair use is a tough call even for lawyers? Review the law as to what comprises fair use. My article on fair use should help. But as long as you have a good faith belief that the infringement is not fair use, you should be protected in your demand that infringing materials be removed from a website.