Photo Attorney

Sep 6, 2009

Flickr Changes Its DMCA TakeDown Policy for Copyright Infringement Claims

As explained in my article on "Using the DMCA Takedown Notice to Battle Copyright Infringement," the Digital Millennium Copyright Act (DMCA) states that while an Internet Service Provider (ISP) is not liable for transmitting information that may infringe a copyright, the ISP must remove materials from users' websites that appear to constitute copyright infringement after it receives proper notice. But some uses of copyrighted works may be a "fair use," not an infringement (read more about fair use in my article). While only a court of law can make that decision, some uses appear more likely to be allowed by law.

Such was the case with a photograph of President Obama. As The New York Times reported, the controvery started with an image created by Firas Alkhateeb, showing President Obama wearing the makeup of the Joker. The underlying photo came from TIME magazine's cover. After Alkhateeb uploaded his photo to Flickr, an unknown third party added the word of "socialism" at the bottom of the image.

After it received a DMCA takedown notice, Flickr took the image down. But the notice likely did not come from the copyright owner or the owner's agent, as required by DMCA. Thomas Hawk reported on his investigation into the purported author of the notice.

After all of this, Flickr has made a change to its DMCA policy, reportedly from a suggestion by a Flickr user. A Flickr staff member explained the change:

Upon receipt of a complete NOI [notice of infringement], the US Copyright Team will replace the image with a new static image that bears the following copy:

"This image has been removed due to a claim of copyright infringement."

Flickr will send a message to the member about the claim, remove the questionable image, but leave the metadata and comments posted.

This seems to be an excellent compromise to a serious problem. Congrats, Flickr, for adapting your policies to accomodate the current state of things.