Google Questions Photographer’s DMCA Take Down Notice

Ryan McGinnis is a professional photographer who often is infringed. He uses the DMCA Take Down provisions as part of his fight against copyright infringement.

Earlier this year, Ryan sent several DMCA takedown notices for a specific photo of his being used on Blogger blogs.  His notice complied with all provisions, as he used Google’s own web-submission form and included a link to the work on his own website. Surprisingly, Ryan received a form response:

Hello,

Thanks for reaching out to us.

We have received your DMCA complaint regarding http://www.xxxxxxxxxxxxxx.com.html dated 2/7/12. It is unclear to us whether or not you are the authorized copyright agent for the content in question. Only the copyright owner or an authorized representative can file a DMCA Infringement Notice on his/her behalf. Please note that you will be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that a product or activity is infringing your copyrights.

Under U.S. law, copyright in a photograph is generally owned by the photographer, unless the photographer took the photo as part of his responsibilities as an employee (in which case the image belongs to the employer), or the photographer entered into a written agreement to transfer the rights to the photograph to someone else. Therefore, a person who is the subject of a photograph is almost never the owner of the copyright in the image (unless the person has obtained the rights to the image in a written agreement).

If you still believe you are the copyright owner in this case, then please reply to this e-mail with  documentation that confirms you are the rights holder for this content. Otherwise we cannot process your complaint, and you should have the copyright owner file a DMCA notice with us.

Sincerely,
The Blogger Team

Ryan responded that he was unaware of any provision of the DMCA that required him to prove to Google that the image was his. Instead, he swore under penalty of perjury that he was the copyright holder (or his/her authorized representative). He included the copyright registration number for his image in his reply. Google soon replied, stating that Google would remove the content (and did so shortly thereafter).

17 USC 512 (c) requires only that Ryan:

(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

(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 perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 It doesn’t require him to confirm his submission. So if Ryan had not replied to Google and Google had not taken the infringing material down, Google also may have been liable for the copyright infringement. Hopefully, Google has revised its procedures so that photographers have only one hoop to jump through when sending DMCA Takedown Notices.

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