DMCA takedown notices for photographers

The six required parts

1. 1

   Signature

   Physical or electronic, of the owner or a person authorized to act for them. A typed name preceded by /s/ is common for electronic notices.

2. 2

   Identification of the work

   Which photograph. Describe it, link to where you published it, or attach it. For several photos, a representative list is permitted.

3. 3

   Identification of the copy

   Information reasonably sufficient to locate it: the page address and, ideally, the image file address. ‘Somewhere on this site’ is not enough.

4. 4

   Contact information

   Address, telephone number and email for the complaining party.

5. 5

   Good-faith statement

   That you believe in good faith the use is not authorized by the owner, its agent, or the law.

6. 6

   Accuracy and authority

   That the information is accurate and, under penalty of perjury, that you are authorized to act for the owner.

Our notice drafter builds a notice with each part from your answers, free.

Where each notice goes

Fair use, and the cost of getting it wrong

The good-faith statement covers authorization by law, which includes fair use. In Lenz v. Universal Music Corp. (9th Cir. 2015), the court held that a rights holder must consider fair use before sending a notice. The duty is to consider it honestly, not to be certain.

A notice that knowingly misrepresents that material is infringing can make the sender liable for the other side’s damages, including costs and attorney’s fees (§ 512(f)). Commentary, criticism, news reporting and parody are where fair use most often applies. A business using your photograph to sell its own product or service usually sits elsewhere.

Counter-notices

The person whose material was removed can send a counter-notice stating, under penalty of perjury, that it was removed by mistake or misidentification, and consenting to the jurisdiction of a federal court (§ 512(g)(3)). The provider then tells you, and restores the material no less than 10 and no more than 14 business days later unless you notify it that you have filed a court action (§ 512(g)(2)(C)).

A counter-notice moves the matter from takedown to dispute. Whether to sue is a decision for you and a lawyer; registration is needed before a US work can be sued on (§ 411).

Mistakes that get notices ignored

• Sending to the registrar or a general support address instead of the host’s designated agent.
• Naming a whole site instead of the specific pages and images.
• Leaving out the perjury statement or the signature.
• Reporting a photo you did not take, or one supplied to you under license.
• Mixing copyright with trademark, privacy or defamation complaints in one notice.
• Writing an angry letter. Facts get acted on; adjectives get forwarded to the other side’s lawyer.

Filing through an agent

The statute allows a notice to be signed by the owner or by a person authorized to act on the owner’s behalf (§ 512(c)(3)(A)(i)). An agent, whether a colleague, a studio manager or a takedown service, signs in its own name and states whom it acts for. The perjury statement then covers the agent’s authority as well as the accuracy of the notice.

Before anyone files for you, the authority should be written down: which works, which kinds of notice, and for how long. It protects you from notices you did not want sent, and protects the agent when a recipient asks to see it. Agents still need your help with the facts only you know, such as when the photo was taken and what licenses exist.

Keep a filing log either way: each notice, its recipient, the date, the reference the provider gave, and the outcome. Providers' repeat-infringer policies (§ 512(i)) depend on a history, and so does any later conversation with a lawyer.