DMCA Takedown FTW: The Follow-up

Don't Steal by Uncleweed, Ruth Carter, Carter Law Firm

Don’t Steal by Uncleweed

Last week I posted a blog about my experience sending a Digital Millennium Copyright Act (DMCA) takedown notice to Google. A few questions have come up since I put up the post, and I wanted to address them.

When I first noticed that another blogger had taken a photo from my blog and posted it on her site, one of my friends asked me why I sent a DMCA takedown notice instead of just sending her an email. That’s a valid question, and an option I considered.  I chose to send a DMCA takedown notice because I’d never sent one before I wanted to experience the process. I had no malicious intent. The blog where the copyright infringement was occurring was taken down in about 24 hours, and the blogger who stole my work changed the image and had the post back up in less than a day after that.

It seems like a lot of people use images they find online without thinking about the potential legal implications. This situation could have been a lot worse. My blog is not currently registered with the U.S. Copyright Office, but that’s on my to-do list. If I registered my blog and sued for infringement in this situation, I would only be eligible for my actual damages, which is probably nothing.

If you steal an image from a blog that was registered with the U.S. Copyright Office within 3 months of publication or 1 month of learning of the infringement (whichever happens first), you could be sued for copyright infringement and ordered to pay the copyright owner’s statutory damages and attorneys’ fees. In the worst case scenario, you could be ordered to pay up to $150,000 in damages plus attorneys’ fees.

So what’s the take home lesson? Be thoughtful about the images you use on your blog. Only use images that are available under Creative Commons. If there’s an image that you want to use that doesn’t come with a Creative Commons license, get permission from the copyright owner to use the image.

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Creative Commons Images For Your Blog

Question Mark by Ryan

I talk about blogging a lot, both about general blogging information and the legal side of blogging. One of the things I always talk about is the images. Every blog post needs at least one picture. It makes the post more interesting and it can help you portray your subject matter or the emotional impact of your message.

I am not a photographer, so I have to rely on other sources for my photos. If you don’t have a photo that you yourself have taken to use with your post, you can find quality images on Creative Commons. Creative Commons is a license that photographers put on their images that allow you to use them. The particular license tells you how you’re allowed to use it and what credit you have to give to the image owner.

Attribution only – You only have to give credit to the image owner. You can modify the image and use it for   commercial purposes

Attribution-ShareAlike – You may modify the original work and use it for commercial purposes, but you must allow others to use your work in the same way. You must give an attribution to the original image owner.

Attribution-NoDerivs – You may use the image for commercial purposes but you can’t alter the image in any way. You must give credit to the image owner.

Attribution-NonCommercial – You may modify the original image but you may not use it for commercial purposes. You must give an attribution to the image owner.

Attribution-NonCommercial-ShareAlike – You can modify the image but you must allow anyone to use what you create. You can’t use it for commercial purposes and you must give credit to the image owner.

Attribution-NonCommercial-NoDerivs – You may only use the image, as is, for non-commercial purposes. You may not modify the image, and you must give an attribution to the image owner.

When I look for photos for my blogs, I always pick photos that come with an Attribution only or Attribution-ShareAlike license, and I encourage everyone to do the same. When I add a photo to my blog, I put the name of the image and the attribution to the image owner in the caption, and make the caption visible on the post. In the image description, I include a link back to the original image, which is usually on Flickr.

I use these license because they are the most user-friendly. If you need to crop a photo, these licenses will allow you to do that. I also recommend always using photos that you’re allowed to use for commercial purposes.  Even if you don’t make money on your blog from ads or by having you blog connected to a business now, you might in the future. If you start making money via your blog and you have images on your blog that you’re not allowed to use for commercial purposes, you have to go back and remove those images from your site. It’s easier in the long run if you have permission to commercialize all of your images from the start.

If there’s an image you really you want to use on your blog, but it doesn’t come with a Creative Commons license, you can always ask the image owner if you can use it. I have standing agreements with Devon Christopher Adams and Sheila Dee because I ask to use their photos so often.

Copyright Infringement on Pinterest

My bulletin board (for inspiration) by Monica Arellano-Ongpin

There’s a strong possibility you’re committing copyright infringement on your Pinterest board.

For the sake of full disclosure, I’m not on Pinterest. I don’t need another internet addiction. From what I hear, everyone who’s on it, loves it. Essentially, Pinterest lets you create “boards” where you share pictures of things you like. As you visit various websites, you “pin” things that you like, and add them to our Pinterest boards. Then people who visit Pinterest can see your boards and everything you like.

So Where Does Copyright Come Into Play?
Copyright protection is extended to any original work of authorship that is fixed in a tangible medium. You don’t have to register it with the U.S. Copyright Office to get this protection. When you have a copyright in a picture or other work, you have the exclusive right to copy, distribute, display, and perform the work and to make derivative works based on your work.

If you take a picture, you have the exclusive right to decide where it will be displayed, including on which websites. When someone pins your picture and adds it to their Pinterest board, they likely made a copy of it without your permission. That’s a violation of the Copyright Act.

What About Fair Use?
The Fair Use provision of the Copyright Act allows you to copy a work for the purpose of criticism, comment, news reporting, teaching, or research. Pinning something on your board probably doesn’t qualify as any of these things.

Is Pinning Someone’s Work Ever Ok?
Absolutely! You can pin someone’s work without worrying about being sued if they’ve given you permission to do it. Look for works that come with a Creative Commons license. You may be required to give an attribution to the author when you pin their work. If a work doesn’t have a license, you could always ask the author for their permission to pin their work.

Should I Be Worried about Pinterests Terms & Conditions?
Probably. Have you read them? A woman who is a lawyer and a photographer recently deleted her Pinterest boards after reading them. According to her, Pinterest users agree to some strongly worded terms.  If you are a Pinterest user, you’ve agreed

  • You own or have permission to use everything you pin on Pinterest;
  • That nothing you pin violates or infringes on any third party’s copyright, trademark, or other intellectual property or rights to publicity or privacy;
  • You will defend, indemnify, and hold Cold Brew Labs (Pinterest’s creators) harmless against all claims, damages, and expenses (including legal expenses) related to your use of the site or violations of the site’s terms and conditions; and
  • You accept all the risks related to using the Pinterest site “to the maximum extent permitted by law.”

So, if you and Pinterest get sued for copyright infringement for something you pinned on your board and you lose, you’re required to pay your and Pinterest’s legal fees and the fine assigned by the court. The fine for willful copyright infringement can be up to $150,000. (Hat tip to Cold Brew Labs’ legal counsel on drafting such great terms and conditions!)

What Do I Do If My Copyright’s Being Infringed on Pinterest?
You have three main options when your copyright is being infringed on Pinterest:

  1. Nothing.  If you don’t have a problem with it, do nothing. I think a lot of people select this option because Pinterest exposes their work to a larger audience.
  2. Sue for copyright infringement. This can be a long expensive process, but it’s your best chance for a financial gain.
  3. Send a DMCA takedown notice. If all you want is for your work to be removed from someone’s board, send a Digital Millennium Copyright Act takedown notice to Cold Brew Labs’ statutory agent. The Copyright Act tells you what information you have to include in the notice, or you can find a local attorney to do it for you.  Once Cold Brew Labs gets the notice, they’re required to remove the work that allegedly infringes your copyright.

From what I know of Pinterest, I suspect copyright infringement is occurring on most Pinterest boards. You have to decide for yourself how much risk you’re willing to take. If you need help assessing the legal risk related to your Pinterest boards, contact a copyright attorney in your area.

UPDATE (3/26/2012): Pinterest announced its new terms of service will become effective on April 6th. They allegedly make it easier to report copyright infringement.