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Fair Use Vs. DMCA

Back in May I wrote a post on copyright and the art of licensing, which has since become one of my most sought-after articles. The subject is convoluted, not often well-explained, and a constant source of irritation for creative people. I never got around to pontificating about what you should do if your rights are ever violated in that article, so I’ll do that here.

In two recent examples, several works by a pro photographer found their way onto an inspiration blog and a web design was stolen by the ex-employee of a designer’s client. Both situations raised a case for possible copyright violation, but they each require very different approaches and consideration. One walks the line of Fair Use, while the other will likely result in a DMCA notice and possible lawsuit.

In  the first example, a photographer discovered a series of her photographs on an inspiration blog and thought immediately to email the blog owner to demand the images be removed. The blog is of medium popularity and, on the surface, operates like any standard design blog that uses a modest amount of sponsor advertising to keep it running. Blog posts showcasing artists included full attribution and were worded as recommendations/commentary. In general, this kind of use is considered Fair Use, which is a legal clause that allows copyrighted works to be used under certain benevolent conditions. What constitutes Fair Use and a benevolent condition? To put it simply, if the work is being used in a way that does not damage the artist’s reputations or human and civil rights, and does not depreciate the value of the work, it is probably Fair Use. Common examples:

  • Photos or images used for educational purposes – a photo from National Geographic is used on a presentation slide during a TED talk.
  • Unintentional – a popular song is heard in the background of a YouTube video.
  • Commentary or Review – artist showcases, reviews, inspiration posts and internet sharing on social networks. Attribution is usually inferred.
  • News reporting – any part of a copyrighted work shown or heard on TV during a news broadcast, or mentioned/quoted in an article.
  • Quotation – Excerpts of a book or article cited or quoted in another work, or for the purpose of sharing the work. Attribution is also inferred here.

As a professional writer, I have featured several creatives in similar mashups and inspiration posts under the Fair Use rule, but certain universal standards for use and conduct should be upheld. It can be argued that Fair Use may still apply even without attribution, but on professional blogs, it is a must. We also link to the artist website if at all possible.

With that said, what happens if the site is a commercial site? Doesn’t that automatically violate your rights?

Not necessarily. Blogs like the one in this example appear to be commercial outlets due to the ad support, but the fact is that ads do not always equal commercial. Commercial infringement is typically described as someone using your work:

  • In a gallery or stock website for sale without license or permission
  • In a compilation, book, design or theme for sale
  • In advertising or other mediums to secure purchase or sale of goods

The photographer in this example ended up asking the blog to remove her work, and even with a Fair Use defense, the blog must comply to her wishes – after all, it is her work and she has the fundamental right to ask for its removal from any website that conflicts with her style or views. The blog owners gave her a rude response, telling her she should be happy for the exposure and that her photos are easily found on Google, somehow implying it is her fault her photos are misused.

Photographers, amateurs in particular, often over-estimate the value of their work. In most cases, you should not be over-zealous about controlling works that are not already licensed – that is to say, worry about controlling works that you are professionally selling, have licensed to a 3rd party, are showing in a gallery, or have previously published on a professional level. However, this blog’s response and conduct, and any similar situation, should not be tolerated by anyone, but it holds a thread of truth and the moral to the story

If you find your work in a Fair Use situation, such as a blog post, consider the blog and the benefits before taking action. Then, consider what you can do to get better control over publication of your work, because if you do nothing, it will ultimately be your problem if your work ends up somewhere that infringes your rights.

Benefits of Fair Use

  • In most cases, being featured should be considered a compliment
  • Your work and website gains exposure
  • Your work and name are more likely to be shared across social networks
  • Job and paid publication offers (for example, Getty images often contacts photographers they find through keyword searches and social network referrals)
  • Helps you build relationships with network an blog owners that will help you publicize your work and events

How to Evaluate a Publisher

  • How popular is the website?
  • How tasteful is the website content?
  • Does the use of your work include critique, recommendation, review or reporting?
  • Is the use of your work missing attribution or passing the work off as someone elses?
  • Has the work been modified?
  • Is the work being sold?

In the second example, a designer’s client decided to break off from his business partner and rename his company. This turned into a lawsuit over the name and brand which ultimately involved the designer, regarding who owned the website. Since the designer had licensed the web design and branding package directly to her client and not to the company as an entity, and was also  paid directly by the client, she awarded continued use to the client and his new company, reworking the logo into the new business name. The client’s business partner, however, refused to give up the domain name and contents, and began to use the website to sell his own goods.

This is a classic example of copyright infringement where a work is used for commercial purpose without license. Not only was the individual infringing on the designer’s rights, but also on the rights of her client,  ”copying” his website’s design and company’s brand.  So what to do now?

In a case where Fair Use is clearly not involved, such as the second example, the first step for taking action is to notify the infringer of your rights and your request to have the situation rectified.

A DMCA Takedown Notice, or Digital Millenium Copyright Act Notice, is a formal request submitted to an ISP or web host declaring your right to a work being abused by one of their customers. As part of the DMCA, these businesses are required to act on every DMCA notice under their government operating guidelines. Contrary to popular belief, DMCAs are not just an American concept – most countries worldwide are participants. When the terms of your contract or license are violated, or someone is found to be abusing your work, the process is pretty easy for how to handle the problem:

  1. Send the infringer an email notifying them that you are the copyright owner of work found on their website and include direct links or descriptions of the work in question. Ask that the work be taken down within 72 hours and explain that if it is not, you will submit a DMCA takedown notice to the website’s host or ISP.
  2. Wait the full 72 hours.
  3. If no action was taken and no resolution was reached, issue the DMCA notice.

For this to be successful, there are a few things you need to have covered in advance:

  • You must have proof that you own the copyright
  • You must have proof that the work was created or protected by you prior to publication or use by the infringer
  • If you have a contract with the infringer, you must have proof that you attempted to collect payment and were not paid. Typically at least 30 days must have passed. If the infringement does not involve lack of payment, your contract should clearly state the license and terms of use.

My recommendation is to build a solid practice for licensing and protecting your work, and evaluate the true value of your work vs the benefit or damage done by its use in any single case.There are a few useful tools for protecting your work, managing publication and enforcing rights to help you on your way:

Digimarc is a plugin that embeds a digital watermark into your photos that is easily tracked across the web and read to provide proof of ownership and protection date. You may also opt to add your own visual watermark to your images, but I suggest it be elegant and discreet.

MyOws goes even further by offering a free service for protecting your works and managing licenses and cases. As a 3rd party, they can add additional clout to your case as each work is timestamped and stored using a legally viable method.

DMCA is a third choice, offering a professional protection service for only $10 per month that includes tracking of your work, watermarking, and license and case management. Like MyOws, you can submit a DMCA directly from the tool using their pre-made templates.