copyright

How to Prepare and Use a DMCA Takedown Notice

March 25, 2019 By Susan Spann 5 Comments

Flickr Creative Commons: Noirathsi’s Eye

The Digital Millennium Copyright Act (“DMCA”) is a U.S. law designed to protect content creators (and Internet Service Providers), and to “maintain a balance between the rights of authors and the larger public interest.”

I could write a book (and people have) describing the DMCA in detail, but the part of the law most relevant to authors – and the topic of today’s post – is the DMCA Takedown Notice.

(Advance apologies for the length of this post, but it takes a little space to describe the process in a useful way.)

Under the DMCA, website hosts and ISPs must promptly investigate and resolve copyright infringement claims, provided the claims are presented in a DMCA-compliant notice (normally called a “DMCA Takedown Notice”). The legal requirements for this notice are established in 17 U.S. Code Section 512 (c)(3). In practical English:

To put an ISP on notice of copyright-infringing material on a hosted website, the person claiming infringement (or his/her representative) must send the ISP a written notice (many ISPs accept these notices in electronic format, and many websites post a DMCA submission form) containing the following information:

Identification of the infringing material that the owner is asking the ISP to remove (or disable access to), along with enough information for the ISP to locate the material. (Normally, a URL or link to the infringing content on the hosted website.)
Identification of the copyrighted work the owner claims has been infringed. (If multiple works by one author are involved, the owner can send a single notice that lists all of the works.)
Sufficient information for the ISP or website to contact the author of the DMCA complaint. (Generally, a physical address, telephone number, and valid email address.)
A statement that the complaining party (you, if you’re preparing the notice) has a good faith belief that use of the copyrighted material is not authorized by the copyright owner, any agent of the owner (such as a publisher), or the law.
A statement, made under penalty of perjury, that the information in the notice is accurate and that the complaining party (you, if you’re sending it) is the copyright owner or legally authorized to act on the owner’s behalf.
The physical or electronic signature of the copyright owner (or an authorized representative, like an attorney, agent, or publisher).

Before you send a DMCA notice to a website or ISP you should:

Make sure the website doesn’t have permission to post the material. Check your contracts, licenses, and grants of rights (and check with your publisher, if you have one) to make sure the use is actually a copyright infringement. It’s embarrassing to send a DMCA notice and get a response that says, “We have a license.”
Make sure the use is not “Fair Use.” Generally, offering free access to a copyrighted work, in its entirety, without permission, is copyright infringement – but if the use is only an excerpt, or if you’re not certain about fair use, contact a lawyer before proceeding with a DMCA notice.
Confirm the proper recipient of the notice. If the website doesn’t include a copyright agent or administrator’s contact information, you can generally send the notice to the website host (the ISP that hosts the website on its servers).

Be aware: a DMCA Notice is only legally operative within the United States, in countries that are signatories to the copyright treaty that prompted the DMCA’s enactment in the United States, and in countries that have enacted laws similar to the DMCA (with similar notice requirements).

And now for the bad news: [Read more…]

Holiday Copyright Tips

December 10, 2018 By Susan Spann 11 Comments

Happy Holidays!

‘Tis the season . . . to stay off the copyright “naughty list” . . . so here are some tips for avoiding copyright infringement—not only through the holidays, but all throughout the year:

SONGS (AND LYRICS) ARE PROTECTED BY COPYRIGHT

During the holidays, it’s tempting to blog or post the lyrics to favorite carols or celebratory songs—not only on your website, but on Facebook and other social media sites as well. Unfortunately, reproducing lyrics, or poems, in their entirety often violates U.S. copyright law, because lyrics and poems are protected by copyright until they enter the public domain at the expiration of the copyright term.

Posting an excerpt is often permitted under the “fair use” exception to copyright law. However, despite what you often hear online, there is no absolute “fair amount to use.” Popular myths like “two [or five, or six] lines is always okay” are just that: myths. In reality, there is no “bright line” test for copyright infringement. The actual legal test involves the evaluation of four different factors based on the specific “facts and circumstances” of the use.

If you want to share a favorite song or poem, you’re better off quoting the title, or a line or two and then sharing a link to an authorized website that reproduces the work with permission from the copyright holder, or to a video showing an authorized performance of the work.

RECIPES ARE NOT PROTECTED BY COPYRIGHT…EXCEPT WHEN THEY ARE.

Copyright law protects creative expression, but does not protect “functionality” or “facts.” Ingredient lists and basic, functional steps to combine the ingredients in a way that creates a specific type of food is generally considered a functional process, for which copyright is thin (and sometimes, nonexistent). Generally speaking, that means it’s OK to share a recipe.

In fact, U.S. courts have ruled that recipe ingredient lists are merely “statements of facts,” which are not copyrightable, and that factual parts of the recipe’s directions (meaning the instructions regarding combination of the ingredients and the manner in which they’re cooked) are not copyrightable either.

However, creative portions of recipes – including the way the instructions are given and any anecdotes, “tips and hints,” and humorous asides are copyrightable. In other words: you generally can’t reproduce a creatively-worded recipe verbatim, especially if you try to claim it as your own. That said, you probably can share a recipe, translated into your own words, as long as you stick to the functional elements and write your own hints, tips, and “bonus material.”

But Please Remember: in recipes, as in life, ethics matter. While it may be “legal” to strip down and reproduce someone else’s recipe without attribution, it’s not very ethical. If you love a recipe someone else created, it’s better to share your experiences making it (with photos!), and also attribute—perhaps even with a link to the source. You could also share the ingredient list and instructions, and link to the source for tips and creative content. If you have no way to offer a link, it’s also nice to mention the name of the person who created the recipe (if you can). [Read more…]

The Truth Behind Popular Copyright Myths

June 26, 2017 By Susan Spann

Copyright law can seem confusing, but authors need to know the basics—especially when (and whether) to register a copyright, and what to do when using a pseudonym. As a publishing lawyer, I work with copyright issues (and authors) all the time, and today, I thought I’d take a closer look at some popular myths about copyright law and how it applies to novels and other creative works.*

Myth #1: You have to register copyright in order to own the copyright in your work.

False. Registration with the U.S. Copyright Office is not a legal requirement for copyright ownership. Copyright attaches to “qualifying works**” automatically at the time of their creation. However, copyright registration is generally required in order to file a lawsuit against infringers, and to claim certain benefits under the U.S Copyright Act, so authors should register copyright within three months of a work’s initial publication.

(**Short stories, novellas, novels, anthologies, poetry, and similar fiction and non-fiction works all generally qualify for copyright protection.)

Myth #2: Authors benefit from copyright registration.

True! Copyright registration gives copyright holders significant benefits under U.S. law. Among them:

The right to sue infringers to stop infringement (and recover damages).
The right to collect “statutory damages” (money, in an amount established under the copyright act) for infringement, even if the infringer did not make substantial profits from wrongful use of the copyrighted work.
The right to recover attorney fees against an infringer in a successful lawsuit.

Many of these benefits are available only if a work is registered in a timely manner, meaning within three months of initial publication. However, some benefits (such as the right to sue to stop infringement) are available regardless of the timing of registration.

Myth #3: A book is not “published” for copyright purposes if you give it away for free.

False. Under the Copyright Act, “publication” means “the distribution of copies . . . of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending,” or “offering to distribute copies of the work to a group “for purposes of further distribution, public performance, or public display.” (17 U.S.C. Section 101)

The Copyright Act does not require that the author make any money (or profits) on sales before a work is considered “published.”

Also, the Copyright Act does not distinguish between self-published works and those published by a third-party publishing house. Published is published, regardless of the method the author chooses.

Myth #4: If you don’t register the copyright before publication, you can never register at all. [Read more…]

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