Let me start out by saying that if your entire business model is based on submissions of Copyright infringement notices (“Digital Millennium Copyright Act Notices” or more commonly referred to as “DMCA Notices”), you should first have a clue about: 1) what goes in one; and 2) what circumstances will likely be found by the court as “infringement.” If you can’t even get that right, you are doing a disservice to both your customer and are risking litigation against you. #PetPeeve Yes, I have services in mind but they shall go unnamed.
I understand that in today’s modern world it is incredibly easy for someone to take a picture that posted of someone on the internet and then turn around and upload it elsewhere. Indeed, depending on the circumstances, it may very well be an instance of Copyright infringement and a DMCA Notice may very well be warranted. There is an entire legal analysis that often goes into determining Copyright infringement and those who are untrained should consult legal counsel who regularly handles Copyright infringement issues to help walk through the elements.
Notwithstanding the above, if you think that submitting a DMCA Notice to a site where such image is being used in connection with a review, in an effort to get that review or image to be removed from that site, you are likely going to fall flat and may have just wasted time and money. Why? Because such use is more likely than not going to be considered “fair use” by a court.
The doctrine of fair use is codified at Section 107 of the Copyright Act, 17 U.S.C. § 107 (“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work … for purposes such as criticism [and] commentary … is not an infringement of copyright.”); see also Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir.2001) (“copyright does not immunize a work from comment and criticism.”). Similarly, courts around the country have upheld the fair use doctrine for the type of claim that most people write to review websites about, i.e., an image connected with a critical review. See Dhillon v. Does 1-10, Not Reported in F.Supp.2d, 2014 WL 722592 (N.D.Cal. 2014) (finding of fair use when Plaintiff’s professional headshot was used for article criticism and commentary); Galvin v. Illinois Republican Party, Slip Copy, 2015 WL 5304625 (N.D.Ill. 2015) (finding of fair use when Plaintiff’s photograph was used in a flyer for the purpose of criticism and commentary); Katz v. Chevaldina, Slip Copy, 2014 WL 2815496, 111 U.S.P.Q.2d 1281, (S.D.Fla. 2014) (finding unauthorized use of unflattering photo of businessman in a blog that is critical of his business practices to be fair use as a matter of law); Katz v. Google, Inc., —F.3d—, 2015 WL 5449883 (11th Cir. 2015) (finding of fair use when blogger used a photograph of a businessman, which he owned the copyright to, in a posting that was to deter others from conducting business with businessman); and Weinberg v. Dirty World, LLC, et al., 2:16-CV-09179 (C.D.Cal. Jul. 27, 2017) (finding fair use when photograph, captured from a video clip which Plaintiff had rights to, was uploaded to an online review website to “ridicule, mock, and critique” the figures in the image).
Moral of the story: if you are considering using a DMCA Notice (or hiring some Reputation Management company who uses this “method”) in effort to try and get postings or images removed from the internet…you should seriously reconsider your strategy. Chances are such companies (or law firms – I’ve seen ridiculous letters from attorneys too) are just taking your money and you may not get the results boasted about. Remember, there has to be a good faith believe that the use is infringing and when there is an abundance of case law that says “fair use”…one questions the “good faith” requirement.
Are you a business that operates a website where you regularly receive DMCA Notices? If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC! We truly enjoy helping our business clients meet and exceed their goals! Contact us today.
All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon. All legal questions should be directed to a licensed attorney in your jurisdiction.