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The Digital Millennium Copyright Act

We have discussed protecting someone’s image using the right of publicity, right to privacy, and the privacy laws that protect biometrics. Yet, images are first and foremost images.  So, certain rights exist for the protection of images. Firstly, it includes copyright laws. An ongoing trend is how individuals, famous and otherwise, use the Digital Millennium Copyright Act (DMCA) to demand takedowns and manage photographs. While this is still moderately controversial, it begs several questions. For example, what is required to use these claims to protect images? Why might someone use the DMCA takedown demand instead of one of the other methods of protecting images? How is this controversial if it allows individuals to protect privacy?

How would the DMCA work?

The DMCA allows individuals to issue “takedowns” to internet hosting services and to websites to remove copyrighted materials. The first hurdle is to yield actual copyright over the photograph. To be eligible, the work must be a type of copyrightable work (e.g., photograph, sound, written word), written by a human author and either created or arranged with a minimum amount of originality and creativity. In most cases, this might include, a “selfie” or a similar picture that has been taken by you. It’s worth noting that this is something that only applies within the United States, and the other elements to register a copyright, like creativity, are relatively easy to meet.

Afterwards, an individual may send a notice to an internet hosting service, notifying the organization that there is infringing content and demand its removal. This can be as simple as sending off an email or filling out a form. It should be noted that this isn’t always a perfect solution, as images can be saved offline, reposted, and shared forever, but it can curtail some of the more offensive appropriations as long as it is not subject to the fair use defense.

Why is it a controversial practice?

The problem with using DMCA takedown demands constantly to remove protectable information is the unfortunate stigma that the DMCA takedown procedure has and its potential for misuse. However, we must recognize that the takedown notice procedure is cheaper than litigating a lawsuit, and consequently some entities have used it too often.

One of the more questionable instances would be regarding the Ashley Madison data, wherein Ashley Madison had sent out takedown notices regarding the data of its users.  While the basis for originality is low, facts cannot be copyrighted and the use of the takedown procedure there seems to go against logic. Yet even there, it’s important to stress that so long as the takedown is being used for legitimate purposes (e.g., protecting original photos), then the takedown is within the spirit of the law.

If you would like further input on how to protect your image, through any legal means, as well as submitting takedown demands to protect your copyrights, please contact us to set up an initial consultation. At our law firm, we assist clients with legal issues related to business, intellectual property, cybersecurity and e-commerce transactions.