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.
I frequently get questions from people claiming that someone copied a photograph that they own and republished it without their permission. They want to know what their options are for financial recourse. I start by asking them two questions.
When did you take the photograph?
Did you register your copyright?
Most of the time the photograph in question was taken years ago and the photographer didn’t register their copyright. The majority of artists know that they get exclusive copyright rights the second they create their work in some tangible form, but most of them don’t know that they have to register their work with the U.S. Copyright Office to maximize their protection and options for recourse when someone steals or illegally uses their work.
By creating an original literary, visual, or audiovisual work, you get the exclusive rights to copy, distribute, display, perform, and make derivative works of the original work. When and whether you register your copyright determines how much you might collect if someone violates your rights.
The Copyright Act says you must register your work within 3 months of publication or 1 month of learning of the infringement (whichever happens first!) to be eligible for statutory damages and attorneys’ fees. Statutory damages is money the court can require the infringer to pay you regardless of how much money you lost because of the infringement. If the court decides that the infringer knowingly and willfully stole your work, they can order the infringer to pay you up to $150,000 per violation plus the cost of your attorney!
If you don’t register your copyright within 3 months of publication or 1 month of learning of the infringement, you can only collect your actual damages. This is the amount of money you lost because of the infringement and/or what the infringer earned by copying your work. There are times when your actual damages is $0 because you didn’t lose any money and the infringer didn’t make any money due to the infringement. If you had registered your work within the time frame stated in the Copyright Act, you would have been eligible for statutory damages and attorneys’ fees regardless of our actual damages.
It’s frustrating when I have to tell clients and friends that their options for financial compensation are few or non-existent, because it’s a preventable problem. You can register a copyright electronically online for as little as $35. You can register multiple photographs with one registration application and fee. If you are a professional photographer, you can register each photo shoot with one copyright. Whenever you finish the final product from a shoot, which I suspect is within 3 months of the shoot, take a few minutes to register your work with the U.S. Copyright Office. You can even pass the cost of registration onto your clients by raising your fees $35.
Registering a copyright is fast and easy, and you can do it yourself if you don’t want to a pay a lawyer to do it for you. If doing it by yourself the first time scares you, hire a lawyer to walk you through the process. It doesn’t take much time or money to maximize your protection , so do it.
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.
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.
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:
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.
Sue for copyright infringement. This can be a long expensive process, but it’s your best chance for a financial gain.
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.