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DMCA Takedown Notice

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Biletsky Law - DMCAIn 1998 the United States enacted the Digital Millenium Copyright Act (DMCA). The DMCA updated various parts of the then current copyright laws. One such provision that was updated was the Online Copyright Infringement Liability Limitation Act (OCILLA). OCILLA provides a conditional safe harbor for Online Service Providers and similar “middlemen of the internet” (think content hosting sites such as Youtube, Vimeo, etc.).

While there are many different parts of the OCILLA which provide certain protections from liability, this article will focus in particular on the Takedown Provisions. The Takedown Provisions require that in order for an Online Service Provider to be able to take advantage of the safe harbor provisions, they must comply with certain notices and in particular, any Takedown Notices. These Takedown Notices act as an easy way for content owners to be able to protect their intellectual property by notifying the service provider that their intellectual property has been infringed upon.

Once the content owner has made the service provider aware of the infringment, it is now up to the service provider to take action to stop the infringment. When a service provider complies with the Takedown Notice and removes the content, the service provider is deemed to have fulfilled their obligations under the law and they can then take advantage of the safe harbor provisions which protect them from being liable for the infringement.

If the service provider is made aware of the infringement and does not take action to prevent it, if such infingement is occuring, then the service provider may not be in compliance with the law and therefore may not be able to take advantage of the safe harbor provisions.

So how do you file one of these Takedown Notices? It is advised that if you do find out that your intellectual property is being infringed that you contact an intellectual property or entertainment lawyer immediately. However, to explain what the process is:

First, it is important to determine whether the content provider provides a way for content owners to send a Takedown Notice. Usually, this will be found in the very bottom of a website and will be under the “Terms of Use” (or similar worded page) or there may be a “DMCA” link. Within the terms or in the DMCA page, there will be a list of statements that must be sent to the service provider in order for hte Takedown Notice to be in compliance with the law:

Worded in one way or another, the following is required in order for the Takedown Notice to be effective:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Once a Takedown Notice which includes all of the above is sent to the servie provider, it is up to them whether or not to comply. Many of the larger service providers will have certain procedures in place to determine whether there actually has been infringement and whether they should remove the content.

While what goes into the Takedown Notice is pretty much the same for every service provider, each service provider has their own protocol for dealing with the notices. You may or may not receive any kind of confirmation or response. You may eventually notice that the infringing content has been removed, or not.

If you have sent a service provider a DMCA Takedown Notice but the infringing content has not been removed, it is important that you contact an attorney to take the next steps necessary to protect your intellectual property.

Has your content been posted without your permission? Contact Biletsky Law to ensure that your intellectual property rights are protected.

WHAT TO DO IF SOMEONE USES YOUR PICTURE WITHOUT PERMISSION

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A couple of years ago one of my clients, David Kimmerle, had just started going out with a young lady. Eventually it got to the point where David was to meet her parents. Before David came to her house for dinner that night, her mother decided to look him up online. What happened next shocked both her and David. After entering David’s name into a search engine, the first images that came up were from a pornographic website. The website had edited David’s picture to include explicit content onto his body. Needless to say, the dinner did not go as smoothly as planned…

When someone uses an image of you, an image you took, or an image that you created without your permission it can cause serious reputation and economic damages. So what do you do if someone is using your picture without your permission?

Stolen picture

Having your image used somewhere without your permission can be detrimental to your image and reputation.

  1. Is it yours?

You first need to make sure that it is in fact your picture. The fact that it caught your eye in the first place is a good start but you need to do some investigating to be sure that it is actually your picture. Pursuing any legal action against someone without first being able to verify that it is in fact your picture can have serious consequences.

  1. Save it!

The very nature of online postings allow things to be moved, deleted, and changed very quickly. If you are certain that the picture is yours, be sure to take a screenshot of where the picture is being used and to gather as much information about the person, website, or company that is using your image. It is also important to make sure that you still have the originals. It is even better if the originals have some indication of the date they were created or published.

  1. Take action, maybe…

Now that you’ve confirmed that someone is using your picture without your permission, you have documented its’ use, and you have found out who is behind the unauthorized use; it is time to choose your next step. Many people’s first response is to sue for copyright infringement. While that may certainly be an option, there are several other courses of action that you should be aware of before going with any particular route. Also keep in mind that some people choose not to take any action at all and rather see the use of the picture as a way of gaining exposure. One suggestion if you do decide to not take action is to at least make sure that you are mentioned or provided with credit for the picture.

 

So here are some of your options:

Reach Out

  • Is this something that can be solved amicably? Sometimes simply contacting the person who used your picture can be enough to have them take it down. This is especially true if they inadvertently used your picture. If you do decide to reach out to whoever is using your picture, be sure to save a copy of the email or letter as it may be able to be used later on if they refuse to cooperate.

DMCA Takedown Notice

  • If you don’t feel like being so amicable or if reaching out to the user was unsuccessful, one of your next steps could be to send out a DMCA takedown notice. DMCA stands for Digital Millenium Copyright Act and a takedown notice allows you to request that the internet service provider (ISP) who is hosting the image take down the infringing picture. Sending a DMCA takedown is something that you can do on your own but depending on the circumstances, it may be best to have a legal professional do it for you.

Cease and Desist Letter

  • A cease and desist letter is seen as a formal demand for a person to stop a particular activity. This is generally sent to the individual who is using your picture without your permission. Although anyone can send a cease and desist letter, how effective it is can depend on a number of things. Having an attorney prepare or at least review a cease and desist letter can help increase the chances that the letter will result in your picture being taken down. In some cases, cease and desist letters from non-attorneys may even be disregarded or ignored by the infringing party.
Stolen image

Copyright infringement can be considered theft and is illegal.

Small Claims Court

  • Small claims courts are courts which only hear matters of small disputes. The maximum amount of recovery that can be requested will vary from county to county and from state to state. An advantage with suing through small claims is that you may not have to hire an attorney and can usually bring the case on yourself. The rules that govern small claims courts are usually very user friendly and are not like the rules that govern other courts of law.

Litigation

Litigation can by far be the most time consuming and costly option to go with as far as having your picture taken down. But it is by no means a rare occurrence. Copyright infringement suits, particularly those involving the right to use someone’s image, are very common. A successful lawsuit will almost always require you to hire an attorney to bring the lawsuit. The process of litigation varies in different jurisdiction, but generally speaking, a lawsuit is filed with the court against the other party and the other party has a certain amount of time to respond to the lawsuit. This time period is where most of the settlement negotiations take place as the other party will realize that you mean business and will attempt to avoid large legal fees or a judgement against them. If there is no settlement during this time, the case continues down the normal process of litigation.

In conclusion, your image and the images that you create are important to you for one way another. Whether it be because of your reputation or because it is how you earn your livelihood. Regardless, it is important to keep watch for infringing activities. While there is no single way to completely monitor the internet for the unauthorized use of your image, keeping a vigil eye and knowing your options is certainly a step in the right direction.

 

5 Things You Need to Know About TRADEMARKS

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Trademark

 

 

Trademarks are everywhere around you, in fact by just looking around you right now, you are bound to see at least a couple of recognizable brands. To give you a better understanding of trademark law, here is a short list of five things you need to know about trademarks.

 

 

  1.      You may already have one

The “trademark” that comes to mind when most people think about trademarks are the brands with the “®” symbol and the brands that usually have federal trademark protection. But just because you haven’t registered your brand or mark doesn’t mean you don’t have trademark protection.

The ® that you see comes from trademarks that are federally protected and are registered with the United States Patent and Trademark Office. But without registering, you may still have trademark protection! If your trademark is not registered, the trademark that you may have is called a “common law trademark.” Instead of having your brand protected across the whole country, it is only protected in the particular area that it is being used in. For instance, selling your brand of chocolate bars in California may give you common law trademark protection in the state of California. If someone sells a chocolate bar with the same name in a different state, there is likely no trademark infringement. Whether you have a common law trademark will depend on the area you are using your brand in.

  1.      There’s more to Trademark than meets the eye

Federal trademark protection comes from a law called the Lanham Act. The Lanham Act does not just provide protection to your trademarks but also to service marks, trade dress, and to websites. Recently, trademark disputes involving websites have become a larger focus in the area of law.

The Lanham Act has entire sections dedicated to online protections against infringing activities such as cybersquatting. The law against cybersquatting is meant to prevent someone from using your trademarked domain name without your permission. Other harmful acts that the Lanham Act seeks to prevent are activities that tarnish or dilute a trademark. Whether an activity has resulted in the tarnishment or dilution of a trademark depends upon many factors dealing with the activity as well as the mark or brand itself.

Trademark

  1.   You can trademark smells…

And colors, sounds, shapes, slogans, and almost anything else that can be associated with a mark or brand. Trademark protection goes even further to protect things like trade dress and product packaging. Think about the setup of your local fast food restaurant or electronic store. If you go into different McDonalds or Radioshacks, you will probably notice that each store has a similar décor or atmosphere to the other stores. That goes to the “trade dress” of the particular brand. Thinking about the different smells of perfumes or the sound of the roar of the lion in the beginning of MGM films makes you realize why more than just a logo can be trademarked.

  1.      “Fair use” may not seem so fair

You may have heard of the words “fair use” in other contexts, in particular copyright law. Fair use can be a defense to trademark infringement. However, the fair use defense in trademark law is more restrictive than fair use is in other areas of law. There are 2 versions of fair use that are commonly used in defending against a trademark infringement lawsuit.

The first is set out in the actual law itself and is sometimes called “Statutory Fair Use.” This gives a defense to trademark infringement where the brand describes something, or is “descriptive.” If you were to use the words “beach boys” to describe boys on the beach, then statutory fair use would act as a defense to the trademark infringement.

The second is referred to as nominative fair use. Nominative fair use comes from using a trademark because there’s no other way to mention it. For example, if you were to mention Tide detergent in a newspaper article while you were referring to Tide detergent. That would be nominative fair use since there is no other way to mention Tide. Whether an activity counts as “fair use” under either of these defenses depends on the activity itself.

  1.     You need to stop it, before it stops you

Trademark infringement is a serious matter and can cause a great amount of damage to a company, its’ brand, and image. Just think about what would happen if everyone was able to sell “Coca Cola” flavored soda. People who bought Coca Cola would never know what to expect and that is precisely one of the goals that trademark law is trying to achieve, to prevent consumer confusion. So be smart about your brand or product. Think about whether you need to register it and also be sure to keep an eye out for unauthorized uses of your brand.