One afternoon you are hanging out with your family. Music is playing in the background and you are all enjoying yourselves. When a Taylor Swift song comes on your adorable daughter starts dancing and singing along.
It’s just all too cute so you whip out your phone, take a short video of it, and post it online. You get lots of likes and comments that afternoon, but after a couple of weeks you forget about it.
Then you get an email. The email tells you that your video has been removed. And that it was removed because someone submitted a DMCA takedown notice.
This is pretty much what happened to Stephanie Lenz in 2007. Stephanie posted a video of her 13-month-old son pushing a toy while a Prince song was playing. (Click here if you want to see the video.)
In a David v. Goliath fight, she pushed back against the record company. And with the support of Electronic Frontier Foundation, she sued them. The heart of the lawsuit was if it was appropriate for them to submit a DMCA takedown notice on her video. And last month, the court agreed with her that this was a misuse of the DMCA takedown notice procedure.
The court said that before sending a DMCA takedown notice you must consider fair use.
What is fair use?
To determine if something is or isn’t fair use we want to examine:
- the purpose and character of the use, including whether such use is of a commercial or non-commercial purposes
- the nature of the copyrighted work
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole
- the effect of the use upon the potential market for or value of the copyright
Fair use is one of the most complex copyright topics. Which is why I created a visual process that breaks down fair use.
So what does that mean for you?
I’ve always encouraged you to think about fair use before sending a DMCA takedown notice. But now you are required to.
This analysis doesn’t need to be complex. It could be a:
- simple worksheet
- column on your DMCA takedown notice tracking spreadsheet
- email to yourself/team member
- note in Evernote
You just need to write down why you don’t think this particular use is fair use.
5 steps to sending a DMCA takedown notice
Which means you should update your DMCA takedown notice system to include these five steps:
- determine if their use is likely fair use and if not, write down why you don’t think it is
- take screenshots of the infringing site
- locate the website’s host
- determine the Copyright Agent
- draft your takedown notice
There is one primary reason for documenting your analysis: money.
If you fail to record why it’s not fair use and submit a notice, you might be responsible for a big fat bill. And that is because you might have to pay the attorney fees for the person you submitted a notice to.
How you can easily apply this today
- Read this article to help you get a better handle on what is and isn’t fair use.
- Get a copy of the free DMCA takedown notice workbook by clicking the image below. It will help you gather all the materials you need to submit a takedown notice and gives you a place to note why the use isn’t fair use.
Has someone used your content without your permission? Are you curious if sending a DMCA takedown notice is your best action plan?