Digital Millennium Copyright Act (DMCA)

DMCA Attorneys

Using the Digital Millennium Copyright Act (DMCA) to Protect Online Content

When you share copyrighted material online, there is always a risk that others may use or infringe upon your work without your permission. This could include unauthorized reproduction, distribution, public display, incorrect attribution, or adaptation of your content. Copyright infringement can lead to loss of income and opportunities, and cause brand or reputational damage.

In such cases, you may need to take action to enforce your rights and protect your work.

Social media influencers and other online content creators can use Digital Millennium Copyright Act (DMCA) takedown notices to protect their content from unauthorized use or infringement on social media platforms and other websites.


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What Is the DMCA?

The DMCA is a U.S. copyright law that provides a framework for protecting intellectual property online. It was enacted in 1998 to give peace of mind to copyright holders who were fearful of hosting their creations online. The Act also grants certain liability limitations to online hosting platforms for copyright infringements committed by their users. Congress’ intent was to encourage the development and growth of the burgeoning internet industry.

For creators, the most powerful aspect of the DMCA is the ability to issue “takedown notices” to website hosts or social media platforms that infringe on your copyright.

You do not have to register your work with the U.S. Copyright Office to use DMCA takedown notices.

Social media platforms and Internet Service Providers (ISPs) are required to remove access to alleged infringing material upon receipt of a valid DMCA notice. Failure to comply with a DMCA takedown notice puts the online service provider at risk of losing their “Safe Harbor” protection under the Act, which shields them from liability for copyright infringement.

Who Can File Takedown Requests?

A copyright holder or their authorized representative can file a takedown notice. This means that any individual or entity with a valid copyright claim on a work has the right to submit takedown requests to online service providers, including:

  • Graphic designers
  • Authors 
  • Musicians
  • Thought leaders
  • YouTubers
  • TikTokers
  • Bloggers
  • Social media users or influencers
  • Photographers
  • Business owners
  • And more

Unlike lawsuits based upon copyright infringement, utilization of the DMCA takedown notice process do not require that the work be registered with the U.S. Copyright office. This detail is extremely important in the age of social media marketing and influencing when images and content can be screenshot and spread.

It is important to note, however, that the DMCA only applies to copyrights and does not protect other intellectual property, such as trademarks or patents.

How to Use DMCA Takedown Notices

If you discover unauthorized use of your content, gather evidence of the infringement, such as screenshots or links to the infringing material.

All ISPs and social media platforms (at least those that adhere to the law) have a process for copyright holders to issue a takedown notice. Generally, the provider’s Terms of Use detail how and where to send the notice.

Your takedown notice to the ISP or social media platform should include:

  • A statement that you are (or authorized to act on behalf of) the copyright owner;
  • Specific identification of the infringing material;
  • Identification of the location of the infringing material on the website;
  • Contact information;
  • A statement that the use of the material is unauthorized; and,
  • A sworn statement that the information submitted is true and correct.

Once submitted, social media platforms and ISPs will usually take prompt action to remove or disable access to the infringing material. They may also notify the alleged infringer of the takedown.

Which Countries Accept Takedown Notices?

The DMCA primarily applies to U.S.-based social media platforms and ISPs, but many international platforms have similar mechanisms for reporting copyright infringement. Be sure to review the specific policies and procedures of each platform you use to protect your content effectively.

What If The Takedown Notice Is Contested?

If the alleged infringer believes the takedown was in error, they have the option to submit a counter-notification to contest the takedown. Common contest claims are that the content is a parody or considered “fair use” under copyright law.

Upon receiving the counter-notification, the ISP will forward it to you, the copyright holder, and provide you with a copy. They typically wait a designated period (often 10-14 business days) to ensure you have an opportunity to pursue legal action if you choose to do so.

If your takedown notice is contested, you generally have two options:

  1. You can pursue legal action against the alleged infringer and inform the ISP or social media platform that you have initiated legal proceedings. If you choose to proceed with legal action, you should consult with an intellectual property attorney to guide you through the process. An attorney can assist you in preparing and filing the necessary legal documents, representing you in court, and advocating for your rights.
  2. You can take no further action. If you do not take legal action within the designated period or inform the ISP of legal proceedings, the ISP may restore the removed material after the waiting period expires.

When Should You Get an Attorney Involved?

If the infringing party continues to use your content despite your efforts, an intellectual property attorney can guide you on further legal options and potential remedies.

How can an intellectual property attorney help you protect your online content?

  • An attorney can guide you through the process of copyright registration, including determining which works are eligible for copyright protection, completing the necessary forms, and submitting the registration application to the appropriate copyright office. Registering your copyrights strengthens your legal standing. Once registered, if your work is infringed, you will be able to bring a federal lawsuit seeking enforcement of your copyright and seek statutory damages and attorney’s fees.
  • If your copyrighted material has been infringed, an attorney can assist you in enforcing your rights. They can help you send cease and desist letters or engage in negotiations with the infringing party to resolve the matter. In some cases, they may recommend filing a lawsuit to seek legal remedies, such as damages or injunctions.
  • If you wish to license your copyrighted material for others to use, an attorney can assist in drafting or reviewing licensing agreements. They can ensure that the terms and conditions are fair and protect your rights, while also addressing issues such as royalties, usage restrictions, and termination provisions.

It's important to work with an attorney who is familiar with intellectual property law and social media law. The intellectual property and social media attorneys at Hendershot Cowart P.C. can provide you with tailored advice, help you navigate a complex social media legal landscape, and maximize the protection and enforcement of your copyrighted material.


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