How do you respond to a copyright takedown notice?

Written by: Mark Terry

“I just received a copyright takedown notice. What do I do?” As a Board-Certified Specialist in Intellectual Property Law, this is a common question I hear– at least several times a month. Usually, the item in dispute is a document or photo that is being used on a client’s website. And usually, the copyright takedown notice includes a scary letter that threatens to sue for copyright infringement and hundreds of thousands of dollars. It ca instill fear in your typical law-abiding citizen who has never been involved in a lawsuit. Don’t panic – this is what you should do: 

First, you should remove the allegedly offending material as soon as possible. Even if you believe you have every right to display or use the work, remove it until you and your attorney can further evaluate the situation. Better safe than sorry. Second, find out who owns the work. The easiest way to find out the answer to this question is to determine where the work originated. Did it come from a stock photo bank? Did it come from someone else’s web site? Did you or one of your employees create the work or photograph? How did it get on your web site? The answers to these questions should illuminate who owns the work. Third, find out whether the aggrieved party has a copyright registration from the U.S. Copyright Office. This is important because a copyright registration from the U.S. Copyright Office will define the author of the work and the owner of the work. Thus, it will define the aggrieved party in the dispute. Also,a copyright registration will dictate the type of damages that are available to the aggrieved party. All works are protected by copyright law, but registered works afford a copyright holder more damages.

There are two types of damages for copyright infringement: statutory damages and actual damages. When a work has NOT been registered prior to infringement, the plaintiff may get actual damages. Typically, actual damages means the amount of the loss the plaintiff has suffered, or the profit the copyright infringer has gained. When a work HAS been registered prior to infringement, the plaintiff may get statutory damages. Statutory damages are defined in 17 U.S.C. § 504, which recites damages in the range from $750-$30,000 per infringement, and up to $150,000 per infringement when the court determines that the defendant acted ‘willfully’. Fourth, and last, if the three steps above reveal that you have infringed, determine the amount of damages you are potentially liable for (see 3rd step above), and make the other side a proportional offer. Of course, if the three steps above reveal that you have NOT infringed, then I would send the opposing party a brief letter stating that you have not infringed and your reasons why. Although it can be scary to receive a copyright takedown notice, knowing your rights and taking the proper steps to deal with the situation can lighten the blow of such a letter and put you on the path to a final resolution.


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