Click here to learn about why you may want to copyright your images or videos.
- In order to register a copyright, the victim must provide a copy of the “work” to be copyrighted to the Copyright Office, meaning that in cases of cyber sexual abuse, often times the victim will be providing the very image that caused offense and trauma in the first place. Many victims are justifiably concerned about further spreading an image they have worked hard to remove from the Internet. However, the U.S. Copyright Office has stated that “only the person processing the [copyright] application would see the pictures” requested to be copyrighted. Many victims have successfully utilized copyright to combat cyber sexual abuse as websites and servers are often quick to remove copyrighted material from their sites.
- To register a copyrighted work with the Copyright Office, one must submit a registration application either by mail or online. Online registration is recommended as it has a lower filing fee and faster processing time, and there are status tracking capabilities. In addition, where the copyrighted work is a video or an image, it is easier to upload the work to the electronic Copyright Office (“eCO,” see https://www.copyright.gov/registration/) than mailing it.
Registration requires the following:
- Application Form
- Filing Fee (usually under $100)
- Deposit (i.e., a copy of the work being registered must be “deposited” with the Copyright Office. Deposit copies are retained by the Copyright office and not returned).
- Registration is recommended for a number of reasons. Copyright registration ensures that the facts of a copyright are on the public record, and the Copyright Office provides a certificate of registration, which is often required by the court in a copyright infringement case. In addition, to be eligible for statutory damages and attorneys’ fees in a copyright infringement case, the copyrighted work must be registered before infringement commences, with limited exceptions. Actual damages in an infringement suit may be either nominal or difficult to prove so having the ability to claim statutory damages in extremely significant and may even determine whether it makes sense to sue in the first place. Finally, if registration occurs within five years of publication, it is considered prima facie evidence in a court of law of the validity of the copyright and of the facts stated in the registration certificate.
- Section 512 of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 101 et seq., outlines requirements for a copyright holder to file a takedown notice with a website or computer service hosting (the “ISP”).209
A takedown notice should be served on the designated agent of the ISP and include the following:
(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 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.
- In construing the DMCA, courts have recognized that a party demanding a takedown “faces liability if [he or she] knowingly misrepresented in the takedown notification . . . a good faith belief the video was not authorized by the law, i.e., did not constitute fair use.” Accordingly, it is important that the party demanding the takedown actually have lawful authority as (or from) the copyright owner.
DMCA also requires ISPs to include the contact details of its designated agent “on its website in a location accessible to the public” and to provide such details to the Copyright Office. Thus, to the extent the information cannot be found on the ISP’s website, a victim may request it from the Copyright Office.
- DMCA permits a copyright owner or person authorized to act on the owner’s behalf to request a subpoena from the clerk of any U.S. District Court to be issued to any ISP hosting infringing material in order to identify the alleged infringer.213
The subpoena request should include:
- A copy of the takedown notice
- a proposed subpoena
- a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under title 17 of the U.S.C.