By: Boran Ding

As a startup, social media can be a valuable tool with which to market your brand and business. These advertisements and promotions may take the form of YouTube videos, Instagram posts, and even Tweets. However, the content that you create and post on social media platforms is subject to certain restrictions under copyright law. Thus, it’s important to know what to do when things go wrong online. This blog post will discuss what to do if you receive a DMCA takedown notice. A later post will discuss what to do if you receive a copyright cease & desist letter.

 

The DMCA

The Digital Millennium Copyright Act (“DMCA”) is important (or should be) to all digital content creators, whether their chosen channel be YouTube, Instagram, TikTok, or a blog. This law governs what happens if you publish content that may have infringed on another person’s copyright. One way in which the DMCA frequently affects digital content creators is the DMCA takedown notice. This notice requests to remove allegedly infringing work from a website because it allegedly infringes upon a copyright from another source. Takedown notices are a common alternative to a cease and desist letter, which will be discussed in a later blog post. To file a takedown notice against you, the individual must identify themselves as the copyright owner of the work that has been infringed upon, and your material has infringed upon that work. They will then send that notice to the website where your work appears. Once these websites have received the notice, they are legally obligated to remove the content and notify you that they have done so. Once you receive that notification, you have the option to file a counter-notice fighting the takedown with the website through some options discussed below, which the website will then deliver to the original filer. If the filer doesn’t reply within 10 days, the website can then restore the removed content. Let’s examine the content removal processes on two popular social media platforms – YouTube and Instagram.

Content Removal on YouTube

YouTube will remove your videos for copyright infringement in cases where it triggers a match with YouTube’s “Content ID tool,” which is an automatic process that checks every video uploaded against a database of audio and video reference sources that have been submitted by copyright holders to detect infringement. If there is a match, the copyright holder is allowed to decide how to proceed – he or she can either have YouTube block your video, leave it up and track viewing statistics, or monetize it by adding ads.

In most cases, the rightsholder will elect to set content that matches their copyright to be blocked automatically. As a result, it’s very likely no human was actually involved in the review of your video. This is why it’s important to submit a “dispute” notice to YouTube if you believe your video has been taken down wrongfully. When you submit a dispute, the rightsholder is notified and your video goes into their “review” queue to actually be examined. Once the dispute has been submitted, the rightsholder has 30 days to decide whether to reject the dispute and uphold their claim or release it. If the rightsholder upholds the claim and your account is in good standing with YouTube, you may appeal the claim 3 times. After each appeal, the rightsholder has 30 days to either release the claim or issue a formal DMCA takedown notice.

If the rightsholder decides to issue a DMCA takedown notice, you must file a formal counter-notice. If you do not, YouTube places a “strike” on your account and requires you to complete a mandatory online class from its “Copyright School.” After 3 strikes, your account gets cancelled. If you do file a counter-notice, the rightsholder has 10 days to either release the claim or begin a lawsuit against you. Disputing a DMCA takedown notice comes with higher stakes than simply disputing a content ID match because if the rightsholder wants to keep the video down at this point, they have no option but to sue you. Accordingly, you should analyze whether you may have the right to use the video under fair use when dealing with copyrighted material.

If you do get sued, you should immediately seek legal counsel – lawsuits are expensive, and it’s possible you may have to pay for the other party’s attorneys’ fees if you lose. Even if you win, you may have to foot your own legal bill. Additionally, you may also be liable for any profits the rightsholder lost due to your video in the form of actual damages, as well as any profits you made from the video if you lose. However, you should balance the risks of a lawsuit against whether you believe you have a fair use defense because there have been instances where creators have “won” the dispute before it escalates to a suit. For example, the DMCA is sometimes abused by certain corporations and big Hollywood studios that have a vested interest in controlling online discussion about their product. This is especially true if the allegedly infringing content you have posted criticizes, parodies, or mixes their content with other themes.These corporations will often use bots whose sole purpose is to file frivolous takedown notices to take these types of content down, even though they may be protected by the First Amendment. You should be aware of the potential for these abuses and to not be deterred from filing a counter-notice if you believe you’re following fair use practices. If the case does ultimately end up in court, it’s common for the corporations to relent, given the amount of DMCA takedown notices that are filed every year. Furthermore, you can always back down at any point if the cost isn’t worth it to you.

Content Removal on Instagram

We first begin with a discussion of the rights you hold to the content you post on Instagram. Your rights are found under the section discussing “Your Commitments” in Instagram’s Terms of Use. When you make posts on Instagram, you are the owner of that content, meaning that anytime a third party wants to use your content, they must obtain permission from you, and not Instagram. However, using Instagram does mean you are giving them a global non-exclusive license to host and use your content, as long as it complies with Instagram’s privacy and application settings. If you use any images, designs or videos that Instagram provides (such as Instagram filters) to create content, Instagram retains the rights to that content while you retain the rights to yours. If you use any of Instagram’s trademarks, you must do so under their “Brand Guidelines” or with their written permission.

You are only allowed to post photos and videos that you’ve either taken yourself, or that you have the right to share. Anything else would constitute copyright infringement, subject to a few exceptions. You may point to the myriad of accounts on Instagram that curate the content of others by reposting them with perhaps a line of credit but often without their explicit permission. This may not necessarily be copyright infringement, however. First, the nature of the original post must be examined. Copyright requires a minimum amount of creativity, so a post that simply says “Happy Birthday,” or something comparably common would not be copyrightable. If the original content is copyrightable, fair use defenses may still apply. It’s not exactly clear how much additional content would have to be added to make the use transformative, but it’s theoretically possible that curating a collection of other people’s work is fair use. For example, an artist printed out the Instagram posts of other people onto canvases and sold them for thousands of dollars. When he was sued, he claimed fair use because the canvases included not only the original content, but also user comments, likes and other elements that “have become iconic elements of the modern internet.” In that case, the judge ruled that the work wasn’t transformative enough to qualify as fair use but left open the possibility that the transformative works defense could apply to Instagram content.

To avoid copyright infringement on Instagram, you should be cautious posting content you’ve found online. While many online photos are available for free commercial use, you should check the site and tags associated with the image just to be sure. As a rule of thumb, it’s best to assume that every image found online is copyrighted. This is because a copyright notice isn’t legally required to notify others of copyright ownership. Even if you make an addition to an image (by adding a filter, for example), it may not necessarily relieve you from potential liability, so it’s good practice to always obtain permission.

As you build your social medial platform, you should also remember that you are liable for what you upload, even if you hire a social media professional to choose the images. Thus, you should ensure that your contract with any consultants contain a provision that will indemnify you if an image they post is found to violate a copyright and you are required to pay damages.