Content leaks are something all creators deal with. One of the major ways a creator can have their leaks removed is through the DMCA laws. And yet we often see confusion about everything to do with DMCA, DMCA services, and copyright infringement. So, over the course of four resources, three written and one video, we are going to be breaking down everything to do with DMCA takedowns and protection for creators. We are not doing this one alone, y’all! This deepest of deep dives was created in partnership with Bruqi, the DMCA takedown service and experts in the field. In this first section, we are breaking down DMCA, copyright, and copyright infringement.
Legal disclaimer: I am not an expert in the field, nor am I a copyright lawyer. Please consult a licensed professional with any concerns or questions. This resource is written in paid sponsorship with Bruqi.
DMCA & Copyright: The Basics
What does DMCA mean, and why do creators care?
DMCA stands for the Digital Millennium Copyright Act. It’s a US copyright law passed in 1998, and the piece we’re primarily talking about in this resource is Section 512, which created the notice-and-takedown system we use when copyrighted work ends up online somewhere we didn’t put it. So when somebody takes our paid content, reposts our photos, uploads our content to a leak site, or otherwise distributes our copyrighted work without consent, a DMCA takedown is one of the tools you may be able to use to get that material removed or access to it disabled.
When our content is posted without our consent, a lot of concerns pop up:
- We don’t get to choose how we are being presented, and our image or content may be being paired with text, captions, descriptions, etc we would not align with and could damage our brand.
- We do not have control over where it is being posted. Having our content on sites that allow illegal content can also further damage our brand image.
- We do not have control, nor will we receive any of the income generated from our content and our labor. Instead, the thief will.
💡 Now let’s talk where folks get a bit twisty. Often in Creator spaces, I see creators misusing the terminology around DMCA and DMCA services and DMCA takedowns. The DMCA is the law. That is the law everyone must follow in the US. Now, a DMCA service is a company that helps you use that law. You do not need to have a DMCA service to have DMCA protection. If you are a copyright owner or you are authorized to act for a copyright owner, you can submit your own DMCA takedown notice.
What are DMCA takedowns?
Now that we’ve covered a little bit more about the actual laws around the DMCA, let’s talk about the part that most creators actually have to deal with, and that is DMCA takedowns.
The TLDR: DMCA takedowns are essentially a formal copyright infringement notice. That would look like you, as the copyright owner, formally telling an online service provider that specific copyrighted material is being used on their service without your permission and formally requesting they remove or disable access to it.
That online service provider could be the website where your content was uploaded. It might be a social media platform. It might be the company hosting the website. It could even be a search engine that is directing people to an infringing page.
Why would any of these companies actually listen to you?
Why does a giant website care that one creator emailed them saying, “Hey, that’s my shit posted… And I did not put it there”? The answer is DMCA safe harbor.
The US Copyright Office describes Section 512 as a system Congress created to give qualifying online service providers limitations on copyright liability while also creating incentives for copyright owners and service providers to work together to address infringement online. Safe harbor is basically a set of protections within Section 512 that can limit an online service provider’s liability for copyright infringement happening through its service, as long as that provider qualifies for the protection and follows the requirements attached to it. One of those requirements involves what happens, including removing or disabling access to stolen content, after the provider receives a compliant notice of claimed copyright infringement.
💡 Think about it like this: Someone on Instagram starts a catfish account of you, steals all your content, and starts posting it back to their account on Instagram. Insta is not the one who stole your content; the user is. In this case, Instagram will be better protected by following through with a takedown. Long story short, many platforms and sites will absolutely help if everything is done correctly to be able to keep within the safe harbor protection and cover their own ass. Not all of them, but many will.
This is why most sites and platforms will have DMCA or copyright pages with a designated agent to receive complaints. Making this information public will keep them compliant with these laws. The Copyright Office maintains a public DMCA Designated Agent Directory where you can search for those designated agents.
What does copyright mean, and why do creators care?
Copyright is basically the legal protection we have over the original content we create. Copyright is defined as a type of intellectual property protection for original works of authorship once those works are fixed in a tangible form. For us creators, “works of authorship” can include things like the photos we take, videos we record, graphics we make, written resources, audio, and a whole hell of a lot more. Copyright gives the copyright owner certain exclusive rights over that work, including rights involving copying, distributing, displaying, performing, and creating derivative works.
Why do we care? Because copyright is the foundation underneath the DMCA takedown process we’re talking about in this entire resource. So before we can start screaming DMCA at every leak we find, we need to understand what we actually own, what copyright protects, and whether the thing we’re looking at is actually infringing that copyright.
Do I Need to Register My Copyright?
Most of the time, nope! You do not need to register your work with the US Copyright Office before you own the copyright, and you do not need a copyright registration before sending a DMCA takedown notice. That is because your copyright exists automatically once an original work is created, and the US Copyright Office specifically confirms that registration is not required before sending a takedown notice. So if someone leaks a video you own, you don’t have to sit around waiting for a registration certificate before you start trying to get it taken down. You own it already.
💡 That does NOT mean registration is totally useless, though. Registration becomes a whole lot more important if things move beyond a normal takedown and into actual legal action. For US works specifically, registration is generally required before bringing a copyright infringement lawsuit in a federal court.
Who actually owns the copyright?
This is a big thing to focus on, so let’s look at common examples. Being in the content DOES NOT equal owning the content. Copyright initially belongs to the person who creates the work. So, if you shoot your own content, edit your own graphics, etc, this is pretty straightforward. It’s when we start looking at things like collabs and professional shoots that things get twisty.
Professional Photography
Let’s say you hire a photographer for a photoshoot. You pay them, you pose, they send you the images, and you post those images all over your platforms. Paying for the shoot doesn’t automatically mean you bought the copyright, and being the person in the photo doesn’t automatically make you the copyright owner either. The US Copyright Office is specific in stating that the photographer generally owns the copyright to photographs they take, even when someone else hired them, unless the copyright has been transferred.
That doesn’t mean that you cannot gain ownership of the copyright. A photographer can transfer copyright ownership to you, but a transfer of copyright ownership generally needs to be in writing and signed by the copyright owner. THIS is why we need to actually read our photography agreements.
Collaborations
Collabs can get even messier if contracts and agreements are not put in place prior to filming. When two or more people create a work together with the intention for their contributions to become one work, that might qualify as a joint work. When it is a joint work, all authors are co-owners of that copyright. Who created what, what everyone intended, and what your agreements actually say can matter. So if you regularly shoot collabs, especially content you’re both going to sell separately, this is one of those areas where having the copyright and usage rights written down BEFORE the shoot can save everyone a massive headache later.
Works made for Hire
There are also exceptions called works made for hire, but we cannot assume that simply hiring somebody makes their work yours. A work created by an employee within the scope of their employment can qualify as a work made for hire, while commissioned work only qualifies under specific circumstances laid out in copyright law.
Copyright Infringement: The Quick Dip
What is copyright infringement? How does it affect the individual creator?
Copyright infringement is when someone uses our work that we have the copyright for, without our permission and without another legal exception allowing that use. Copyright owners are the only ones with exclusive rights over things like reproducing their work, distributing copies, publicly displaying certain works, publicly performing certain works, and creating derivative works. If someone other than the copyright owner shares their works without permission, or as we are used to calling it, leaks it, that is copyright infringement.
💡Definition: Derivative works are any works made new using major elements from pre-existing works. For example: a collage of your photos in one, or your image with the background changed or removed.
For an individual creator, this matters because those rights are literally what give us control over how our work gets copied, shared, displayed, sold, and generally used. Now, before we start calling literally every use of our content infringement, there IS some nuance here. Permission, licenses, who actually owns the copyright, and legal exceptions like fair use can all change the situations at hand.
What counts as potential copyright infringement?
For creators, infringement can look like a whole lot more than someone just downloading and redistributing our works. Potential copyright infringement can look like someone reposting our photos to their own page, uploading our paid videos to a leak site, sharing downloaded PPV or subscription content, screen-recording content and redistributing it, selling copies of our content, putting our work behind THEIR paywall, or uploading our files somewhere other people can download them.
That all seems like very obvious copyright infringement violations. But let’s look at derivative works, where we are again getting twisty. Someone changing our content a little doesn’t automatically make it free game either. Cropping a photo, mirroring a video, turning part of a video into a GIF, adding text over it, putting it into a compilation, or otherwise modifying the original can still potentially raise copyright issues because copyright owners also hold the exclusive right to prepare derivative works based on their copyrighted work. That does NOT mean every edit, meme, reaction, or use of our work is automatically infringement, because things like permission, licenses, and fair use can change the answer.
This is part one of our four-part series covering everything about DMCA Takedowns and Protection, created in paid partnership with Bruqi, the DMCA Takedown service for creators. Keep your eyes peeled for part two!
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