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How can I defend against a DMCA takedown that results in my suspension from an online retail website?

Endicott, NY |

This is the scenario that concerns me. I sell a fine art print of a public domain work on a site like Amazon, using a photograph that originated from the museum that owns the piece (such as those currently available on WIkipedia). According to Bridgeman vs Corel, photographs of two-dimensional works of art produced solely for documentary purposes are not protected by copyright, if the subject work is in the public domain. However, as this is not settled law, many museums still claim ownership and expect you to license.

If Amazon (or other retailer) receives DMCA complaints about these products, my account could be suspended, severely damaging my business. In that case, I would need the DMCA complaint withdrawn in order to resume business. What are my legal options here?

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Attorney answers 3

Posted

You could read 17 USC 512 and try to figure this out or you could do the smart thing and see an IP attorney or Internet attorney that handles DMCA matters. You will need to be prepared to file DMCA counternotices. That doesn't "get the complaint withdrawn", it just trumps it legally. That forces the alleged copyright owner to sue you and get a court order to take your material down. Most museums will not do that as they don't want to risk a determination that you and others like you are legal.

Bottom line: Time to lawyer up.

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

Asker

Posted

I hear what you're saying. The thing is I don't mind taking down some of my material if a given institution complains about their stuff. What I'm worried about is permanently losing my account with an online retailer because of the complaint itself, which the retailer will treat as a "policy violation" regardless of its legitimacy. Were this to happen, I would need the institution to withdraw the complaint with the retailer in order to get my account reinstated. Do I have any legal leverage to that would allow me to negotiate this outcome with the institution? Again, I'd remove their stuff, even pay a little--the important thing would be to get them to drop the complaint. I do understand the foolishness of trying to be your own lawyer, and the necessity for professional counsel. What I'm hoping to find out here is what a lawyer can/cannot do for me in this situation.

Maurice N Ross

Maurice N Ross

Posted

A lawyer can negotiate this for you, but the fact is that if you face several take down letters like this, your account will be suspended (and rightfully so).

Posted

Your option is to sue the person who made the DMCA complaint and establish that your view of the case law is correct. But I think it is clear that your view of the case law is not correct. Photographs of public domain works are protected by copyright if the photographs meet the standard of originality in the copyright law. It takes very little to make something original and satisfy the standard. Thus, selection of outstanding lighting alone can be sufficient to render a photograph original. The angle of the photograph can be sufficient to create some original. The way the underlying work is framed in the photograph can satisfy the originality requirement. The clarity and color tone of the photograph can establish the originality requirement. A well-crafted photograph that embodies a public domain work and faithfully translates the elements of that underlying work in a clear and compelling manner can be sufficiently original to justify copyright protection. Museums often hire very accomplished professional photographers to create these photographs and I can assure you that the vast majority of courts will recognize them as sufficiently original to qualify for copyright protection. You should not be using such photographs without a license, nor should you use them to create your fine art prints without a license. Fine art prints that copy public domain works, like photographs of the works, can be sufficiently original to justify copyright protection. If your business is built upon using other people's photographs to create your prints, then frankly, your business should be shut down. Make our own original prints of the public domain works from your own photographs---then you contribute something to society. Copying the photographs of others is not cool---and that seems to be your modus operandi.

I am not your lawyer and this is not intended to be legal advice on which you rely. My answer is merely intended to assist you in understanding some of the issues that you face so that you can make an intelligent choice when you hire legal counsel.

Maurice N Ross

Maurice N Ross

Posted

By the way---Bruce is right about how the DMCA scheme works. You object to the takedown notice, and then the web-site is supposed to put your work back on line. The person who issued the notice then can sue you and the dispute is between you and the person who issued the notice, not you and Amazon or E-bay. But Amazon and E-bay have terms of use that give them the right to suspend accounts of people who get too many such take-down notices. And your business model is screaming out loud for such take-down notices, which seem to be entirely proper. If the person who issued the take down notice does not sue you, you can always bring an action for a declaratory judgment to challenge the claim of copyright protection. Good luck with that one.

Maurice N Ross

Maurice N Ross

Posted

Also, with due respect, I think you give far too little credit to the talents and abilities of photographers who create photographs of public domain works. Any professional photographer will tell you that great skill is required for this---which is an art form in itself. If you are in the business of selling fine art prints, then you have the obligation in my view to hire a photographer or otherwise invest in making a fine original depiction of the original work. That would solve your problem and avoid placing you at the mercy of the DMCA takedown scheme.

Asker

Posted

I don't agree that there is anything unethical in copying a copy of a 2d public domain work of art. On the contrary, I would argue that it is unethical and contrary to the social mission of museums to, in effect, lock away items of our cultural heritage in near-perpetual copyright. For the most part, permission to photograph these works is limited to photographers who are hired by the museums, allowing the institution to claim exclusive rights to reproduce PD works in their collection—collections that are often purchased and maintained with public money. Making these works accessible has a positive social effect, both in cultural as well as economic terms. How many Disney movies have been based upon public domain works of literature? As a graphic designer, I appreciate the technical skill that goes into a photographic reproduction. Translating a digital photograph into a print requires comparable technical skills, and likewise involves a series of difficult aesthetic decisions—but I would not feel cheated if someone copied my work (much of which, incidentally, does come directly from original lithographs, etchings, &c, that I own). My understanding is that the courts have tended to take the position that photographs of this kind lack sufficient originality to generate a new copyright (e.g., Bridgeman vs Corel). Moreover, museums themselves are moving toward open content policies (the majority of my inventory, in fact, comes from institutions that disavow any ownership of the images they publish). While I respectfully disagree with the value judgement contained in your original response. I do sincerely appreciate your legal advice (and Bruce Burdick's) and will take everything you've said into serious consideration. Thank you.

Posted

There are two ways you could go - you could either get a license (a time consuming and expensive endeavor) or fight the DMCA take down notice. Have any online retailers in fact received DMCA takedown notices for your prints? Are your prints "produced solely for documentary purposes"? It sounds more like for a commercial purpose but it may be both. You should check the DMCA take down notice policy of any site you plan to use. Feel free to contact me.

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