I HATE seeing children being used as memes or in negative ways on the internet. Like, I truly hate it. As wonderful as it is to see smile-inducing photos of beautiful kids on social media when the original photos are posted by loved ones, there are some opportunists out there who will superimpose or caption the most offensive, vile, and harmful language on these precious photos. And this happens more than you would think.

The Washington Post ran a story just last week about a photo of a 4-year old girl pictured with Secretary Hillary Clinton that was turned into a disgusting meme. The photo, taken in Charleston, South Carolina at a 2015 Clinton campaign event, was originally uploaded to the Clinton campaign Flickr page. A few days after Clinton lost the election in November 2016, someone took the photo and turned it into a meme. According to the article, 

Bold white type across the top of the image read, “I AM FOR WOMEN’S RIGHTS!” Then halfway down, text covering the lower half of [the little girl's] body accused Clinton of accepting money and refugees from countries “that would mutilate this girl’s genitals, marry her to a Muslim pedophile, and stone her to death if she doesn’t wear a bedsheet.”

I don't know about you, but it sickens me to hear that comments incorporating mutilation, stoning, and pedophilia were plastered across this child's body. 

This activity isn't just limited to memes. Just this morning, a colleague forwarded me a link to an incredibly racist and offensive message board with a post titled, "Niggers flown into L.A. to tour nigger-loving colleges." The post incorporates a photo and the names of two of the MINOR CHILDREN in the photo, which it stole from this news article. The original article is a story about the Kappa Leadership Institute of Chicago, which takes 9th-11th grade African-American students on college tours.  

Sometimes using photos of kids leads to positive outcomes. But, what if you don't want your child featured this way? Or what if it leads to cruel Internet bullying

You can, of course, take the approach of some parents and refuse to post photos of your children online.  But, this is tough for many people, particularly those who have family and friends in far away places who may not see the children often. So what are parents to do? 

I've written about this elsewhere in the context of rights of publicity, which may be applicable. Another solution can be found in copyright law. If you actually took the photo (or obtained the copyrights in the photo some other kind of way), you own the copyright rights in the photo automatically (nothing has to registered or put in the mail in a self-addressed envelope).

DMCA Takedown Notice

As a copyright owner, you can use something called the Digital Millennium Copyright Act (DMCA) takedown notice, even if your copyright isn't registered. If you aren't the copyright owner of the photo, you can get the person who is to send a notice.

*Keep in mind that you don't own a copyright just because you or your child are in the photo, or because you paid for the photos (say, from a photographer). Ownership originally belongs to the person who created the photos, unless you've received the copyright through a written agreement, a work-for-hire situation, or something like that. 

The DMCA says that an Internet Service Provider (ISP) must remove materials from its users’ websites that appear to be copyright infringement after getting an appropriate notice. ISPs include companies and organizations that provide their customers with Internet access, including big companies like Comcast, Time Warner, Verizon, and Cox, or smaller entities. 

[Please note that the below steps apply to any type of copyrighted work, not just photos. If you want to know what types of works are protected under copyright law, I've created a list elsewhere.]

If you want to send a DMCA takedown notice, here are three simple steps to follow:

#1 Consider whether the use is a fair use or not.

"Fair use" is a defense to copyright infringement - meaning, if something is considered fair use, it is legal and cannot be taken down. If you have a good faith belief that the activity is not covered by fair use, you should be protected in demanding that a photo be taken down under the DMCA. So how do you figure out whether a use is fair or not? 

Fair use is outlined in Section 107 of the Copyright Act, which provides that:

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 
(2) the nature of the copyrighted work; 
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

This isn't really a bright line test, more like a balancing of all of the various elements. There aren't black and white answers for whether fair use exists, but here are some guidelines

The “purpose and character of the use” is one of the most important factors. Most courts ask whether the copyrighted work (i.e., the original photo) has been used as a basis for creating a new work (called “transformative use”) or just copied and/or placed directly into something else. The more changes that have been made, the more likely that it will be considered fair use. In my opinion, an original photo with words typed over it, like a meme, probably isn't transformative enough to be protected by fair use. 

Regarding the "nature of the copyrighted work," a court is more likely to find fair use when the original work (i.e., the original photo) used has been published, rather than unpublished. In the context of social media, photos published online are probably considered "published," though this may depend on the nature of your privacy settings, how many people the photo was shared with, and that kind of thing.

With the "amount" used of the original work, if a small amount is used, this is more likely to be considered fair. With photos, this may be tough to apply, because typically the entire photo will be used. This may be relevant in the context of photoshopping though, or if the photo is used as part of a larger video (think the #UNameItChallenge videos, which incorporate lots of photos into one video). 

Finally, regarding the effect on the market, what matters most is whether you (or the original copyright owner) could have made money off of the photo. Courts usually consider whether the unauthorized use impacts and competes with the original owner's potential for income. If it does, this is not fair use. 

Determining fair use can be difficult, but what is most important is that you weigh all of the considerations. The most important thing, again, is that you have a good faith belief that the use isn't fair. If you have a good faith believe that the use is illegal and not fair use, proceed to step #2.

#2. Find the ISP that is hosting the website where the image is posted. 

Most social media sites have specific DMCA takedown forms that you can fill out easily online. Here are links to some of the biggest: 

Facebook DMCA Takedown Notice

If you want to send a complaint elsewhere, you can usually find the ISP hosting the website pretty easily. Type the domain into a site like https://www.internic.net/whois.html or https://www.whois.net/ to determine who is hosting the website. Upon finding the host, you can send your DMCA takedown notice there. Most of those hosts will have their DMCA process posted somewhere on their website.

If you can't find the information for the host, the DMCA requires ISPs to provide the Register of Copyrights with contact information for a designated agent who can receive takedown notices. The Register of Copyrights publishes this directory of agents online at: http://www.copyright.gov/onlinesp/list/a_agents.html .

#3 Draft the DMCA takedown notice. 

While there is no specific format for a DMCA takedown notice, there are some things you need to include:

  1. Your signature, as the copyright owner or the person authorized to act on the copyright holder's behalf

  2. Identification of the original, copyrighted work that you claim has been infringed/wrongfully posted;
  3. Identification of the material that is infringing/wrongfully posted & where it is located (perhaps by link or screenshot);
  4. Your contact information (email address, phone number, address, etc.);
  5. A statement that you have “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;"
  6.  A statement that, “under penalty of perjury, that the information contained in the notification is accurate;” and
  7. A statement that you have the right to proceed, because you are either the copyright owner or the person authorized to act on the copyright holder's behalf.

I've included a sample takedown notice at the end of this post. The ISP will usually remove the infringing/wrongfully posted photo in 24-72 hours. 

These three steps will help you get photos of your kids (or yourself) taken off the internet. If you'd like to read more about best practices for takedown notices, the United States Patent and Trademark Office has posted a great set of guidelines for such notices on its website here

P.S. If you send one of these notices, the person who is the allegedly infringing poster can file a counter-notice, basically disputing your claim. You'll get a copy of that counter-notice. The ISP will decide within 10-14 days whether to post the photo back online. At that point, you'll have to make a decision about whether to file a lawsuit or not.

Hopefully this information is useful to someone out there who doesn't know where to turn. 

SAMPLE DMCA TAKEDOWN NOTICE

To Whom It May Concern:

My name is [Your Name] and I am the copyright owner of work(s) being infringed at [www.___________.com]. This letter is a Notice of Infringement authorized under §512(c) ofUnited States Copyright Law. According to [InterNIC, WHOIS, etc.], your company hosts, on its servers, the website where the infringing work appears. I am contacting you as the designated agent for the website.

This letter serves to assert my rights under the Digital Millennium Copyright Act (DMCA) and requests removal of the infringing content from your servers. Specifically, I request that you: (a) notify the infringer of this letter, (b) inform the infringer of their duty to remove the infringing work immediately, and (c) demand that the infringer cease posting any infringing work to your server in the future.

Please be advised that law requires service providers to “expeditiously remove or disable access to” the infringing work upon receipt of this notice. The failure to do so may result in a loss of immunity for liability under the DMCA.

I have a good faith belief that the use of the aforementioned copyrighted work(s) appearing on the website for which you are the designated DMCA agent is not authorized by the copyright owner, its agent, or by law. I declare, under penalty of perjury, that this notice is true and correct and that I am the copyright owner entitled to exclusive rights which I allege are being infringed.

Please send me a prompt response indicating the steps you have taken to resolve this matter. If you would like to speak with me directly, I can be reached at the email address or phone number below.

Best Professional Regards,

/s/ [Your Name]

[Email Address]

[Phone Number]

[Mailing Address]