How Do You Respond to a Copyright Takedown Notice?

MARK TERRY, ESQ.

“I just received a copyright takedown notice. What do I do?” As a Board-Certified Specialist in Intellectual Property Law, this is a common question I hear—at least several times a month. Usually, the disputed item is a document or photograph being used on a client’s website, and the notice arrives with a threatening letter that warns of litigation and substantial damages.

Such a letter can frighten a law-abiding business owner who has never been involved in a lawsuit. The first step is not to panic.

First, remove the allegedly offending material as soon as possible. Even when you believe you have every right to display or use the work, remove it temporarily until you and your attorney can evaluate the situation. Better safe than sorry.

Second, determine who owns the work. The easiest way to begin is to identify where the material originated. Did it come from a stock-photo bank, another website, an employee, or an outside contractor? The answers should help establish ownership and how the material came to be used.

Third, determine whether the complaining party owns a copyright registration from the U.S. Copyright Office. A registration can identify the author and owner and may affect the types of damages available.

All original works may receive copyright protection, but registration can significantly change the remedies available to a copyright owner. When a work was not registered before infringement, a plaintiff may generally seek actual damages, such as the loss suffered by the owner or profit gained by the alleged infringer.

When a work was registered before infringement, statutory damages may be available. Under 17 U.S.C. § 504, statutory damages may range from $750 to $30,000 per infringement and may reach $150,000 per infringement when a court finds willful conduct.

Fourth, if the investigation shows that infringement likely occurred, assess the potential damages and consider making a proportional offer. The response should be guided by the strength of the ownership claim, the timing of registration, the nature of the use, and the actual financial exposure.

If the investigation shows that no infringement occurred, the response may instead explain that conclusion and the reasons supporting it.

Although receiving a copyright takedown notice can be unsettling, understanding your rights and following a disciplined process can reduce the uncertainty and put the dispute on a path toward resolution.