Saturday, October 31, 2020
 

Villain or Victim? Public Mockery Follows Photographer Suing Instagram


By Talia Kosh, Esq.

According to an article on Torrent Freak, Jennifer Rondinelli Reilly sued Instagram last March for failing to remove unauthorized uses of her image-one in particular-featuring red lips and a microphone. [1]

Photographer Reilly sent three takedown notices to Instagram over three consecutive days, but Instagram never responded to her and had still not disabled access or removed the infringements time the lawsuit was filed.

Another article written on Reilly’s lawsuit asks, “when does protecting your personal copyright turn into trolling?”[2]  The reader comment section following Torrent Freak’s article on Reilly and Instagram contained 60+ comments, many of which complain that Reilly is making a big fuss over nothing, and wondering why would Reilly go to so much trouble over non-commercial uses, believing she gave Instagram little time to respond.  A few others also though her trolling for money through litigation.

One reader, in particular, created a new noun in her honor:

“Copybait
noun
1.) Original content created with the intent to entice its unlicensed use in order to manufacture the circumstances to bring legal action for monetary gain.”

Such comments are seemingly bolstered by the fact that Reilly recently sued several other OSPs, including Twitter, for the same failure to takedown the same image. In the case of the infringements of her image on Twitter, some of these alleged infringements seemed valid, while others were takedown notices regarding tweeted links to Reilly’s image from her own website.

This is where some of her motives become questionable, as generally, courts agree that linking to another’s website does not constitute copyright infringement.  And why, as an artist, would you object to someone on social media giving you free advertising, tweeting about your image and linking to your website?

However, even if Reilly’s attitude toward ownership might be extremely irritating, it’s actually a necessary evil. And here’s why:

To recap, under the Digital Millennium Copyright Act (DMCA), web hosts and online service providers (“OSPs”), such as Instagram, are protected from liability for copyright infringement by users, so long as they meet the requirements of the law and remove infringements after notification within a reasonable amount of time.[3]

In Instagram’s FAQs section on Copyright, it states that Instagram does comply with the DMCA and provides their own takedown notice form where takedown requests must provide links to the infringing work. After receiving in this form all the information it needs to respond, Instagram should be able to follow through in 7-10 days. It seems that the generally acceptable response time to takedown notices by OSPs is anywhere from 48 hours to a week.[4] Yes, there remains a question of what is an “expeditious” amount of time to respond, as required by law:  Reilly sent 3 takedowns in three days, but she waited almost two months to file suit against Instagram, and Instagram had not yet removed all of the infringing content at the time of the suit. [5]

Reilly alleges to have sent “dozens of takedown notices” before filing suit. All that Instagram had to do in order to avoid suit was to remove the allegedly infringing content and give the infringer a right to respond with a counter-notice.[6] They are then absolved of any wrongdoing. But they didn’t do this simple thing they are required by law to do.

And this is the trouble with OSPs, at large. Many folks filing DMCA takedown notices sometimes get no response at all, but the DMCA is the only route that a creative has to demand that service providers takedown their images outside of litigation.

While the process of sending a DMCA notice is clear, how it is dealt with by service providers varies greatly. Ultimately, if you don’t receive a response to your takedown notice from these large online service providers like Facebook, Instagram, Twitter, YouTube-there’s no phone number, often no email, no human you can actually call and talk to.

Yes, this takedown procedure puts a lot of power in the hands of individuals to remove content that they allege is infringing without much proof, and often no review from the OSP of whether the use is a “fair use.”(YouTube is now considering working to change this).[7] However, this, theoretically, can be cured by filing a counter-notice that allows the content to be restored within in 10 days. Then it is up to the  copyright holder to file suit.

This sometimes goes awry, for example, on YouTube, when content is restored after a counter-notice is filed, but then the YouTube channel loses their view count, or ability to monetize the content after claiming fair use.  No system can keep up perfectly with our digital world, but the DMCA is a decent approach that each OSP can (and should) attempt to make even better by diligently reviewing takedown notices, exceptions for fair uses, and ensuring the removed content is actually restored after a counter-notice is filed. It would be refreshing to see these OSPs not only complying with the law but beginning to go a little above and beyond what is required by law. It can only save them money, reputation and time, in the big picture.

Other readers were upset with Reilly for suing because there was no commercial gain by the infringers for posting the image on Instagram, yet Reilly can go after Instagram for statutory damages. The benefit of statutory damages is that, so long as you register your copyright within three months of publication, you don’t have to prove lost profits or actual damages, but may elect statutory damages-that is, damages set by law. Again, not a perfect system, but it can be very difficult to prove actual damages.  If a photographer had no access to statutory damages and had to prove actual damages in every case, in order to maintain control over her work, the consequence would be a much more unfair system for creatives.  Statutory damages put creatives on more of equal footing and give them the ability to get their attorney’s fees covered.

It feels “wrong” that Reilly is suing Instagram, perhaps, in part, because of the love for what Instagram represents- it’s a free, creative space with no (current) obvious commercial gain- but these OSPs have no other incentive to comply with the law if no one holds their feet to the fire. If irritatingly zealous photographers like Reilly do not step up and show OSPs that some creators will actually take that next step to court, when there is no response to their takedown notice, then the system doesn’t work.  Most OSPs assume creators will abandon their takedowns and not file suit against them. If nothing else, after Reilly’s lawsuit, Instagram will make certain they have a quicker response mechanism in place; and that’s a good thing for creators.

 

Notes:


[1] Van der Sar, Ernesto, “Instagram Sued For Failing to Remove Copyrighted Photo.” Torrent Freak (March 30, 2016).

[2] Woods, Ben, “Instasued: When does protecting your personal copyright turn into trolling?” The Next Web (march 31, 2015).

[3] The “DMCA take down notice” is a creature of Title II of the Digital Millennium Copyright Act (“DMCA”). It added Section 512 to Title 17 of the United States Code (Copyright), which exempts certain online service providers (“OSPs” or sometimes “ISPs”) from liability for copyright infringing acts by its users, provided it meets certain conditions (such as being responsive to copyright holders when given notice of infringement on the network the OSP controls).

[4] N.A. Plagarism Today, “How Long Should a DMCA Notice Take.” (December 5, 2008).

[5] In Section 512(c), it states the providers should work “expeditiously” to remove infringing material after receiving a DMCA no takedown notice. There are no specific number of days required, leaving it up to OSPs to determine what “expeditious” means.

[6] Liu, Ken, “The DMCA Takedown Notice Demystified.” (March 2013).

[7] Gabriel, Brian, “Internet Creators Are Pressuring Youtube to Respect Fair Use Laws.” Cartoon Brew (February 23, 2016).


***

Talia Kosh holds a J.D. from Loyola University New Orleans College of Law and an LLM. in International Law from American University. Talia practices law in Santa Fe with The Bennett Law Group and is Founder and President of New Mexico Lawyers for the Arts, counseling and educating artists on a wide variety of legal issues. Talia also serves on several nonprofit boards, as well as the Governor’s Counsel of Film and Media Industries, and as past Chair and board member of the Intellectual Property Section of the New Mexico Bar . Talia also teaches at Santa Fe Community College and University of New Mexico’s Continuing Education Program. She received the Santa Fe Mayor’s Award for Excellence in the Arts in 2014. The views expressed by Talia are hers and not those of any entity and/or organization.
 

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