Did you know that copyright owners don’t actually need to register their copyright with the US Copyright Office? Many do so of course because they want to have that formal record, but in fact everything that someone creates is automatically owned by them under copyright law. This includes digital works from film to audio, photos to images, and even written works like blogs and computer code. When someone wants to sell something based on an original work, there’s a lot to consider so they don’t get sued by the original owner. Let’s discuss avoiding DMCAs when selling online!
What Is A DMCA Notice?
The DMCA is the Digital Millennium Copyright Act, which was made a law in 1998. This law allows the companies giving you internet access to avoid being held responsible for some of the things you might do online involving copyright. The way they stay out of trouble is by quickly blocking access to your websites, making your online access more difficult or otherwise preventing you from selling products online which infringe on someone’s copyright.
Copyright owners generally hold the rights to 1) sell their thing, 2) display the thing for sale, 3) create more of the original thing and 4) create things based on the original. Any or all of these rights can be given, licensed or sold, including making someone else the temporary or permanent copyright holder.
Infringing on someone’s copyright means selling, displaying or creating their thing without the copyright owner’s permission and when not protected by fair use. The Berne Convention protects the works made by people all around the world, not just the US. Also remember that copyright owners will often have many forms of evidence they can use in court later to show they first created the thing, which is why they don’t actually need to formally register.
When you get a DMCA notice, also known as a DMCA Takedown, this means your Internet Service Provider (ISP) has pulled content from the platform because a copyright owner or their representative saw your content and asked them to do so. Owners have a strong financial incentive to try and do this for everything they see, including content that should be protected by fair use, so DMCA notices have been sent for content that is only assumed to be or potentially infringing.
Why Does The DMCA Matter?
Infringing on someone’s copyright when you don’t have permission or fair use is illegal. Any copyright case could result in large fines and penalties. Some platforms also outline various penalties in their Terms of Service for those found to be infringing on copyright, and you certainly don’t want your work there being made more difficult.
If you don’t comply or attempt to continue selling the item, fines for copyright infringement range from hundreds to thousands of dollars, sometimes for each infringement. Being sued can mean making no profit on things you sell. Even if that loss is temporary, getting sued can make your reputation as a business look so bad that people stop coming to you.
Sometimes you’ll think you’re okay to sell something because you got permission or a license, but there is a small danger here that you didn’t go to the actual copyright owner. In such a case you can blame the person who falsely claimed to be the owner, but you would still have to be in court to do so.
How To Avoid DMCAs And Getting Sued
1) Get permission to sell the thing. There’s often no harm in asking, and some owners will be happy to give you permission for any number of reasons, such as images they can’t make money from and want to see spread widely. This might look like a signed statement that says: “I am the owner of rights to [copyrighted work’s full title] and authorize its display and sale on the [name of website] website located at [URL of site] for a period of [length of time]”.
2) Sell through normal channels from a licensed manufacturer or distributor. Consider asking your supplier for written proof that they are authorized by the copyright owner to distribute the item. Reselling products that are copyrighted or include copyrighted parts is fine, but you can’t claim they are yours. What you want is a license to display and sell the thing as a 3rd party seller, which is just another way of saying you have the owner’s permission.
3) Sell things based on the state or nature of their copyright. For example, consider works that have become part of public domain. When the copyright for something has expired or been forfeited, anyone can use that thing. Or look for the Creative Commons (CC) license, which allows secondary creators to use an original work for their own by following certain rules. Some CC licenses allow something to be sold as long as you credit the original owner, while others don’t, so you have to read the license and find out. Remember some people will claim a CC license on works they didn’t actually create, and your
item could get in trouble when the original owner finds out.
4) Consider whether you meet fair use principles, though these can still be argued in courts. Reproducing something for the purpose of criticism, reporting news, research and teaching have all been past examples of fair use. What matters is how the original work is used, how much was used from the whole work, and how your use will affect the original work.
For Extra Safety
Include info and policies for the items you sell, such as a refund policy Even when you don’t need to have one or your policy will just be that you don’t allow refunds, mentioning this policy will save you from people who want a refund for some reason and get angry enough to sue. If your policy is clearly stated, they’re going to have a hard time with that. The same can be said for posting your average shipping times, which hurts less than most sellers believe.
Get business insurance for your store. The most general coverage is known as the Business Owner Policy (BOP) which usually includes legal expenses when sued or income protection if your operations become stopped. If you worry about getting hacked or one of your products being involved in someone’s death, there are additional forms of insurance to add on.
Don’t assume something you find online isn’t protected by copyright because you don’t see a copyright ( © ) sign. Remember that nothing found online is safe to sell unless you see a statement clearly saying otherwise. Everything that someone created is automatically protected, even after they post the work online for all to see, and only they can give permission for you to display and sell the thing or products based on the thing.
Read the license to see what is covered if you want to create something from a licensed work, even from a work you paid for. There may be special rules and exceptions which could prevent you from displaying or selling something in the way you wanted, just as there could be loopholes which allow you to do all of that if you follow through on them.
Take all complaints about copyright infringement seriously and remove the item(s) from your store. If you end up getting into trouble, this one action can significantly lower the costs you pay because you are showing you took the infringement seriously. Only when the item is gone should you spend any time to 1) research who complained and why, 2) get proof from them of their copyright ownership, 3) show them your fair use argument or permission to sell, or 4) ask a copyright lawyer for their opinion. Returning the item to your store should only be done when you are sure you are safe to do so.
Perhaps in the best case, your store would only sell original products that no one else has. But you can’t always do that. Whether your online store resells the most modern items as a licensed distributor or has permission to sell old products due to when and how their copyright was written, you needs to consider DMCA notices and the potential to be sued. Again, if you want to display and sell something that allows you to do so, be sure to mention the license which allows this and how you are allowed to do so. Otherwise you could be shut down, so think ahead and avoid that disaster!