Article

Section 01

A notice is a statement, not a reflex

When an unauthorised copy of a photograph appears online, the quickest response is often a takedown notice sent to whoever seems responsible. Speed has a cost. A notice is a formal statement made by or for the rights holder: it asserts that a specific work is protected, that the sender is entitled to act and that a specific use is not authorised. Under US law, part of that statement is made under penalty of perjury.

A notice built on a wrong assumption can be ignored, can be answered by a counter-notice and, in some cases, can expose the sender to liability.

The checks described here come before any notice is drafted. They answer four questions in a fixed order: who owns the work and who may act for the owner; whether the use might already be licensed; who should receive a notice, and in what sequence; and what the notice must contain to be acted on.

The order matters because each answer depends on the previous one. There is no point identifying a hosting provider for a use that turns out to be licensed, and no notice is sound if the person signing it has no authority to do so.

Section 02

Ownership and authority to act

Under 17 U.S.C. § 201, copyright vests initially in the author, which for a photograph usually means the photographer. Two situations change this. If the photograph was a work made for hire, for example taken by an employee within the scope of employment, the employer is treated as the author. If rights were transferred, § 204 requires a written instrument signed by the owner. A verbal arrangement, or an assumption about who “owns the pictures”, is not enough to move an exclusive right from one person to another.

References17 U.S.C. §§ 201, 204

In countries that follow the Berne Convention, protection does not depend on any formality: art. 5(2) of the Convention provides that the enjoyment and exercise of rights are not subject to registration or deposit, and national treatment means foreign authors are protected on the same footing as nationals. In most countries, across Europe, Asia, Africa and the Americas, the author’s right arises from creation itself, and some national laws also protect simple photographs that are not original enough to qualify as works. The question to ask before a notice is therefore not “is the photograph registered?” but “who holds the right, and can that be shown?”

ReferencesBerne Convention

Authority is a separate point. A notice may be sent by the owner or by someone authorised to act on the owner’s behalf. An agency, a stock library or a representative such as Atlantic must be able to show where that authority comes from and what it covers.

• Who created the photograph, and when and where was it first published?
• Was it made in employment, or under an arrangement that could make it a work made for hire?
• Have any rights been assigned, or granted exclusively to an agency or a client?
• Does the mandate cover the territory and the type of action being considered?

Before any action, Atlantic verifies the identity of the rights holder, the ownership or licence chain and the scope of the mandate. Each mandate it accepts produces an authority certificate with a public verification address. A host, an operator or their counsel can check it independently, which answers in advance the objection that the sender has no authority to act.

Section 03

Whether a licence may exist

The most common reason a notice goes wrong is not a legal defect but an unchecked fact: the user had a licence. Photographs circulate through stock libraries, agencies, press services, former clients and resellers, and the rights holder does not always know every channel through which a licence could have been granted. A credit naming a stock agency, a contributor record on an image bank or an editorial context such as a news article can each point to a licence the photographer never signed personally.

Before any letter, Atlantic reviews each occurrence for such signs. When a licence is plausible, the first step is to ask for the licence record, not to escalate. Uses that are clearly covered are closed without any claim. Licensing review has its own page; for the purposes of a notice, the point is simple: no notice should be prepared until the reasonable possibility of a licence has been considered and, where relevant, put to the user.

Some explanations users commonly give are not licences, and the review must separate them from genuine records.

• Finding the image through a search engine or on a free-wallpaper site does not grant rights. Those services index or display content; they do not license it.
• Crediting the photographer is a courtesy, not permission. A credit without a licence is still an unauthorised use.
• A web designer or agency choosing the image does not change who published it. Responsibility for content chosen by a contractor depends on the jurisdiction, but the site operator is generally the party that made it public.
• The age of a photograph does not by itself end protection. Terms are long and depend on the jurisdiction.

The opposite mistake matters too. A licence that did exist may have expired, may cover print but not online use, or may have been granted to a different company. The use may then be partly authorised, and any notice must describe precisely what falls outside the licence.

Section 04

Identifying the right recipient

Notices go to different parties for different reasons, and confusing them weakens the file.

The website operator is the party that published the photograph and the only one with whom a licence or a settlement can be discussed. In Atlantic’s practice, correspondence always begins with the operator, in writing, before any third party is approached.

The hosting provider stores the content on its servers. It is the party that can act on a § 512(c) or Digital Services Act notice, because both regimes concern hosting services. Identifying it requires technical verification. The registrar that sold the domain name, the DNS provider, and a content delivery network or reverse proxy placed in front of the site are not the host of the content. A notice sent to a registrar is usually declined or redirected. A notice sent to a CDN may be passed on to the site operator, with the origin host disclosed only later, if at all. Atlantic checks where the page and the image file are actually served from and identifies the hosting provider of the content itself before a complaint is prepared.

References17 U.S.C. § 512(c) · DSA (Reg. 2022/2065)

A complaint to a host is not a complaint against the host. It concerns the host’s customer and informs the host of specific material stored on its service.

Search engines and advertising networks form a further category. A search engine can receive a removal request for results that point to the infringing page or image. An advertising network that monetises the page has its own policies on content its publishers are not entitled to use. Neither is responsible for the original publication, and neither request replaces correspondence with the operator.

• Operator: the publisher, and the party for licence questions and any settlement.
• Actual host: stores the content and can act under § 512(c) or DSA art. 16.
• Registrar, DNS provider, CDN: infrastructure, usually not the right recipient for a content notice.
• Search engines and advertising networks: separate requests, each limited to its own service.

References17 U.S.C. § 512(c) · DSA (Reg. 2022/2065)

Section 05

The six elements of a § 512(c)(3) notice

17 U.S.C. § 512(c) gives US hosting providers a safe harbour from monetary liability for material stored at the direction of users, provided, among other conditions, that they act expeditiously to remove or disable access to it once they receive a proper notice. Section 512(c)(3) lists what that notice must contain. A notice that substantially complies gives the host what it needs to act; one that leaves elements out may be disregarded.

References17 U.S.C. § 512(c)

• A physical or electronic signature of a person authorised to act on behalf of the owner of the exclusive right.
• Identification of the copyrighted work claimed to be infringed or, where several works on one site are covered by a single notice, a representative list.
• Identification of the material claimed to be infringing, with information reasonably sufficient to allow the provider to locate it.
• Information reasonably sufficient to allow the provider to contact the complaining party, such as an address, telephone number and e-mail address.
• A statement that the complaining party has a good-faith belief that the use is not authorised by the copyright owner, its agent or the law.
• A statement that the information in the notice is accurate and, under penalty of perjury, that the complaining party is authorised to act on behalf of the owner.

In practice, the third element is where many notices fall short. “Our photograph is on your customer’s website” does not allow a host to find anything. The notice should give the full page URL and the direct image URL, say where the photograph appears on the page, and allow comparison with the original. Atlantic’s complaints include the evidence report for each occurrence: page URL, image URL, date and time of capture, full-page screenshot and the SHA-256 fingerprint of each evidence file.

Registration with the US Copyright Office is not one of the six elements. The statute does not make it a condition of a valid notice. Registration becomes relevant later, if legal action is considered, as discussed in section 8.

Section 06

What the Digital Services Act asks of a notice

For hosting services offered in the European Union, Regulation (EU) 2022/2065, the Digital Services Act, sets out notice and action mechanisms in art. 16. Hosting providers must allow anyone to notify them of specific items of information that the sender considers illegal. This includes material that infringes copyright under the national laws implementing Directive 2001/29/EC, where reproduction (art. 2) and communication to the public (art. 3) are exclusive rights of the author.

ReferencesDSA (Reg. 2022/2065) · Dir. 2001/29/EC

Art. 16 lists the elements a notice should contain.

• A sufficiently substantiated explanation of the reasons why the sender considers the information illegal.
• A clear indication of the exact electronic location of the information, such as the exact URL or URLs.
• The name and e-mail address of the individual or entity submitting the notice.
• A statement confirming the sender’s good-faith belief that the information and allegations it contains are accurate and complete.

The standard behind these elements is practical: the notice must allow a diligent provider to identify the illegality without a detailed legal examination. A notice that meets it is treated as giving the provider actual knowledge. Under art. 6, a host loses its liability exemption if, having actual knowledge of illegal content, it does not act expeditiously to remove it or disable access to it. The DSA does not decide whether a particular use infringes; that remains a matter for copyright law and, in a dispute, for the courts.

ReferencesDSA (Reg. 2022/2065)

A carefully built file usually satisfies both regimes at once. Atlantic prepares host complaints with the elements of § 512(c)(3) or of the DSA, depending on where the host is established and how it receives notices, and attaches the evidence report and the authority certificate in either case.

References17 U.S.C. § 512(c)(3) · DSA (Reg. 2022/2065)

Section 07

Good faith, accuracy and § 512(f)

Both the US and the EU texts require the sender to state a good-faith belief. That statement is not a formality. Under 17 U.S.C. § 512(f), a person who knowingly and materially misrepresents in a notice that material is infringing, or in a counter-notice that material was removed by mistake, can be liable for the damages, including costs and attorney’s fees, suffered by those harmed by the misrepresentation. The provision applies to both sides.

References17 U.S.C. § 512(f)

Good faith in this sense means the sender has actually checked what the notice asserts. The checks in the previous sections are what support the statement.

• The right is held by the owner named in the notice, and the signatory is authorised to act.
• The use was reviewed for signs of a licence, and none was found, or the licence claimed was examined and does not cover the use.
• The context was considered for exceptions the law may allow, including fair use under 17 U.S.C. § 107, which is decided case by case on four factors and cannot be ruled out by assumption.
• The URLs and descriptions are exact and refer to the material actually at issue.

References17 U.S.C. § 107

Users often raise fair use. Whether it applies depends on the purpose and character of the use, the nature of the work, the amount used and the effect on the market for the photograph. A commercial website using a full photograph as decoration is not in the same position as a critical review reproducing a detail. Outside the United States, exceptions generally take the form of specific cases listed by statute, and fair use as such does not apply in most jurisdictions. The sender is expected to think about the question before sending, not to treat every use as obviously infringing.

Accuracy also means restraint in wording. A notice that overstates the facts, describes a proposed fee as a debt or presents the sender’s view as a decision can be quoted against the sender later. Atlantic’s notices state what was found, where and when, which right is concerned and what is requested, and nothing more.

Section 08

Counter-notices under § 512(g) and what follows

When a US host removes material on the basis of a notice, the user may send a counter-notice under 17 U.S.C. § 512(g). It must include the user’s signature, identification of the material and its location before removal, a statement under penalty of perjury that the user believes in good faith that the material was removed as a result of mistake or misidentification, the user’s contact details and consent to the jurisdiction of a federal district court.

References17 U.S.C. § 512(g)

Once it has a valid counter-notice, the host forwards it to the sender and may restore the material after 10 to 14 business days, unless the sender informs the host within that period that an action has been filed seeking a court order against the user. The host does not decide who is right; the dispute stays with the parties and, if needed, a court.

This has consequences worth weighing before the first notice. If the photograph is a United States work, 17 U.S.C. § 411(a) generally requires registration before an infringement action can be filed; foreign works are exempt from that requirement. Under § 412, statutory damages and attorney’s fees generally require timely registration, and under § 410(c), registration within five years of publication is prima facie evidence of validity. None of this affects the validity of the notice, but it affects what can realistically follow a counter-notice. A file that anticipates the question is in a better position than one that discovers it during the waiting period.

References17 U.S.C. §§ 411(a), 412, 410(c)

The Copyright Claims Board, created by the CASE Act under 17 U.S.C. Chapter 15, is a voluntary forum for smaller claims. The respondent may opt out, so it is not a substitute for court in every case. Atlantic does not file actions or represent anyone in proceedings. When a counter-notice or any other development calls for legal action and the matter is still unresolved, the complete file may be transmitted to qualified counsel in the relevant jurisdiction. That decision is taken by a person on the documented file, and the rights holder is informed first; counsel then decides how to proceed.

ReferencesCopyright Claims Board

A counter-notice is also information. It identifies the user, usually gives an address and sets out the user’s position in writing. That position is added to the Case File and examined on its merits: if it raises a licence, the licence record is requested; if it alleges misidentification, the evidence is checked again.

Section 09

Removal does not settle the use already made

A host that removes or disables access to a photograph acts on future display. It does not address the period during which the photograph was published without authorisation, and it is neither a licence, nor a settlement, nor a finding in either direction. The same applies when the operator removes the image itself after receiving a letter.

This is the point users most often misunderstand. “I removed it” ends the ongoing use, which matters and is recorded in the file. It does not erase the reproduction and public display that already took place. Under 17 U.S.C. § 106, under arts. 2 and 3 of Directive 2001/29/EC and under comparable provisions of other national laws, those acts require the rights holder’s consent. Whether and how the earlier use is compensated is a matter for discussion with the operator and, failing agreement, for the law of the relevant jurisdiction, for example § 504 in the United States, the national rules implementing Directive 2004/48/EC in the EU or the equivalent rules of other national laws.

References17 U.S.C. §§ 106, 504 · Dir. 2001/29/EC · Dir. 2004/48/EC

For that reason, Atlantic treats a host’s confirmation of removal as closing the notice to the host, not the case. The host is told that its part is complete. The matter then continues directly with the operator toward an amicable resolution, either through a valid licence or other authorisation being shown or, failing that, through an agreed settlement recorded in the Case File. A demonstrated identification error is corrected, not settled.

This is also why evidence is captured before any notice. Once the page is gone, the capture made at the time, with its date, screenshot and SHA-256 fingerprint, is what shows that the use existed and what it looked like.

Section 10

When a host asks for a formal notice or a court order

Some hosts reply to a complaint by asking for something more formal: a notice on letterhead, a PDF with a handwritten signature, a particular wording or the use of their own submission channel. Section 512(c)(3) accepts a physical or electronic signature, so a handwritten signature is not a statutory requirement. It is nonetheless a reasonable request, and meeting it removes an easy reason for delay. Atlantic sends complaints by e-mail from its platform to the host’s designated abuse or legal address and does not submit them through third-party web forms. On request, Atlantic issues a formal DMCA notice with a handwritten signature, containing the same elements and the same evidence as the original complaint. The form changes; the substance does not.

Other replies go further and ask for a court order, a judgment or a document validated by a lawyer. Notice and action procedures exist precisely so that a host can act on a substantiated notice without a court order. If the matter had reached the stage of proceedings, a notice to the host would not be needed. Legal documents, when they become necessary, are exchanged between lawyers. Counsel for the operator can contact Atlantic through the platform’s dedicated channel for counsel, the request centre, where documents are exchanged between professionals.

A host or operator may also ask for proof of ownership or authority. In most cases those elements were already provided: in the notice, in the attached evidence report, in the authority certificate with its public verification address and in the secure case portal indicated in the correspondence. The reply should point to them precisely rather than restate them.

The objection “you are not a law firm” is accurate and is not a defect. Atlantic does not give legal advice and does not represent anyone in court. Its role is to verify authority, document the use, conduct the correspondence and, where necessary, prepare the file for counsel. Neither § 512(c)(3) nor DSA art. 16 requires a notice to come from a lawyer. Whatever the form, the host decides under its own policies whether to act, and its decision does not close the matter with the operator.

References17 U.S.C. § 512(c)(3) · DSA (Reg. 2022/2065)

Section 11

How Atlantic sequences notices and withdraws them

Atlantic does not begin with a takedown notice. Each matter opens a Case File with a reference of the form AID-YYYY-NNNNN, and the steps follow a fixed order.

• Review: before any letter, the occurrence is checked for signs of a licence. Clearly covered uses are closed without a claim; a plausible licence leads to a request for the licence record.
• Operator letters: a graduated series of up to seven letters with dated deadlines, from a first notice to a final pre-contentious warning, each with an evidence PDF. The operator has access to a secure case portal where it can see the evidence summary, reply, upload a licence, invoice or other proof, or settle.
• Holds: a reply, a licence claim or a request for time puts the matter on hold until a stated date. Nothing is sent during a hold.
• Host complaint: if the operator does not respond, a signed complaint goes to the actual hosting provider of the content, with the elements of § 512(c)(3) or of the DSA and the evidence report. On request, a formal notice with a handwritten signature follows.
• Search engines and advertising networks: removal requests to search engines, and notices to advertising networks that monetise the page, may accompany the host complaint.
• Last-resort letter: if the matter remains unresolved, the operator is informed that the file is about to be transmitted to counsel. If the matter is still unresolved, the complete file, with summary, evidence index and fingerprints, chronology, correspondence and authority documents, may be handed to qualified counsel in the relevant jurisdiction. That decision is taken by a person on the documented file, and the rights holder is informed first.

References17 U.S.C. § 512(c)(3) · DSA (Reg. 2022/2065)

A Case File is closed only when a valid licence or other authorisation is shown or, failing that, when an amicable settlement is reached and recorded. A demonstrated identification error is corrected, not settled. At that point, Atlantic withdraws the notices it sent to hosts, search engines or advertising networks, so that none of them keeps acting on a resolved matter. Where a host was contacted, the operator may forward Atlantic’s closing reply to it so that the host also treats the matter as resolved.

Throughout, Atlantic publishes nothing about recipients, does not contact a recipient’s clients and keeps settlement discussions confidential. Rights holders who want a use examined can submit it through the platform. Verification of authority and the licence review come first, and a notice is prepared only when the file supports it.