I need help please! We have a celebrity image gallery site where registered members can upload their own images and then sell posters, photos, mousepads, etc of them. If they are claimed to infridge anyone's intellectual property, we ask the complaintant to provide the copyright registered number and if he does, we delete the images from the site (according to DMCA). Recently we were contacted by a photo agency, they claim they do not have to provide anything as "Photo agencies like .... generate thousands of images daily and are thus protected under the Berne copyright convention (to which the USA abides and to which the DMCA obeys) stating that every creative work is copyrighted the moment it is fixed in tangible form (i.e. the moment it is published). So do I have to believe their word and delete my members' images? How can I protect my members' rights then?
Forget about the DCMA for a minute. Do you think your members actually have rights to most of the images they upload? If you don't then better start to comply. If you really think your members are the owners, then you need to ask yourself are you making enough money to fight this. Basically, I would assume your members do not have rights to the images they upload. If that is the case you will end up losing under any set of laws.
Well, I just don't see the point. Plenty of websites are based on DMCA (let's take Cafepress, etc)... So does it work or not? I can and I want to fight my members' rights but I have first to find out if I am right or not. No one is guilty until his guilt is proved, so why do I have to think my members are guilty even without their guilt being proved. Online photo galleries refuse to provide any proofs (under the Berne copyright convention), but can my members be blamed by anyone even when that anyone provides no documents to support his words?
They are correct. Every creative work is copyrighted the moment it is fixed in tangible form. They do not have to have it formally copyrighted unless they want to engage in legal procedures (in US court). Look at the quality of the images your "users" uploaded. Chances are all of them are professional works by professional photographers, that should be the clearest sign. You'll definitely be able to spot the difference. The agency does not need to prove that they own the copyright. Once they notify you with the DMCA complaint it is up to your user to counter that complaint and proof that he/she is the owner of the copyright. The DMCA also only provides you with protection if you meet all of the following criteria: In order to qualify for safe harbor protection, an OSP must: have no knowledge of, or financial benefit from, the infringing activity provide proper notification of its policies to its subscribers set up an agent to deal with copyright complaints (registered with the US copyright office) Now, if I'm reading things correctly your site is deriving financial benefit from the infringement, thus it could easily be argued that you don't have protection under the DMCA. My advice would be to remove the images, contact the users in question and allow them to prove that they own the copyright of the images they uploaded. If they can do so then you might have a case, and need to inform the accuser of the counter-notice - otherwise you'll most likely have to engage in legal battle which could be EXTREMELY costly.