Uncle Mark Gets DMCA’ed

HandcuffSome of you may know about TheTarotChannel.com, a Tarot news and information site I created because, well, I’m all about the deck T. S. Elliott called "a wicked pack of cards."

This morning, that website vanished without warning. I was on the verge of submitting a trouble ticket to TypePad.com, when I found in my spam filter a notification from GoDaddy.com / Wild West Domains that my domain had been suspended as a result of GoDaddy.com having received a Digital Millennium Copyright Act (or DMCA) complaint.

HandcuffSome of you may know about TheTarotChannel.com, a Tarot news and information site I created because, well, I’m all about the deck T. S. Elliott called "a wicked pack of cards."

This morning, that website vanished without warning. I was on the verge of submitting a trouble ticket to TypePad.com, when I found in my spam filter a notification from GoDaddy.com / Wild West Domains that my domain had been suspended as a result of GoDaddy.com having received a Digital Millennium Copyright Act (or DMCA) complaint.

So, here’s the situation in a nutshell.

Each article on TheTarotChannel.com is usually accompanied by a postage stamp-sized illustration — usually a product image, photograph, or piece of clip art related to the content of the post. A recent post on people’s fear of Tarot cards was accompanied by an excerpt from a work entitled "Phobia" by an artist named Liza Phoenix, whose work I admire. While I didn’t ask for permission to use the image — and, in hindsight, that was wrong — I did credit Liza for her work, express my appreciation for it, provide a link back to her website, and encourage people to become familiar with her art.

At some point, Ms. Phoenix was alerted to the presence of the image on TheTarotChannel.com. I’m an easy guy to reach — and an admirer of hers, to boot. If the use of the image displeased her, she could have dropped me an email, asked me to remove it, and I would have complied. The entire issue could have been handled in seconds.

Instead — like someone who sues the neighbors instead of just asking them to keep their kids from stealing plums off the backyard tree — Ms. Phoenix filed a DMCA complaint with my domain name registrar. As a result, without warning me or giving me a chance to make things right, my domain name registrar yanked TheTarotChannel.com off the internet.

The information I received from GoDaddy.com, by the way, doesn’t seem to be very customer-focused. While it provides me with about a half-hour’s worth of paperwork and legal forms to fill out, it doesn’t tell me the one thing a customer wants to know: after I’ve complied with all the legal demands, how long it will take for GoDaddy.com to restore my site?

What’s the ultimate outcome of all this?

1) The integrity of Ms. Phoenix’s work, "Phobia," has been protected.

2) The image and all links to her website have been removed from the article on TheTarotChannel.com. As a result, more than 700 readers per week will no longer have the opportunity to discover, appreciate, or purchase her work.

3) Because she jumped right to a DMCA filing instead of just approaching me, I’ve been converted from an ardent admirer to an anti-fan. I just can’t enjoy or appreciate her work any more.

I’m not sure how that’s a "win" for Ms. Phoenix, but there you go.

Meantime, after ten years of doing business with them, I’ve been soured on a company I’ve recommended to dozens of friends and clients: ez-domainregistration.com. Turns out, despite the fact their web site never references GoDaddy.com, that they’re GoDaddy.com operating behind a mask. Letters from their customer service department today made it clear to me that:

– they will continue to yank down any site that gets a DMCA complaint filed against it, whether that filing is legitimate or not

– they will not offer customers the opportunity to make things right *before* the site is yanked

– they will not tell customers how long it will take them to restore the site

That doesn’t strike me as a customer-friendly policy, so I’ll now be taking on the considerable time and expense involved in shifting a dozen domain names away from this registrar to one that’s less reactionary and more customer-focused.

What a mess.

PS: Because GoDaddy.com’s notification included a copy of Ms. Phoenix’s personal email address and home phone number (!), I should mention that I’ve sent a letter of apology to Ms. Phoenix, repenting for having used her work without permission. I’ve not yet received a reply.

Mark McElroy

I'm a husband, mystic, writer, media producer, creative director, tinkerer, blogger, reader, gadget lover, and pizza fiend.

5 comments

  • Hi Mark,

    This is Liza Phoenix. First off I would like to say that I am sorry that access to your entire site was denied. That was certainly not my intention, the DMCA notice was for the instances of the one image only.

    Unfortunately, since your website is a redirect, GoDaddy had to disable the entire site in order to deny access to the image.

    While this is unfortunate, I do believe that it’s appropriate. There is a clear link to a copyright notice on every page of my web site which explains that it is illegal to use my images without permission and states “To request image use permission use the Contact Form.” I am an easy person to get in touch with and I would have given you permission to use the image had you asked first and given proper credit to the image. This whole thing could have been avoided had you taken a few seconds to contact me.

    Instead – you decided to go ahead and use my content without my permission. You not only ignored the copyright statement, but you used a graphics program to crop my name and the copyright symbol off of my artwork, and when I viewed your website there was no mention of my name and there was no link to my website. The cached version of your site is still available in Google, I checked it again just to be sureand the credit does not appear anywhere that I can see.

    Another unfortunate reality is that you are not the only person who does things like this and while it may take only a few minutes to email you and ask that you please stop using my artwork without permission, it would take much, much longer to hunt down every person, email them, then go back to each and every website to see if they cared enough to comply with my requests.

    Surely, you can see that it makes more sense for webmasters to ask artists for permission first, rather than put the burden on the artists after the fact.

    I hope you understand that I did not send the DMCA notice out of anger and it was not sent as a personal attack against you or your website. It was sent in an effort to protect my work so that I can continue to make a living as an artist.

    Sincerely,Liza Phoenix

  • Hi, Liza. It’s nice to hear from you. I wish you had contacted me earlier!

    Liza wrote: When I viewed your website there was no mention of my name and there was no link to my website. The cached version of your site is still available in Google, I checked it again just to be sure and the credit does not appear anywhere that I can see.

    Mark notes: Actually, Liza, Google’s cache refers only to the front page of TheTarotChannel.com, where the first two or three articles of any post are displayed. The cache does not contain the page featuring the entire article.

    This was the page address:http://www.thetarotchannel.com/2007/05/getting_past_ta.html

    Here’s a copy of the last paragraph of the article, before I edited its content this morning:

    “Editor’s Note: The great “Phobia” image seen on the header of this article is excerpted from the work of Liza Phoenix, whose online gallery of Fantasy Art is well worth a virtual visit. Hey — why hasn’t Liza done a Tarot deck!?!”

    The note included links to your site — probably the very same links that led you to discover the use of the image in the first place.

    I’ve already apologized for using the image without your permission, and I’ve removed all reference to you and your work from that article on TheTarotChannel.com. I’m not sure what else I can do.

    Meantime, my website is still off the air. It has been down for more than 12 hours. Customer service tells me there’s no way anyone can tell me when it will be back up, even though I complied with the DMCA immediately upon receiving it.

    Lisa wrote: The DMCA was sent in an effort to protect my work so that I can continue to make a living as an artist.

    Mark notes: I understand that. Can you also understand how my referencing your work, encouraging people to go see more of it, and directing more than 700 readers to visit your site might *help* you make a living as an artist?

    There’s a little difference between someone trying to steal or repurpose your work … and an admirer trying to turn a an entire community on to your work. Ah, well. The deed is done, and your work is safe.

    Again: I apologize for using your work in a way that displeased you. You have my word that I won’t sample, refer to, link to, recommend, or encourage others to find out more about you or your work in the future.

  • I’m a regular reader of this site, and I just wanted to say that I read the article after it was originally posted and before the site was yanked, and I specifically recall that it did indeed contain the passage Mark quotes, crediting the artist and providing a link to her site.

  • Hi Mark,

    Yes, of course I looked at more than just the front page, I looked at the entire article and I did not see any links to my site.

    I just checked my weblogs and indeed there were 3 clicks through from your site to mine. So maybe there were links somewhere, but if you are getting 700 visitors a day to that article and it was up for several days and only 3 people clicked the link then it was obviously not in a very prominent place. Plus I’m sure at least one of those clicks was you testing the link.

    But that is all beside the point anyway, the point is that you are not supposed to take artwork and use it without permission.

    I never asked for anything more than what you ask for on your own site, to quote you word for word “…copying or re-using this material without permission is stealing, pure and simple. You can avoid some really nasty karma (and possible legal action) by doing the right thing … and asking before taking.”

    I accept your apology of course, but I don’t believe that I am being unreasonable in any way. In fact, I only want the exact same thing that you want “ask before taking”.

    I also do not believe that you were trying to help me by using my image. If you actually had respect for my work and wanted to help me then why did you crop my name and the copyright symbol off of it? Why didn’t you use my contact form to ask permission first? And why didn’t you place the links to my site in a more prominent place?

    Whatever, you don’t have to answer those questions, I probably won’t have time to come back here again anyway. So no hard feelings, chalk it up to live and learn, and I hope your site comes back online soon and you get lots of money and traffic.

    Very truly yours,Liza Phoenix

  • It’s regrettable that Liza “probably won’t have time to come back here again anyway.” (She’s probably too busy filing DMCA complaints against other websites.)

    That being the case, dear reader, I’ll just address my comments to you … because there are some things that need to be cleared up.

    Liza writes: I never asked for anything more than what you ask for on your own site, to quote you word for word “…copying or re-using this material without permission is stealing, pure and simple.”

    Mark notes: Ms. Phoenix conveniently neglects the prior paragraph from our copyright policy at TheTarotChannel.com, which states, “Linking to our pages delights us. Incorporating a short quote or two in your own article is cool, too, as long as you let folks know where you got the material.” In other words: unlike Ms. Phoenix, we support fair use of our material, as long as credit and links are given, and do not require permission for such uses.

    Liza writes: If you actually had respect for my work and wanted to help me then why did you crop my name and the copyright symbol off of it?

    Mark notes: If my site were online (update: twenty-four hours later, the site is finally accessible again!), I could direct Liza to look at any number of articles posted over the past three months.

    At TheTarotChannel.com, we regularly post little postage stamp-sized graphics into the headers of the articles we publish. Most of the time, these aren’t entire photos or graphics; instead, they’re tiny square “excerpts” of a graphic — like seeing part of a picture through a keyhole.

    Liza has concluded that I deliberately cut her name and copyright notice off the image I used. That simply isn’t the case, but I doubt that I can ever convince her otherwise.

    Liza wrote: Why didn’t you use my contact form to ask permission first?

    Mark notes: That should have been done. It wasn’t. I have apologized for this. I’ve removed the links. My site’s been down for more than 15 hours as punishment. I’m not sure what else I can do for you here, Liza. What more do you want?

    Liza wrote: And why didn’t you place the links to my site in a more prominent place?

    Mark notes: The links were in the article, and visible enough that many other visitors to the site remember them. Again, I’m not sure what more I can do. What more do you want?

    Lessons learned:

    – I used one of Liza’s graphics without permission. I shouldn’t have. I apologize. (Again.)

    – Liza was entirely within her rights to file a DMCA complaint against me … but it’s a shame that was her first step, because this all could have been handled with a short, simple email directly to me.

    – Before filing a DMCA complaint, I, personally, would take intent into consideration. In this case, I didn’t use a portion of Liza’s image with an intent to steal it, repurpose it, remix it, claim it as my own, or use it for my own personal gain. (Had I meant to steal it, or if I had taken it with ill intent, why would I have been so careful to give Liza credit for the work and provide links back to her site?)

    Note to my fans: if you want to take a few paragraphs from one of my books, slap ’em on a website, clearly identify them as mine, and encourage your readers to visit my website for more … PLEASE DO. I’ll appreciate the coverage. I won’t file a DMCA against you.

    – Web site owners need to find out how their domain name registrars are going to handle DMCA complaints. A company (like GoDaddy.com) that yanks an entire website just because someone *asserts* a DMCA violation isn’t worth doing business with.

Who Wrote This?

Mark McElroy

I'm a husband, mystic, writer, media producer, creative director, tinkerer, blogger, reader, gadget lover, and pizza fiend.

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