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Kendell Kelly, Esq
Kendell Kelly, Esq, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 587
Experience:  Lawyer practicing in all areas of intellectual property, including patents, trademarks, copyrights, trade secrets and new media.
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I own a web hosting company. I host a web site of my

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I own a web hosting company. I host a web site for one of my clients called thelostogle.com. Apparently the owner of this site posted some images of a guy named Aaron Tuttle.
Aaron tuttle submitted a DMCA complaint to my company asking the images to be removed (I pasted the original DMCA complaint below). I informed my client of the DMCA complaint and he responded with his own legal assessment below.
MY QUESTION
Do I need to comply with the DMCA and force the removal of the images or suspend the site or does my client have a valid counter claim in his assessment of how it should be handled?
MY CLIENTS RESPONSE
******
Thanks Todd! Appreciate it.
This Aaron Tuttle guy is a piece of work. I bet he knows he doesn't have a legit legal claim to remove the photos, so he's going this route. Very shady on his part.
Just to clarify / go over a few things...
1. TLO's right to use the photos are protected by fair use laws. This gives us protections to use the photos for parody, satire, comedy, and news purposes. If you look at the photos and the context of them, it's exactly what we are doing. Also, the fact that Tuttle is a public figure (he's been on TV and does commercials for car dealerships) strengthens our case.
2. In the 2007 case Lenz v. Universal Music Corp, the courts ruled that copyright holders must consider fair use before issuing takedown notices for content posted through DMCA. Obviously, Tuttle hasn't taken this action.
3. We have not received an official notice, email, or correspondence from Aaron Tuttle regarding the photos. He hasn't even issued a cease and desist, which would be the first step if he thought he had a legit copyright claim. I do have an attorney on retainer, B***** ***** with the Evans Davis law firm, to address these claims and handle them should they ever arise.
Thanks again for everything.
Patrick
******
ORIGINAL DMCA
***********
Attn: Copyright Agent
This is a notification of copyright infringement. The Digital
Millennium Copyright Act (DMCA) obliges search and internet providers
to investigate and respond to complaints by authors about alleged
copyright violations.
Copyright owner: Aaron Tuttle
Pursuant to 17 USC 512(c)(3)(A), this communication serves as a statement that:
I am the exclusive rights holder for the photos in question.
These exclusive rights are being violated by material available upon
your site at the URL(s) printed below. I have a good faith belief that
the use of this material in such a fashion is not authorized by the
copyright holder, the copyright holder's agent, or the law;
Under penalty of perjury in a United States court of law, I state that
the information contained in this notification is accurate, and that I
am authorized to act on the behalf of the exclusive rights holder for
the material in question;
I may be contacted by the following methods:
Physical Address:
Aaron Tuttle
16408 Big Cypress Dr
Edmond, OK 73013
Tel: ***-***-****
E-mail: *****@******.***
I hereby request that you remove or disable access to this material as
it appears on your service in as expedient a fashion as possible.
Thank you.
Regards,
Aaron Tuttle
(Personal signature in JPG form and attached)
The infringing web pages below are hosted by thelostogle.com. The
copyrighted work at issue are the personal photographs of Mr. Tuttle
that appear on these URL(s):
1. http://www.thelostogle.com/2015/02/19/do-not-take-pics-inside-first-national-center-you-may-get-sued/#more-52615
2. http://www.thelostogle.com/2014/10/28/aaron-tuttle-was-a-spray-tan-model-for-halloween/
3. http://www.thelostogle.com/2013/09/13/aaron-tuttle-is-still-a-tool/
4. http://www.thelostogle.com/2013/06/18/aaron-tuttle-is-sad/
5. http://www.thelostogle.com/2014/01/09/some-nutty-facebook-weatherman-troll-does-not-like-aaron-tuttle/
6. http://www.thelostogle.com/2007/06/24/aaron-tuttle-to-the-rescue/
7. http://www.thelostogle.com/2014/08/25/hot-dude-monday-aaron-tuttle/
8. http://www.thelostogle.com/2014/10/31/5-ways-oklahoma-men-can-live-longer/
9. http://www.thelostogle.com/2014/12/22/2014-year-in-review-january/
10. http://www.thelostogle.com/2014/10/27/7-spookiest-places-in-oklahoma-city-to-visit-for-halloween/
11. http://www.thelostogle.com/2014/08/22/meg-alexander-was-snubbed-by-mary-fallin-on-the-ice-bucket-challenge/
12. http://www.thelostogle.com/2014/04/30/which-oklahomans-would-you-chose-for-a-beer-heist/
13. http://www.thelostogle.com/2014/04/09/lacey-swope-is-your-ogle-madness-vii-champion/
14. http://www.thelostogle.com/2013/09/03/2013-worst-of-okc-recap/
15. http://www.thelostogle.com/2013/08/15/2013-worst-of-okc-worst-weatherperson/
Kendell Kelly, Esq :

Hello, my name is Kendell! Happy to help! Please remember that this is a tool for information only, we cannot give you legal advice and thus cannot tell you what to do or not (since that is prohibited).This should not be considered a attorney-client relationship. Also, please reserve your feedback until we have fully answered your question -- I will stick with you until we do.

Kendell Kelly, Esq :

This is kind of a tricky one, because you need to comply with whatever terms and conditions have been provided to the customer -- this becomes a contract and is why they are so important -- and the DMCA.

JACUSTOMER-q5gknyu- :

Hello again!

Kendell Kelly, Esq :

Does the complaint actually provide proof of ownership - specifically copyright registration numbers, for any of the images?

JACUSTOMER-q5gknyu- :

No. The guy who filed the DMCS is Aaron Tuttle and they are images of him. So no there are no copyright reg #'s. I supposed the guy could whip out his Govt issue drivers license and prove they are images of him.

Kendell Kelly, Esq :

Specific to your website owners statements -- fair use is an uphill battle if the images are protected by copyright and there is no specific path to (cease and desist first, etc) that must be filed. However, the complainant should have contacted the actual website to request removal before heading to the host...

Kendell Kelly, Esq :

Being in an image actually doesn't mean you own it...especially because being in the image generally means you did not take it and the photographer in fact is generally the owner without agreement to the contrary.

JACUSTOMER-q5gknyu- :

What are the ramifications of I do not comply with the DMCA complaint? Is there a legal precedence for internet providers that do not comply? would Aaron Tuttle have a claim against my company for not complying?

Kendell Kelly, Esq :

Do you have a formal take-down policy listed for your host service? I am asking about copyright registration/ownership and the like because most policies would provide only the proven owner of a registered copyright could compel removal.

JACUSTOMER-q5gknyu- :

https://www.rivalhost.com/legal.php#tab-dmca

Kendell Kelly, Esq :

T1) he ultimate ramification would be shut down of your services -- but, that would not likely happen with one issue. 2) Absolutely! As long as there has been law in this area, isps have been fighting back on what that actually need to do to be in compliance. 3) If you did not follow your own policy and the DMCA, he would have a case.

Kendell Kelly, Esq :

Give me a minute to check out your link

Kendell Kelly, Esq :

Based on your terms, the images should be removed... it will then be up to your website owner to go thru "put back" process and they can fight it out if they need to further. But, as ISP, your job is to comply when you have to -- your own rules, the law, etc -- and then go from there so you can maintain your safe harbor protection.

JACUSTOMER-q5gknyu- :

ok got it! thanks again Kendall. FYI My name is ***** ***** well and so is my Daughters. We spell it exactly the same as well :)

Kendell Kelly, Esq :

If you took the stance of a website or host company, like the dirty.com (which I am not a fan of but is a good example) that no images were removed unless ownership was proven, etc then you would wait for those requirements to be met. But, you do not set a higher threshold, so it would appear the takedown requirements are met and you should comply -- clearly being prepared for the website owner to baulk.

Kendell Kelly, Esq :

HAHAHA!!!! That is cool!!! I am actually Kendell, no As but my rule is anyone with a K name is ***** ***** Me :-D

JACUSTOMER-q5gknyu- :

thank you! take care

Kendell Kelly, Esq :

No problem! Happy to help! Please let me know if you have additional questions in the future and make sure to leave feedback or I will not get credit for my time.


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