In recent years, as discussion about copyright law has moved from the province of practitioners and academics to anyone with an Internet connection, numerous myths about the subject have emerged. One is that a "DMCA notice" is the universal means for addressing alleged web-based infringement. It's not. A DMCA notice is a specific type of communication, appropriate only for combating specific types of infringement. Sending such a notice in the wrong circumstances won't solve your legal problems, and will only make you look foolish.
Case in point is a purported notice recently received by blogger Patrick Frey of Patterico.com. The notice was sent by an Australian photographer named Ted Szukalski, who took and owns the copyright in a photograph of a homeless man shining a woman's shoes. Much to Szukalski's (understandable) chagrin, someone unknown photoshopped the picture, altering it so that Barack Obama appears to be shining Sarah Palin's shoes. The altered photo circulated widely on the Internet, and was roundly criticized as racist. Frey included the photo in a post criticizing another blogger, Charles Johnson of Little Green Footballs, for referring to the photo as an example of "right-wing racism," when the incident cited by Johnson actually involved the forwarding of the photo by a Democrat.
Szukalski apparently wanted Frey to remove the altered version of the photo, so he sent what purports to be a DMCA notice. But, even assuming that Szukalski has a valid copyright claim (more on that dubious notion below), a DMCA notice is entirely inappropriate for these circumstances. Szukalski's notice cites Section 512(c)(3) of the DMCA. Section 512(c)(1) provides for a safe harbor from claims of "infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider," if the host follows certain steps, including promptly removing allegedly infringing material identified in a notice with the information listed in Section 512(c)(3). But the situation here does not involve "storage at the direction of a user"; it involves Frey himself making a copy of the photo, and posting it to his blog. If Frey infringed Szukalski copyright (again, more on that below), he is simply liable; he can't benefit from the DMCA's safe harbor. And Szukalski's procedurally correct move would either be: 1) send an old-fashioned cease-and-desist letter; or 2) sue Frey for copyright infringement. (There's no requirement to send any sort of notice before suing, though of course it's usually desirable to resolve things short of litigation.)
There's an additional reason Szukalski's purported DMCA notice was improper: such notices are effective only if sent to a site's registered DMCA agent. See 17 USC § 512(c)(2). Patterico.com has not registered such an agent, and thus, even if this incident did involve user-posted material, the DMCA safe harbor would not protect it from copyright claims. Sending a DMCA notice, which sets in motion a process for the site to lose the safe harbor if it doesn't remove the offending material, to a site that isn't even eligible for the safe harbor because it has no DMCA agent and so is completely ineligible for the safe harbor, is a fool's errand.
OK, enough about procedure. What about the merits of Szukalski's copyright claim against Frey? I think Frey's posting of the altered version of Szukalski's photograph is a classic non-infringing fair use. He posted it in the course of a lively political discussion about the allegedly racist nature of the photo, and other bloggers' interpretation of it. And the only way to have a truly effective discussion about such matters was to post the photo itself, so that readers could see what he was talking about, and judge for themselves. This is a paradigmatic example of the kind of "criticism, comment, [and] news reporting" at the core of fair use (and the First Amendment). It's entirely understandable that Szukalski doesn't like the fact that his photo was altered, and used in such an offensive way. But once that happened, he can't use copyright law to suppress discussion of what occurred.
But what about the people who originally altered Szukalski's photo or who (unlike Frey) copied and distributed it simply because they liked whatever message it conveyed? Were they engaged in fair use? I highly doubt it. If they wanted to communicate that Barack Obama should be shining Sarah Palin's shoes, they could license the photo(s) they needed, or create their own. But why should they have the right to take Szukalski's work, without compensation, just "to get attention or to avoid the drudgery in working up something fresh"? Campbell v. Acuff-Rose, 510 U.S. 569 (1994). People have the right to be racist. But they don't have the right to infringe others' copyrighted works to promulgate their message.
Update: Here's a thoughtful response from Szukalski himself.