Jonah Peretti, the founder of the viral content website BuzzFeed, told the Atlantic in an April 2012 story discussed some of the ways that the popular website avoids copyright infringement issues. In addition to licensing fees BuzzFeed pays to Reuters, the Associated Press and Getty Images for use of their libraries, Peretti argued that a lot of the website’s other images are protected by the Fair Use limitation and exception. The Atlantic noted that the Digital Millennium Copyright Act (DMCA) does not offer BuzzFeed the same protections that it offers other websites like Tumblr or Pinterest in which users upload images. “I would love if every image contained some secret metadata and a way to license that image,” Peretti said. “But the practical reality is that it is pretty challenging, particularly in the web culture of animals and the images that spread on Pinterest and Tumblr.”
Because a key consideration for the Fair Use exception is the extent to which the use could be interpreted as transformative rather than derivative, Peretti claimed that the sequencing, framing and other elements of BuzzFeed lists containing images are a transformative use of photos. “It’s a question … of when lots of little things add up to a transformation as opposed to a copyright violation,” Peretti told the Atlantic.
That argument is likely to be put to the test after photographer Kai Eiselein filed a lawsuit against BuzzFeed last month. Forbes reported that Eiselein is seeking more than $3.6 million and claims that BuzzFeed infringed his copyright in a photograph he posted on Flickr in 2009 showing a soccer player heading a ball. He alleges that the website included the photo without his consent in a June 2010 post entitled “The 30 Funniest Header Faces.” While BuzzFeed removed the photo and renamed the collection “The 29 Funniest Header Faces” after Eiselein sent the company a takedown notice in May 2011, the photographer claims his photo had spread virally to dozens of other websites and BuzzFeed is liable for contributory infringement for the photo’s use on those sites. As Forbes noted, Eiselein registered the photo with the US Copyright Office in late June 2011, and copyright registration allows a plaintiff to recover very high “statutory” damages for subsequent infringement.
While Eiselein may have a difficult time prevailing on all of his claims, Forbes was right to suggest that “he is also unlikely to walk away completely empty-handed.” This will certainly be a case that deserves to be followed closely as it develops. If your company needs experienced legal representation for intellectual property litigation, Los Angeles business litigation attorney Robert G. Klein has over 25 years of experience handling complex copyright issues. Use the form on this page or contact our firm today at (323) 653-3900 to have our Los Angeles copyright infringement attorney review your case.
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