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Summary:

BuzzFeed has been criticized for taking images from other sites such as Reddit without giving credit to the original creator — something that the web’s “remix culture” is making more and more difficult. But BuzzFeed’s desire to create sponsored content makes it more important than ever.

BuzzFeed’s impressive growth — capped off by a recent $19-million venture-financing round — is a testament to the site’s ability to find and package “viral” content on a range of topics, from heartwarming photos of charitable acts to a collection of cookie jars shaped like dogs. But a blowup with the online community Reddit over the ownership of some of the pictures that BuzzFeed used in a recent post has reignited a debate over the way the site uses such images. It’s an issue that is likely to become even more urgent as BuzzFeed continues to grow.

In the latest incident, the site put together a collection of images that were created using the long-exposure function on some cameras. But it wasn’t just a regular post — the collection was created for Samsung as part of BuzzFeed’s “native advertising” or sponsored content program, where the site creates a post and tries to get it shared by users in the same viral way that its regular posts are (the post, entitled “14 Amazing Photos That Were Totally Not Photoshopped,” appears to have been removed but there’s a Google cache version here).

Creating sponsored content with borrowed images

BuzzFeed CEO Jonah Peretti has made it clear that he sees this kind of native advertising content as the future of digital-media monetization (something he will be talking about as part of our paidContent Live conference on April 17 in New York City). But if the site continues to run into allegations of copyright infringement based on the pictures or other content it uses in these sponsored posts, that could make it somewhat harder to sell clients on the idea — and with its recent venture funding, the pressure on the company to toe the line is only likely to increase.

The problem for BuzzFeed, and for plenty of other online-media players, is that the line they need to toe when it comes to copyright infringement is so blurry. Particularly when it comes to photos, the difference between blatant infringement and “fair use” is not easy to define — although many armchair legal scholars (including many of BuzzFeed’s critics) would like to pretend that it is. When it takes a court more than three years to determine whether Google’s use of thumbnails in an image search qualifies as fair use, it’s safe to say the issue is complicated.

photographer

To some, it seems obvious that taking someone’s photo from another source and using it without permission is infringement. But what if that photo is a slightly modified version of a photo that has appeared elsewhere? Who owns the rights? In some cases, the pictures BuzzFeed uses can be easily traced to their creators — as Wired pointed out in a previous incident involving a professional photographer, who later settled with the site over the use of her photo. In other cases, it’s not obvious. (BuzzFeed has also been sued for using celebrity photos without permission, as my colleague Jeff Roberts has pointed out).

BuzzFeed says it is trying to improve

Peretti told me in an email the same thing he said to Mashable: that is, he regrets any offence caused by using some of the photos that came from Reddit in the campaign, and agrees the site should try to track down the original posters (one of the criticisms that is often levelled at BuzzFeed is that it provides links to the photo itself on a third-party hosting provider like Imgur rather than to the original source). In his email message, he said:

“We were very concerned that we upset people in the photography subreddit. We immediately addressed the complaint… and posted an update in the reddit thread. The BuzzFeed post was designed to show how cool that sort of photography is so we regret making these awesome, creative people upset. We’d be happy to talk to any of them directly to figure out how to work together with photographers active on imgur.”

So how hard should BuzzFeed have to try in order to find the original creator? And if it can’t find them, should it be allowed to use the photo or not? It’s easy to see the site as the bad guy, taking people’s photos without asking and trying to make money from them — but the reality is that “remix culture” or whatever we choose to call it has become commonplace online, for better or worse. Photos and videos are edited, remixed, combined and uploaded thousands of times until the original owner of the various parts may be almost impossible to determine. Why is using such a photo not fair use?

The biggest issue is that “fair use” itself is such a thorny concept. Everyone thinks they know it when they see it, but definitions are all over the map. In part, that’s because it is a horrendously complex legal principle that is based on four often conflicting factors (purpose of the original work, amount of the original that is used, the purpose of the infringing work and the effect on the market for the original). But as complex as it is, it’s also a crucial part of the foundation of the social web, whether we choose to admit that or not.

These are not easy questions to answer, by any means — but they are becoming increasingly important for sites like BuzzFeed (and even Reddit itself) to grapple with head-on, especially since so much of their financial future depends on making sense of whose content they are using and how.

Post and thumbnail images courtesy of Shutterstock/mtkang and Shutterstock/Lightpoet

  1. Flux Research Friday, January 11, 2013

    These guys would be worth looking at in relationship to this topic:
    http://www.trendhunter.com/

    I started to write for them and then realized they were taking every photo from articles on other sites and rerunning them without permission. No cropping. No changes.

    I was told by Jeremy Gutsche that his lawyers said they were fine but I couldn’t be part of something like that. It felt like a blatant ripoff with no grey areas except in the courts.

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  2. I’m surprised that Reddit users aren’t upset with Tumblr or Facebook’s Share function which serves to redistribute images to millions of people. I rarely see the photographers ever credited.

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  3. Burton Hohman Friday, January 11, 2013

    What bothers me about something like this the movie and music industry get all up in arms if somebody remixes a clip or song and posts it on youtube, but large corporations don’t seem to see any problem with taking people’s photos and using them. Look at this buzzfeed incident or how instagram tried to change their tos. If those companies want to use our stuff for profit, why shouldn’t we be able to use theirs?

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  4. The material was used in a commercial message for money. That doesn’t seem to qualify as fair use.

    Buzzfeed didn’t really seem like they tried to determine who the creator was at all.

    Doesn’t seem that hard to contact the poster and ask if they’re the author or know who is before selling their photo to Samsung.

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  5. Nice article Mathew – we took a closer look at our practices after reading into it more. Our perspective as a content publisher is here: http://everydaydreamholiday.com/2013/01/12/sharing-or-stealing-buzzfeed-photo-attribution-and-creative-commons/

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  6. witness protection Sunday, January 13, 2013

    “To some, it seems obvious that taking someone’s photo from another source and using it without permission is infringement. But what if that photo is a slightly modified version of a photo that has appeared elsewhere? Who owns the rights?”

    A reproduction of an image must be 75% altered in order for the alteree to claim ownership and a new copyright. Which is why Perez Hilton got in trouble for drawing penises and not paying for the original image (after a few lawsuits, he is very good about paying his agencies now).

    I’ve always been disturbed by the amount of copyrighted material on Buzzfeed. If they use a thumbnail image to link through to the original, driving traffic to the original site, it’s okay. (They do this a lot on the Food section, where they link through to the recipes on the original site.) But they lift whole articles and then put them under their own “Sponsored” content — making money off the theft of others’ work. And it doesn’t matter if Reddit is in the wrong on taking the content in the first place. For Buzzfeed to re-post stolen Reddit content is like selling stolen iPads out of the back of your car.

    The use becomes clearer the closer you are (like me) to being someone who creates original content. This whole “it’s on the internet so it must be free” is just as skeevy as the musicians who were ripped off by record companies in the 60s.

    It’s not that hard to be on the right-side of things. Most artists would be thrilled to have Buzzfeed or Reddit exposure — you just need to ask. Unfortunately, it’s not in the sites’ business model to do so.

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  7. Buzzfeed should absolutely not be able to just use the photo if they can’t source it. Sorry guys.

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  8. Determining fair use for editorial purposes can be tough to decipher, but for advertising it is simple. If it is advertising – there is no fair use.

    Calling it ‘native advertising’ does not change the fact it is commercial speech and you need to pay for or get approvals for every image used. Photo editors/rights management teams are kind of expensive, so that takes a lot of the shine off the ‘remix’ business model.

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  9. Actually, these are easy questions. The “remix culture” has always existed [whether making a collage from magazine cutouts to using a boombox to make a mix tape] and that’s all fine and good for non-commercial purposes. On the other hand, using any IP for any commercial purpose without first negotiating with the copyright holder securing the required rights is weasely, underhanded and plain dumb.

    At the end of the day, it’s nothing short of dealing in stolen goods and that’s not a business model. The money they save by not paying for IP will go to lawyers when copyright holders cry foul … and in most cases, it’s much cheaper to pay photographers than lawyers. Throw in the bad press and you’ve got a lose-lose. And I doubt that the advertisers paid BuzzFeed with stolen money or Fair Use counterfeit bills.

    More than that, these practices create bigger Fair Use questions: Why can’t a random person or company charge users a fee to access BuzzFeed or other sites? If we’re no longer going to get permission to make money off of another person or company’s property, then this too would fall under Fair Use. But it shouldn’t. Just because no one has noticed that you’re using something that doesn’t belong to you doesn’t make it fair.

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  10. Putting a photo on IMGUR is not remixing it.

    Buzzfeed and many other sites of its ilk find photos on IMGUR, know that they are probably copyrighted, and use them anyway. That’s wrong.

    Referring to fair use as “thorny” doesn’t save the argument, and the fact that stolen photos are mixed with other stolen photos doesn’t make it any more right to steal them.

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