35 Comments

Summary:

A photographer says BuzzFeed should pay copyright damages not only for an unauthorized photo that appeared on its site — but for the dozens of other sites on which the photo appeared.

BuzzFeed screenshot
photo: BuzzFeed

An Idaho photographer, Kai Eiselein, has filed a copyright lawsuit against BuzzFeed, claiming the site used one his images without permission for a soccer montage called “The 30 Funniest header faces.”

The lawsuit, filed in New York earlier this month, claims BuzzFeed owes more than $3.6 million in damages as a result of the soccer pic appearing on 64 sites around the web. According to Eiselein, who uploaded the original image to Flickr, BuzzFeed is liable for “contributory infringement” because the site’s viral news model encourages readers to share the content they find:

BuzzFeed Inc .. gathers items from around the internet, posts them on their website and encourages their visitors/readers to share them … BuzzFeed uses this fact to help convince potential advertisers to place ads on the Buzzfeed site in hope the ads will get a “viral lift” …

BuzzFeed, Inc actively encourages its users to share content, regardless of whether or not that content is owned by, or licensed to, Buzzfeed.

The complaint (embedded below) points to dozens of little known websites where the photo allegedly appears, in addition to the original BuzzFeed page which is still online but is now titled “The 29 Funniest Header Faces.”

The soccer suit is not BuzzFeed’s first brush with copyright law. In October, a paparazzi agency filed a lawsuit after a BuzzFeed staffer (the same one who made the soccer montage) posted copyrighted pictures of Katy Perry and a topless Kathy Griffin. BuzzFeed, which declined to comment, settled the case early this year.

The copyright issues poses a threat to BuzzFeed and similar websites, including Upworthy and For the Win, which have an editorial model based on finding content — especially images — that readers are likely to share on social media.

Last year, BuzzFeed founder Jonah Peretti explained to the Atlantic that the site pays to license images from companies like Reuters and Getty, but that it also pulls from amateur sites like Tumblr and Flickr. In these cases, the provenance of the images can be unclear — in some cases, the photographer has made them available for public use while other times the author is simply unknown.

Peretti also claims that, in any event, BuzzFeed’s photo montages are fair use under copyright law because they are “transformative” (which is one factor in the first part of a complicated four-part fair use test).

In the soccer case, it’s unlikely that the self-represented photographer “contributory infringement” theory will succeed on a legal basis — if he does, the case would throw a large chill over the sharing culture that has become a fixture of the social web. More likely, the case will just show once again how traditional copyright law — and its frequently abused enforcement tools — is ill-fitted for the digital age.

You can decide for yourself if the original soccer image is worth $3.6 million by looking at it here.

Eiselein v BuzzFeed

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  1. The difference with Upworthy is that they embed videos, and link out to other sites. Every youtube video they share is the original, and so the author is only aided by the republishing. They’re more of an RSS feed of only uplifting stories.

    Whereas BuzzFeed republishes content without attribution.

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  2. Theft is theft. All that sharing culture is nonsense. Get permission, pay for the content, or get lost.

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    1. lol. A quaint comment from someone who has no idea how the internet works.

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      1. hartfortworth Sunday, June 23, 2013

        LOL. A quaint comment from someone who has no idea how U.S. Copyright laws work. Tell me wesleywt, what do you create?

        rh

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      2. What a stupid comment. Just because the Internet “works” that way doesn’t mean it’s legal or right. If your car got stolen would you say “oh well, that’s just how society works these days.” Theft is theft and when you actually create something you might understand how it feels to have it not only stolen but then used by someone else to make them money.

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  3. Sharing culture is just another word for theft. Get permission to used the content, pay for it, or suffer the consequences.

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    1. Nope, sorry. We live in a new era, and you couldn’t be more wrong.

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      1. hartfortworth Tuesday, June 18, 2013

        New era my ass. Clearly you don’t make a living as a creative.

        Todd, “re-publish” or steal one of my copyrighted images and I’ll school you on copyright infringement.

        http://www.roberthart.com

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        1. James in Silverdale, WA Tuesday, June 18, 2013

          Copyrights, trademarks, and patents are unlikely to survive the coming demand for strong encryption. Moreover, the cloud of always-on devices will eventually make the ISP redundant, which is where all the enforcement must occur.

          Together, they spell doom. Todd is correct about the New Era.

          And don’t get too comfy here, either. Quantum computers will shred everything you know about copyrights, trademarks, and patents.

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        2. SaveTheWorldGetTheGirl Tuesday, June 18, 2013

          Why would anyone want to steal your images?

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          1. hartfortworth Wednesday, June 19, 2013

            That’s an excellent question!

            I ask that question each time I write a cease and desist letter or have my attorney file a lawsuit. I don’t have a good answer. I suppose it’s because they’re thieves and think they’ll get away with it.

            It’s so much easier, from a legal standpoint, to simply contact me or my agency and license the images.

            Much cheaper too.

            rh

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        3. oh yes, ignore the new era of the internet and make our old (and already out-dated laws) fit. MAKE THEM FIT – DO NOT ADAPT.

          I hear this is how you survive, no?

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        4. And yet you don’t mind using this very comment thread to publicize your website and your work. You want the benefits of the internet and the ‘sharing culture’ but none of the drawbacks.

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          1. I think that sums it up pretty well: The digital world offers tremendous benefits to content creators and the smart, savvy ones are taking advantage of it.

            I’m surprised that many photographers who get sue-happy even allow their work on the internet in the first place.

            Want to remove all potential for someone to “steal” your image? Just don’t put it on the net in the first place.

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            1. Jeff, that’s like saying that I shouldn’t take my car out of the garage if I don’t want it stolen.

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        5. Claire McNamara Tuesday, June 18, 2013

          That stance won’t fly. How are you going to “school” those who will (eventually) republish your work from a jurisdiction like China, Africa or one that you cannot even locate? If by now you have not figured out how you can make money off of other people’s “sharing”, then you will eventually wither away or become irrelevant in the digital age.

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          1. hartfortworth Wednesday, June 19, 2013

            Claire, my primary concern isn’t China or Africa. There are thieves aplenty right here in the U.S. And they have much deeper pockets. I make very good money off other people’s sharing. I have an agency that markets my images for me.

            Claire, I’m curious, what exactly do you create?

            rh

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  4. I was always under the impression that a good writer made sure ALL of the facts in their story were correct. Buzzfeed is nothing but a big leach that sucks money from photographers. It shouldn’t matter if the photo in question is worth 3.6 million dollars Mr. Roberts. The first question should be, “Did Buzzfeed obtain this photo legally with the consent of the photographer.?” And the second question should be, “For that amount of money, what happened?” And by looking at number 8 – Buzzfeed was sent a takedown notice in 2011 and the photo still remains on their site? Buzzfeed = bully. And for you formally being an IP attorney, you think Mr. Eiselein is way off base? Talk about being the judge and jury and this has just started!

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  5. Thanks for your comments Kyle and Noman. I didn’t say BuzzFeed is blameless but I’m wary of looking at the online image economy in such Manichean terms — where everything is either ok or it’s theft.

    The challenge we confront is how to create a copyright system that can both protect the integrity of creators without smothering internet expression. The question for this photographer is not just whether he has the right to control the photo — it’s what his recourse should be if someone uses it without permission.

    And how should be categorize infringers? We have professional pirates at one extreme and innocent/uninformed bloggers at the other — should the penalties be the same for each?

    And, finally, there is another IP issue here — what about the girl in the photograph? Should her personality rights trump the photographers’ copyright? After all, it is her performance that gives value to the photo in the first place. (I’m assuming that the photog didn’t have her sign a waiver)

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    1. Dan Mitchell Tuesday, June 18, 2013

      Is it “Manichean” to leave out essential facts, such as the one about the takedown notice? I noticed you ignored that part of the comment you’re responding to.

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    2. Dan Mitchell Tuesday, June 18, 2013

      Also, legalities and the complexities of Internet distribution aside, can we at least agree that profiting from the work of others without even an attempt to secure their permission, or even the courtesy of a link or credit, is a pretty shitty way to do business?

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  6. “internet expression”…if companies want to “express themselves” and monetize this by using other people’s content, then they should pay. It’s pretty simple: one person owns it; the other person uses it. There has to be a value exchange.

    Granted most of these sharing sites will be out of business because they have no sustainable revenue model. GIven the twisted logic of sharing content without honoring ownership, it’s pretty safe to say that companies like BuzzFeed don’t understand the basics of business. And those have been around since the dawn of time.

    Just because a rule of law is old, doesn’t negate its relevance.

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  7. Jeff, he doesn’t need a waiver or release from the girl. She is in public and has no reasonable expectation of privacy. If he is using this photo for editorial or photo journalistic purposes or is not selling it then he does not need a model release.

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  8. This was bound to happen. Buzzfeed’s list makers grab images without permission and without even bothering to do the most basic investigation of the provenance of an image. And even when they do use Flickr CC-licensed, they don’t even have the decency to credit the photographer properly.

    As for $3.6 million – of course the shooter will never get that, but it’s a good number to start negotiations at.

    That said, I don’t like the legal theory of contributory infringement any more than you do.

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  9. “And how should (w)be categorize infringers? We have professional pirates at one extreme and innocent/uninformed bloggers at the other — should the penalties be the same for each?”

    First off I fixed your typo Mr. Blogger. Then responded to your non-sensical argument.

    Let’s see, are the penalties the same for everyone who robs a bank even if they are uninformed that bank robbing is wrong? The only way you can rob a bank and get away with it is to work on Wall Street. Everyone else goes to jail.

    If we applied all the culture of sharing on the internet to the analog world, we wouldn’t need to pay for groceries or gas, we could take anybody’s car we wanted and drive it to work and then leave it there for the next person to borrow. We could go into any movie theater, NBA game, NFL game, concert etc. without a ticket.

    My grandfather taught me long ago, “just because you can do something, doesn’t make it right” Taking intellectual property from someone who created it and uses it to earn a living is no different than taking groceries from a store owner that uses that commodity to earn their living. Theft is theft.

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  10. And how much of those millions was the photographer going to pay the soccer player? Seems like it’s ok for him to exploit her but not for anybody else to exploit him.

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    1. A good point, but that’s a different law suit. Generally newspaper photographers don’t need to pay subjects in public spaces.

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