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.
Web sites should start with the notion that if they cannot find a photographer's contact info for a picture, it is unavailable for use.—
Glenn Fleishman (@GlennF) January 11, 2013
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.
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.