It seems like all of those llama slideshows might be coming back to bite BuzzFeed.
The website, which is known for aggregating images from other sources, is being sued by a professional photographer whose photo was used in a typical BuzzFeed post called “The 30 Funniest Header Faces.”
But in a lawsuit filed in New York, Eiselein accused Buzzfeed of “direct and contributory infringement” and claims he is owed $3.6m after his work was shared widely across the web.
He wants Buzzfeed to pay $150,000 in damages for each of the 23 sites that used his picture after the initial post, plus a further $150,000 for “contributory infringement” by another site, luuux.com.
Copyright law hasn’t caught up with the way images move around the Internet, where credit for the original image is often lost.
BuzzFeed defends its use of others’ images without licenses under the Fair Use exception to copyright. By putting images in lists, BuzzFeed argues that its use of these images is transformative, not derivative, so they are not violating the rights of copyright holders by using them on their website.
The site’s founder, Jonah Peretti, explained the argument to The Atlantic last year:
So, Peretti told me that he considers a BuzzFeed list — its sequencing, framing, etc — to be a transformative use of photos. That is to say, including that unattributed photo of the otter in that list was OK because its inclusion as an “extremely disappointed” animal transformed the nature of the photo.
“It’s a question,” Peretti said, “of when lots of little things add up to a transformation as opposed to a copyright violation.”
Most publications do not construe the Fair Use exception in that way and rely on images that they have paid licenses to use or on images that are free to use under Creative Commons licensing. Critics argue that the act of compiling these images to a list is not transformative and is, in fact, a violation of the law, as Eiselein claims.
There are plenty of other sites that rely on others’ images—often without licensing or even giving credit—such as Pinterest and Tumblr. However, these sites are not subject to copyright lawsuits due to the safe harbor provision of the Digital Millennium Copyright Act. DMCA protects sites whose users upload images they did not create—including Pinterest and Tumblr—but not sites whose staff upload those images, including BuzzFeed.
BuzzFeed’s business model is relatively new and it is unclear how copyright law will be applied. This is one of many examples of current law being inadequate for new situations that come up as the Internet continues to permeate our lives. The decision in this case is likely to have a major effect on image sharing on the Internet and the way new sites develop their business models.
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