Copyright infringement lawsuits are usually started in big companies and sent to target individuals who infringe, but a more unusual suit has recently emerged with an individual targeting a firm.
Photographer Kai Eiselein is filing suit against BuzzFeed after the company used a photograph he took, depicting a girl playing soccer, without his permission. Eiselein's suit is reportedly seeking $3.6 million in damages, said to be the maximum allowed by law, and for reasons that may not be expected.
The photo in question started out on Eiselein's Flickr account, but quickly found itself incorporated into a BuzzFeed article called “The 30 Funniest Header Faces.” Court documents reportedly indicate that BuzzFeed is being targeted thanks to its encouragement for users to share images, and just about anything else, regardless of ownership of said content, or whether or not the content in question has actually been licensed to BuzzFeed. Additionally, there is reportedly the issue of subsequent infringements, based on those who published the photo after BuzzFeed posted it.
But the question that has plagued copyright holders for some time is likely to be the same question that ultimately torpedoes Eiselein's lawsuit: the question of “fair use”. There are provisions built into copyright law for the use of some materials without the requirement for authorization or payment – especially in a noncommercial fashion. Some have noted that the ambiguity of “fair use” principles leaves a lot of loopholes available – loopholes that BuzzFeed, or its lawyers, may be able to take advantage of. Reports indicate that BuzzFeed's CEO has in turn argued that a post to BuzzFeed constitutes “a transformative use of photos” which is covered under the fair use principles.
While only a court of law can establish whether those uses are truly encompassed by fair use principles, some have already suggested that BuzzFeed's use of Eiselein's image would indeed be part of such an action thanks to what BuzzFeed does with the images posted to it; things like sequencing, framing and so on, become part of a process that “advances knowledge or the progress of the arts through the addition of something new,” part of the concept of fair use.
With the lawsuit reportedly already filed, and BuzzFeed unlikely to settle, the issue of “fair use” is likely to get a little more consideration over the coming months. Indeed, should Eiselein win, some have already suggested a likely “chilling effect” in the nature of social sharing online. After all, if people are afraid to share images found due to the threat of lawsuit—if websites are afraid to show images that viewers find—what other outcomes could there be? The results of the court case and its doubtless subsequent appeals will likely chart a course for the Internet in general for some time to come.