Novel legal theories mingle in BuzzFeed photo suit

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Idaho photographer Kai Eiselein is suing BuzzFeed in U.S. District Court, claiming the site should pay not only for infringing his copyright when it ran his image but also for all the sites that subsequently posted it.

“Since BuzzFeed was the original poster of this set of images and provided them for distribution; the defendant is unequivocally responsible both directly and indirectly for all subsequent infringements,” Eiselein’s complaint reads.

That’s an admirably avant-garde legal theory, an area of scholarship in which BuzzFeed is already a thought leader: BuzzFeed CEO Jonah Peretti has argued the site’s lists constitute a transformative use of others’ photos, and thus fall under fair use. Jeff John Roberts writes that it’s unlikely Eiselein’s “contributory infringement” can “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.”

But as a copyright attorney told me earlier this year, “the common etiquette of the Internet is not reflected in the law.” In the Eiselein matter, that inconvenience may for once be to BuzzFeed’s advantage.

More on BuzzFeed and photos: BuzzFeed lawsuit over celeb snaps raises copyright questions (GigaOM) | If putting photos together in a top 10 list is fair use, what isn’t? (Poynter) | How To Make a Viral Hit in Four Easy Steps (Slate)

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  • JTFloore

    agreed wholeheartedly. theft is theft no matter what you call it. I for one hope buzzfeed gets nailed big time. and I mean BIG TIME.

  • ProducerMatthew

    “[T]he case would throw a large chill over the sharing culture that has become a fixture of the social web.”

    Sharing culture or stealing culture?

    If I make a dozen cookies and hand them out on the street, that’s sharing. If I make a dozen cookies, and then BuzzFeed comes into my house, takes the cookies off the counter and starts handing them out to pedestrians, they might be sharing those cookies on the street, but they still stole those cookies from me.

    If they had just asked me if they could hand out my cookies, I probably would have been cool with it — but I’m not okay with BuzzFeed taking my cookies under the presumption that if they had asked, I would have given them permission. Also, it’s a nice gesture for BuzzFeed to tell people as they hand out my cookies, “hey, we got these awesome cookies from that guy’s house,” but the fact that they took the cookies without asking is still stealing.