If putting photos together in a top 10 list is fair use, what isn't?

The Atlantic | Slate

Tuesday, The Atlantic's Alexis Madrigal wrote that BuzzFeed co-founder Jonah Peretti believes BuzzFeed can legally republish others' photos in thematic packages such as "33 Animals Who Are Extremely Disappointed in You."

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."

A law professor tells Slate's Jeremy Stahl, however, that he wouldn't expect that to hold up in court.

Adding a funny caption, however, has not been viewed as transformative. “I would expect an interesting response from a judge if I argued that putting a caption on a photo was transformative use for the purposes of fair use,” says UVA professor, copyright expert, and occasional Slate contributor Thomas Nachbar.

Nachbar says that fair use isn't simply a question of whether something is "transformative"; there are other factors as well, such as whether republishing affects the market for the original work.

On a related note, last month BuzzFeed published a post called "8 Photos From Inside the Peeps Factory," which consisted of photos republished from a New York Times slide show. The post didn't link to the Times slide show and oddly credited "graphics8.nytimes.com." The photos were later removed from the post; now that URL returns a 404 error, although some remnants of its existence remain.

Laughing Squid also republished the Peeps photos; now the post is just a couple of lines with a link to the Times story. I sought comment from the Laughing Squid writer and BuzzFeed Editor Ben Smith about the photos but never heard back.

And that post with the sad animals? Nearly 300,000 Facebook shares. || Related: New "Pin It" button shares Flickr photos with attribution (VentureBeat)

  • Steve Myers

    Steve Myers was the managing editor of Poynter.org until August 2012, when he became the deputy managing editor and senior staff writer for The Lens, a nonprofit investigative news site in New Orleans.


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