Photographer sues BuzzFeed for $3.6M over viral sharing model

An Idaho photographer, Kai Eiselein, has filed a copyright lawsuit against BuzzFeed, claiming the site used one his images without permission for a soccer montage called “The 30 Funniest header faces.”

The lawsuit, filed in New York earlier this month, claims BuzzFeed owes more than $3.6 million in damages as a result of the soccer pic appearing on 64 sites around the web. According to Eiselein, who uploaded the original image to Flickr, BuzzFeed is liable for “contributory infringement” because the site’s viral news model encourages readers to share the content they find:

BuzzFeed Inc .. gathers items from around the internet, posts them on their website and encourages their visitors/readers to share them … BuzzFeed uses this fact to help convince potential advertisers to place ads on the Buzzfeed site in hope the ads will get a “viral lift” …

BuzzFeed, Inc actively encourages its users to share content, regardless of whether or not that content is owned by, or licensed to, Buzzfeed.

The complaint (embedded below) points to dozens of little known websites where the photo allegedly appears, in addition to the original BuzzFeed page which is still online but is now titled “The 29 Funniest Header Faces.”

The soccer suit is not BuzzFeed’s first brush with copyright law. In October, a paparazzi agency filed a lawsuit after a BuzzFeed staffer (the same one who made the soccer montage) posted copyrighted pictures of Katy Perry and a topless Kathy Griffin. BuzzFeed, which declined to comment, settled the case early this year.

The copyright issues poses a threat to BuzzFeed and similar websites, including Upworthy and For the Win, which have an editorial model based on finding content — especially images — that readers are likely to share on social media.

Last year, BuzzFeed founder Jonah Peretti explained to the Atlantic that the site pays to license images from companies like Reuters(s tri) and Getty, but that it also pulls from amateur sites like Tumblr(s yhoo) and Flickr. In these cases, the provenance of the images can be unclear — in some cases, the photographer has made them available for public use while other times the author is simply unknown.

Peretti also claims that, in any event, BuzzFeed’s photo montages are fair use under copyright law because they are “transformative” (which is one factor in the first part of a complicated four-part fair use test).

In the soccer case, it’s unlikely that the self-represented photographer “contributory infringement” theory will 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. More likely, the case will just show once again how traditional copyright law — and its frequently abused enforcement tools — is ill-fitted for the digital age.

You can decide for yourself if the original soccer image is worth $3.6 million by looking at it here.

Eiselein v BuzzFeed

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