Everybody does it once in a while. I mean, It's Fair Use right?
Well, it depends on who you ask.
X17 Inc., an L.A. photo agency, a.k.a. paparazzi, is suing celebrity blogger Perez Hilton over alleged federal copyright violation.
It seems that at least 51 of X17 Inc.'s photos have showed up on Perez's "blog" and X17 Inc. says that Perez is free-riding.
What's that got to do with you... or the blogosphere?
Over the hump...
Insert Standard Disclaimer Here: I am not a lawyer (so you lawyers out there give us a hand please.)
In an article published in the LA Times today, Perez says that he is
willing to step up to the plate and fight for my rights and fight for the rights of all bloggers...
I know you have seen some pretty interesting cartoons, graphics, and photos on dKos and other sites. Hell, I posted some Halloween cartoons not long ago... scooped 'em up off the Internet years ago. Are they protected? Is it Fair Use. I hope so.
At first glance, Fair Use seems simple enough.
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
The statute goes on to enumerate four conditions or tests for Fair Use:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
To me, the first "test" seems to be the most critical... is the use for profit or not?
Here at dKos, we limit the use of copyrighted text (test number 3) and can be banned for use of an entire article.
In the Perez Hilton case, he takes photographs found at X17's site, adds a few barbed comments (and sometimes adds things to the photos), and publishes them without attribution.
X17 Inc. has licensing agreements with other bloggers and has said that
"We've had trouble with a lot of bloggers... But he's the biggest, and the most arrogant and pigheaded about it, frankly."
Probably not the strongest reason to sue someone. On the other hand, X17 will probably use test number 4 (effect of the use upon the potential market for or value) and the profit test in court.
From the LA Times:
If it turns out that what he does is copyright infringement — rather than a fair use of newsworthy images, as Hilton's attorney claims — it would not only put a serious crimp in the photo-driven field of gossip blogs, but possibly create new case law.
"The effect would be to eliminate the ability to comment on and transform photographs under the fair-use exception to the Copyright Act," said Hilton's attorney, Bryan Freedman of Century City.
It's one thing to take somebody's copyrighted work and turn around and sell it, he added, but to alter the work to achieve a satiric or humorous end is entirely different and is allowed under the law.
So which is it? Can copyright considerations limit what we can publish? Sure, but what are the limits? A judge (and the appellate courts, etc.) will let us know someday.
In the meantime, I'll only be posting my own photos for a while.