An American photographer, Kai Eiselein, is currently taking legal action against viral giant Buzzfeed over copyright infringement of one of his images that he has posted to Flickr. The pending case, if found in favour of Eiselein, could prove a landmark judgement in favour of creator’s rights. The findings will hinge on if or not Buzzfeed’s use of the image – in making it one of 30 images in a list – will be deemed a transformative enough use of an image to come in under fair dealing laws. Arguably, the image itself was not altered, so if this is found to come under fair use, it would make something of a mockery of those laws in the US.
Eiselein is asking for a quite extraordinary amount of money: US$3.6 million. He alleges damages from the spread of the image beyond Buzzfeed, where it was widely shared on other social networks and platforms, even after Eiselein issued an infringement notice and the image was removed from the original list. Eiselein claims the devaluation of the image through repeat unauthorised publishing of it diminishes his ability to profit from his original work.
Jonah Peretti, Buzzfeed’s CEO has publicly responded to this by saying:
“I would love if every image contained some secret metadata and a way to license that image . . . But the practical reality is that it is pretty challenging, particularly in the web culture of animals and the images that spread on Pinterest and Tumblr.”
Which in itself really gets to the crux of the matter: it’s not that hard, in reality, to find the original owner of an image via a reverse Google image search, for example. But this takes time, which in a content-hungry new media climate is in short supply. This is almost beside the point: aggregation as a business model is about the aggregator profiting off the work of others; without these original works, there are no sites like Buzzfeed or Uproxx or Tumblr or Pinterest.
In the case of Tumblr, since its acquisition by Yahoo, several of its blogs, some of them very popular, have been taken offline by the new administrators for copyright violations. This has been met with outcry from Tumblr’s mainly young user base, who have grown up in an era of free content, and who can sometimes struggle to see the problem inherent in violating creator’s rights for the sake of growing the bottom line of a corporation (hello Tumblr founders enjoying your windfalls.)
Brookings suggests a sensible solution for sites like Buzzfeed who want to continue to make revenue from collecting and republishing other people’s work: don’t ever use unlicensed images. Buzzfeed and other sites like it should have to pay to license the content they use to build their own brand and increase their own revenues. Otherwise publishers are just running a vert shiny sweatshop, which by pushing the boundaries of copyright law, not only makes it increasingly difficult for creatives to live off their original work, but also weakens the case for genuinely transformative works that sample and remix existing work to the point where something entirely new emerges (for example, the entire genre of hip hop).
But putting a bunch of captions and a list of other’s people work together to attract pageviews and claiming it as original work? That’s not fair to anyone.