The LA Times (Robin Abcarian/Jessica Garrison) is out with a long two-page report on "Perez Hilton takes their best shots: The gossip blogger's use of an agency's paparazzi photos puts the legal spotlight on copyright infringement".
For people in the stock photo industry, the article starts with the surprising sentence: "It's hard to know whom to sympathize with in this fight".
Besides the facts which were already widely reported and besides mentioning that "Hilton and X17 used to be allies, linking back and forth to each other´s sites", the article puts the focus more on Copyright Infringement vs. the Fair-Use exception of the Copyright Act.
I´ve been discussing this in summer 2004 with Jason Calacanis two times after he started Weblogs, Inc..
David Schonauer wrote earlier: "Here’s a confession, and it’s a bad one: I read that gossipy perezhilton.com blog all the time ... Can copyright be protected in the blogosphere? I think the genie is already out of the bottle".
That´s a witty sentence, and fun to read. But to me this sounds much more like the opened box of Pandora.
I think the Fair-Use exception can not be applied if you grab an image (and there´s some criminal energy behind the way Perez Hilton gets his images nowadays, as X17´s Brandy Navarre explains), publish it on your blog with the primary intention to make money with the stolen content through advertisement you run on your website, either if the image is digitally altered or not, like PerezHilton.com.
That´s Commercial Use, no Fair-Use any longer, of external content, grabbed without permission. And for using images commercially you have to pay. That´s it. Perez Hilton doesn´t credit X17, he even doesn´t link back. Instead he grabs.
Next, the main intention of Perez Hilton is less to discuss newsworthy events of The Rich And Famous, rather than to earn the big money with stolen content. He did not only do it one or twice, instead he does it "two dozen or more times a day".
The LA Times writes:
While it's easy to be flippant about a battle between paparazzi and a sometimes juvenile blogger (who might draw cocaine or mucus trails from noses, mouth drool or other snarky/silly things on the photos he posts), there is a serious legal question at issue.
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. [...]
"Perez is not being targeted because he's an affront to paparazzi everywhere," said technology expert Matt Lum, whose company, Hoodlum Productions, provides technology expertise to both Hilton and X17. "He is being targeted because the entire industry is undergoing a shift that was arguably brought on by blogs like perezhilton.com, which took stargazers from a weekly or nightly television fix to an hour-by-hour, minute-by-minute, entertain-yourself-at-the-workplace enterprise.
"The way that Americans get their news and entertainment these days is a whole lot different from waiting for things to get printed, and that's what's at the crux of this whole ordeal," Lum added. "When he says he is fighting for all bloggers, he really is." [...]
One prominent copyright attorney said it was impossible to tell who would prevail.
"Clearly, photographs are copyrighted and afforded protection; on the other hand, wide berth is given to the press to report on newsworthy events," said Century City copyright attorney David Nimmer, author of "Nimmer on Copyright." In this context, a photograph could be considered a newsworthy event.
Related:
- Celebrity Photo Agency X17 Sues Celebrity Blogger Perez Hilton, Claims $7.5 Million In Damages, WENN, INF, Splash News, Ramey, Bauer Griffin, Most Wanted, Flynet Follow (Dec. 01, 2007)
- Perez Hilton Sued for Copyright Infringment (Amercian Photo, Dec. 01, 2006): "Can copyright be protected in the blogosphere? I think the genie is already out of the bottle".
- Some Just Don´t Get It: Paris Hilton, Perez Hilton, Who Cares? (Nov. 16, 2006)
- Blogs, Photo and Copyright: The debate continues
[Copyright => Garbage?] (June 13, 2004) - Blogs, Photo and Copyright:
"Hey, I drove that Porsche Boxster for two days, but frankly, I didn´t want to use it, I just wanted to make advertisement for Porsche!" (June 06, 2004) - "THANK YOU SO MUCH FOR USING OUR PICTURES" Part II (June 04, 2004)
