Idaho photographer Kai Eiselein is suing BuzzFeed for $3.6 million, accusing it of not only using his photo without authorization but also of “contributory infringement” charges because BuzzFeed encourages content sharing.
I am not a lawyer, but since Slate regularly deals with the whole question of posting images on the Internet I feel like I’ve gotten a decent handle on the law here. The basic consensus around these parts is that the contributory infringement claim is dubious, but that BuzzFeed’s legal theory for why it’s OK for them to lift content like Eiselein’s is also dubious. BuzzFeed essentially relies on a “fair use” theory that says their construction of listicles is a transformative use of images, so they can freely use copyrighted material without permission. This is, shall we say, not an interpretation of fair use that any publication I’ve ever worked at is comfortable with.
Now, a different question is whether fair use should be broadened in this way. I am in general not a huge fan of stringent copyright protection, and I think that the BuzzFeed case underscores an important part of the economics of copyright. The theory behind copyright is that granting monopoly profits to creators will create incentives for creation. And it does. But copyright also massively raises the input costs of creation. Since Sherlock Holmes is in the public domain and Batman is not, it is much cheaper to make a TV show about the former than the latter. It’s not obvious to me whether making the rule BuzzFeed prefers would lead to more content-creation or less. Under their rules, creation would be less lucrative but it would also be cheaper.
Another issue is hassle costs. A colleague proposed a mandatory licensing scheme for Internet images so that people whose photos other people want to grab can get some money, but would-be grabbers can still move quickly. That seems like a pretty good idea to me. But until we have it, I’ll keep relying on the invaluable Creative Commons search function and keep paying it forward by tagging my own photos as Creative Commons licensed.