Copyright Cases to Watch: X17 v. Perez Hilton

Filed as Features, General on October 1, 2007 4:09 pm

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As part of a new mini-series here at the Blog Herald, I will be profiling ongoing copyright cases that have the potential to drastically impact bloggers and other small Webmasters. I’ll take an in-depth look at the case, where it’s going, what’s at stake and what’s likely to happen.

The first case involves two of Hollywood’s most loathed entities, a gossip blogger and a paparazzi photo agency. Though they were set on a collision course due to a combination of fierce competition and deep pockets, their west coast brawl could have major implications for copyright law all over the country and, through proxy, the rest of the world.

However, it’s not just one of the most important copyright cases currently ongoing, but also one of the most entertaining. Not only does this case involve photos of celebrities in compromising situations, but the case has also reached a level of vindictiveness rarely seen in copyright law.

Background

Perez Hilton, whose real name is Mario Lavandeira, is a famous gossip blogger and has made his name by posting photographs of celebrities, often with scribblings on them to make them more humorous, and reporting the latest gossip news. X17 is a paparazzi photo agency that claims to provide “Hollywood’s hottest photos” to hundreds of publications and Websites via its licensing program.

However, it was the appearance of some of their photographs on Perez Hilton’s site that drew their ire. According to X17′s initial filing. Hilton used at least 51 photographs they hold the copyright in, including several shots of Britney exposing herself, without properly licensing the images or, in most cases, even attributing the work.

After giving hilton what they described as a “myriad of warnings”, X17 filed suit in California District Court late November last year seeking over $7.5 million in damages (51 pictures x $150,000 per work). The case is still pending and appears to be set to continue for some time.

Where Things Are

In April of this year, five more photography agencies teamed up to file yet another $7.5 million dollar suit against Hilton. All totaled, he is now being sued by eight different agencies on much the same grounds as X17. He is also facing a similar suit from Universal Studios for his publication of a topless photo of Jennifer Aniston.

In the X17 case itself, the two sides are 1-1 in the courtroom to date. Hilton’s motion to have the lawsuit dismissed was denied but, in March, he did win the right to keep his site online while the lawsuit was pending.

However, that ruling did not secure Hilton a smooth ride. A few months later in June, Hilton’s site briefly went down as his Australian host, Crucial Paradigm, cut off his access due to the volume of copyright complaints. He has since moved his site to U.S.-based Voxel Dot Net and has resumed his operations there.

Finally, also in June of this year, Perez Hilton filed an unrelated suit against X17 citing what he called “unfair competition”. According to Hilton, the company does not pay its photographers properly and often hires illegal immigrants to keep costs down. X17 has filed a motion to dismiss the lawsuit on the grounds that Hilton has “no standing to sue”.

Hilton has promised to amend that case.

Depositions in the original X17 case were scheduled for the 27th of September. There is no word yet on a trial date.

What’s At Stake

Most directly, what’s at stake is the Internet practice of photo blogging using other people’s images. Sites that frequently find interesting images on the Web and repost them should follow this case closely and read any rulings carefully as copyright and fair use questions from that practice will likely be answered.

Other issues such as parody, and what constitutes it, could also be addressed in this case. This could have direct implications on sites such as lolcats sites, some of which use other people’s photographs with slight modifications to make them more humorous.

It is also possible that the details in the ruling could help set some guidelines for using another person’s image on the Internet, including rules on commercial use, attribution and how to treat published versus unpublished works.

Finally, if the ruling is broad enough, it could expand into other types of content including text, video and audio. This could greatly impact the Youtube crowd, many of whom take copyrighted works and make humorous modifications to the video, and it could impact link blogging services that republish articles, such as Google Reader’s “Share” feature. In both those cases, the practice could be in severe jeopardy should the ruling go to an extreme but could also benefit from a more even-handed ruling that clarifies the murky waters some.

In short, if Hilton loses the case and the ruling is extremely broad, many different services on the Web could have their legality called in to question, including several bloggers have come to rely upon. However, it could also result in a set of best practices for sites to follow letting them use images and other works comfortably knowing that they are not violating the law.

On the other side, rights holders, especially photographers, may finally receive a high degree of clarity as to exactly what constitutes parody of their work and that will give them greater certainty when dealing with perceived infringements.

If ruled well, it could be a win-win for rightsholders and those who want to use their works. If ruled sternly, it could result in the shuttering of some popular services and do little to clarify the current copyright climate.

What it Hinges On

As with most fair use cases, this one hinges largely upon whether Hilton’s use of the photographs was transformative, meaning it resulted in the creation of a new work, or merely designed to replace the original.

Other factors that will be considered, as in every fair use case, is the nature of the infringed work (in this case it was published), how much of it was taken (all of it), was the use commercial (yes) and the effect Hilton’s use had on the potential market for the work (up for debate).

What is Likely to Happen

Fair use cases are notoriously difficult to predict and the outcomes tend to vary wildly from circuit to circuit and even judge to judge. There is simply know way to be certain about which way this case will go, especially considering that neither the plaintiff nor the defendant is likely to garter much sympathy with the court.

However, Hilton doesn’t do himself any favors. His “Copyright Statement” on his site says, in part, the following:

All images on perezhilton.com are readily available in various places on the Internet and believed to be in public domain. Images posted are believed to be posted within our rights according to the U.S. Copyright Fair Use Act.

The argument makes little sense considering that images on the Internet are almost never in the public domain and, if they were, there would be no need to mention the fair use act as the works would have no copyright protection.

Furthermore, the rest of his policy seems to be set up to garter DMCA protection for himself by creating a procedure to request takedown. However, the DMCA process is only designed to protect hosts against infringement contained in “information Residing on systems or networks at direction of users.” It does not offer any defense against infringement that the site owner himself posts.

All in all, it is hard to shake the feeling that Hilton is at a severe disadvantage in this case and that his refusal to work with the agencies involved may not just hurt him, but the Internet at large.

Conclusions

Hilton claims to be fighting for all bloggers, however, there is little doubt that his case is not an ideal one to test this matter with.

The subject matter alone makes this a bad case to take to trial but his actions certainly paint him into an even more devious light. Furthermore, Hilton is in almost no regards your typical blogger. He is far better known, far wealthier and uses far less of his own content than most of us.

Still, for better or worse, this was the case that is going forward and seems most destined for a court ruling. Copyright holders, bloggers and those who seek to reuse content need to follow this case closely as its ruling could greatly impact the copyright landscape on the Web for years to come.

However, watching it may not be an option at all. Like most good train wrecks, it is almost impossible to turn away and the irony of Hilton finding himself in the kind of legal drama he savored reporting on is just too striking to ignore.

We’ll all probably be watching this case, whether we want to or not.

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