I must admit that I enjoy occasionally perusing the celebrity gossip websites. The salacious tidbits on these sites instill a reassuring sense of normalcy and stability in the mundane life of a law student. Pictures of Britney Spears shaving her head and Nicole Ritchie wasting away have a shock value that make one appreciate their grasp on reality and potential for longevity in this world.
One of my favorite sites, perezhilton.com, has gained attention recently not just for real-time updates on Britney and Nicole–but also for its run-in with copyright law. As one of the most popular bloggers on the Internet, perezhilton.com’s Mario Lavandiera has become a prime target for copyright infringement lawsuits. One Hollywood photo agency recently slapped Lavandeira with a $7.6 million infringement suit. Lavandeira was also recently sued by Universal Pictures for posting a topless photo of Jennifer Aniston that was presumably taken from an edited portion of a recent film. Universal Pictures alleges that Lavandeira failed to take down the photo after notice was served in accordance with the DMCA. The CEO of SplashNewsOnline.com (the oh-so reputable photo agency associated with photos of Anna Nicole Smith) also recently claimed that Lavandeira refused to take down pictures from his website after receiving their DMCA notice. It is rumored that SplashNewsOnline and several similar groups are planning to join forces to sue Perez Hilton for the use of their images.
Lavandiera’s attorney claims that the use of photos on perezhilton.com is protected under copyright fair use—arguing that Lavandiera is posting photos on the website for the purpose of commentary and is not “selling” the photos. He also argues that Lavandeira “transforms” the photos by showing only portions the photos, posting photos at a low resolution, or writing/drawing on the photos.
Although I am far from an expert on copyright law, it seems fairly clear that the use of photographs on perezhilton.com and similar websites can’t be entirely covered by the fair use doctrine. The use of these photos seems particularly vulnerable due to the commercial nature of these websites (e.g., perezhilton.com reported receives 2 million unique visitor hits per month and charges a rate of over $9,000/week for ad space), the fact that pictures are often unaltered, and the fact that bloggers provide a direct market substitute that harms the copyright owners’ market. Most of the works appear to be derivative rather than transformative—particularly considering the fact that the site parodies the individuals in the images rather than the images themselves. It would also be difficult to argue that this use of photos advances the goal of copyright—to promote science and the arts.
It is difficult to choose a side in this battle. The agencies fighting to protect their copyrights often represent the less-than-sympathetic paparazzi, while the celebrity gossip sites arguing for fair use are making obscene amounts of money by simply posting pictures and criticizing stars. Regardless of who wins this battle, the outcome will undoubtedly have an impact on a fast-growing industry of celebrity bloggers and blogging in general. And perhaps lawyers will come out the biggest winners...