Yesterday, the Atlantic’s Alexis Madrigal published a piece asking how BuzzFeed acquires the rights to the many, many photos they use for their explosively viral photo lists. The answer: Generally, they don’t.
BuzzFeed does pay Reuters, the AP, and Getty for rights to their photo libraries. But many BuzzFeed images are found not in those libraries, but on sites like Tumblr, Pinterest, and 4chan. Those sites are protected from copyright lawsuits under the Digital Millennium Copyright Act, which says websites are not responsible for unlicensed images published by their users. BuzzFeed, like Slate, is not immune from lawsuits under DMCA. As a consequence, BuzzFeed proprietor Jonah Peretti defends his site’s use of copyrighted images by arguing that they’re protected under “fair use.”
Fair use is a notoriously murky legal term. To explain the fair use exception as Peretti understands it, Madrigal quotes Wikipedia:
To justify the use [of copyrighted material] as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.
Peretti believes that BuzzFeed’s photo lists are transformative. He and Madrigal discuss a set of photos of disappointed animals, none of which is listed with any credit information. By putting the list in a particular order and adding funny captions to the photos, Peretti says, BuzzFeed has met the fair use standard of “fundamentally transforming” the nature of the images. That’s not just an otter. It’s an otter with human emotions, specifically the emotion of frustration at not being able to finish 1,000-plus pages of David Foster Wallace’s writing.
Is that really fair use? Has the new caption transformed the photo? Has that photo advanced “knowledge or the progress of the arts through the addition of something new”?
From a legal standpoint, “transformative” has generally been understood to involve alteration of the actual underlying work. For example, it could be argued that a photo illustration that changes an image in an interesting way is transformative. Shepard Fairey was sued by the AP for copyright infringement when he used an AP photo he found on Google to make his iconic Obama “Hope” poster. But he had a strong argument that the changes he made were, in fact, transformative. The illustration Fairey created was so distinct from the original photo that the AP had not claimed it as its own until another photo journalist tracked it down. (Fairey and the AP ended up settling the case.)
Adding a funny caption, however, has not been viewed as transformative. “I would expect an interesting response from a judge if I argued that putting a caption on a photo was transformative use for the purposes of fair use,” says UVA professor, copyright expert, and occasional Slate contributor Thomas Nachbar. Nachbar adds that a fair use argument doesn’t simply come down to whether something is transformative—it can also depend on whether the use is commercial or nonprofit and educational, as well as the amount of the original work that’s being used and the likely effect the use has on the original work’s value. A legal proceeding would have to consider all those factors together.
In his interview with Madrigal, Peretti says he “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.” But if BuzzFeed’s definition of fair use is a legally sound one, then why would they need to get the go-ahead from any copyright holder at all? “It sounds more to me like a business-y claim than a legal claim,” Nachbar says. And that business-y claim doesn’t seem to hold legal water: According to the 1976 Copyright Act, you can’t republish something and claim a new copyright just because a copyright owner is difficult, or even impossible, to find.