The lawsuit, filed in federal court in Manhattan by photographer Kai Eiselein, alleges that BuzzFeed took a photo from Flickr and incorporated it into a slideshow without his permission. BuzzFeed then invited users to share the slideshow, resulting in distribution of the photo to dozens of sites, Eiselein alleges. The lawsuit was first reported by Paid Content.
The Idaho-based Eiselein, who served as an editor of a now-defunct weekly newspaper from 2004 through 2010, alleges in his lawsuit that Getty images wants to license the photo. But Eiselein says in his complaint that he hasn't agreed, due to his belief that “the marketability of the image has been irretrievably damaged by the scope of the infringement.”
He also says that he asked BuzzFeed in 2011 to take down the image. Eiselein alleges in his lawsuit that BuzzFeed did not remove the image from its servers, and that users continued to distribute the photo after he complained to the site.
BuzzFeed reportedly takes the position that aggregating photos for a thematic slideshow is transformative, meaning it's likely to be protected by fair use principles.
Eiselein disagrees. “Making a 'listicle' is no more creative than listing phone numbers in alphabetical order, and therefore not transformative,” he says in an email to MediaPost.
Questions about whether aggregation is a fair use also have come up when publishers aggregate news stories. But publishers that do so typically use only a small fraction of the story, which helps them to argue that they're protected by fair-use principles. By contrast, sites that use photographs in slideshows tend to use 100% of the photo.
Jeff Greenbaum, an advertising lawyer with Frankfurt Kurnit Klein & Selz, says the lawsuit could result in some “significant guidance” on aggregation by the courts. “A lot of online platforms are proceeding under the notion that what they're doing is a fair use, but there haven't been a lot of challenges to that,” he says. “Advertisers are going to be looking at this complaint very carefully, because it will impact their decision about whether to participate in platforms like this.”