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 A lawsuit by a Los Angeles photo agency known for bagging images of celebrities in personal or embarrassing moments is suing gossip-blogger-turned-celeb Perez Hilton, claiming that he poached their images on his Web site, PerezHilton.com. Perez says it's a paparazzi publicity stunt.
"Honestly I don't think what I'm doing is wrong, illegal or unfair," says Hilton, whose real name is Mario Lavandeira.
He's ready to defend himself, he says, "for myself and for bloggers everywhere."
The case highlights the precarious but symbiotic relationship between bloggers and the entertainment industry. But, as the $7.6-million federal copyright infringement lawsuit filed by the Los Angeles photo agency X17 Inc. against Hilton shows, that relationship can quickly sour when money enters the picture.
X17 claims that Hilton's use of their images has hurt the company's bottom line and say that paying clients have pointed to the exposure the shots get on Hilton's site as a reason for canceling their order.
The suit says Hilton used 51 photographs without permission, payment or credit, including images of a pregnant Katie Holmes, Kevin Federline pumping gas and Britney Spears showing her privates.
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HAPPIER TIMES
X17 vice president Brandy Navarre says there was a time when the company was working with Hilton, letting him use watermarked images in exchange for links back to its Web site.
But Navarre says she was constantly having to remind him about the links and watermarking.
"We gave him literally six months to figure it out, and he didn't," she says. "Since then and since we sent him the cease-and-desist, he has continued to publish our images frequently without credit, watermark, without anything."
Hilton denies that there was an agreement.
"They're lying and the truth will come out in a court of law," he says. "They've put out a lot of misinformation about me and if I wanted to be nitpicky I would sue for defamation because they're spreading lies about me and smearing my reputation."
On Monday, several pictures on perezhilton.com resembled those posted on X17's Web site http://www.x17online.com/ , including two identical ones of Nicole Richie grocery shopping. The only difference was that those on X17's site bore a watermark, while Hilton's didn't.
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LEAKS AND PEEKS
Just as music gets leaked ahead of official release dates, celebrity photographs worm their way onto the Internet before they're supposed to.
X17 sends all of its images to their agents around the world as well as to magazines and television clients.
"I've got more than 80 servers around the world to which I'm sending my entire production and within that process somehow people are getting these images, posting them on message boards and fan sites," she says. "There are certain Web sites, certain galleries, message boards that are kind of known for posting our images, other agency's images all in high resolution."
Navarre says she has shut down some of the message boards by contacting their hosts and warning that they're in violation of the law.
But Hilton says he's not chasing or stealing any photographers, he claims that the photographs are coming to him.
"Some photo agencies love me and send me their pictures saying, 'Please, put this picture on your Web site' because those photo agencies are smarter and they realize that contrary to what 17 is claiming, having their picture on my site helps to sell it. It doesn't hurt or cannibalize their sales."
Hilton says he's not doing anything different from other bloggers.
asap contacted Gawker Media's editorial chief Lockhart Steele to find out how this blogging empire navigates copyright issues. He declined to comment and instead pointed us online to the company's image use policy. Terms of use include "Images so widely distributed on the Internet that they are deemed to have become part of the public domain." And, "Images used to illustrate a newsworthy story under the Fair Use doctrine."
The Fair Use doctrine outlines limitations in copyright law. Fair use is generally judged by four possible scenarios:
1. The purpose/character of its use. Is it used for a commercial venture? Or maybe an educational one?
2. The nature of its use. If it's political or historical, the defense may have a stronger case. If it's entertainment, not so much.
3. How much of the work was used. Is it just a quote from a book or whole chapters?
4. Will this use affect the value of the copyrighted work?
So what do you do if you think Gawker has your swiped photo on its site? It's policy reads: "If you think we have published an image or text that infringes your copyright, we will address your concerns; however, if the image falls into one of the categories listed above, we believe that our use of the image is legitimate and we will not remove it from the site."
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SO WHAT IS THE ANSWER?
Finding the right balance between free speech and privacy or intellectual property rights has always been a tricky one, especially when it comes to the Web.
"The Internet is sort of a strange thing because there's no physicality to it -- you can't grab it, you can't feel it," says entertainment lawyer Bill Abrams. "And the sensitivity over fair use always tends to come in when something is being monotized or commercialized. Fair use protects things that tend to be non-commercialized."
Abrams believes the X17-Hilton ruling will most likely go the way of the Napster case.
"It's not fair use, it's not social commentary, it's not newsworthy, it's economic exploitation," he says.
Copyright attorney Paul Supnik says that the X17-Hilton case could fall in the news category. Not necessarily important news, but news nonetheless.
"Though I would think that if you had a highly political related photograph, that might carry a lot more weight than something in the celebrity curiosity genre," he says.
Supnik points to the value doctrine as the one that might play a big part in this case.
"If a tabloid was willing to pay a fairly sizable sum for a particular photograph of a major celebrity's new baby and it's the first photograph out there and you put it out first or second, immediately thereafter, you are taking a big sting out of the value of the photograph..." he says. "That to me would suggest that fair use might not exist. That the fair use defense might be rejected."
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Jaime Holguin is an asap reporter in New York.
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