The suit (pdf), which asks for over $7.5 million in damages, cites 51 alleged cases where Hilton posted photos owned by X17 on his blog and alludes to the possibility of finding even more. X17 is asking for the maximum damages allowed for each incident of copyright infringement, $150,000. A video of Hilton being served is already available.
This is not the first time Hilton has drawn fire for his use of other’s photographs. A photographer approached him in October outside of an Xbox 360 party, that in turn led to a verbal altercation. To make matters even worse for Hilton, at least one article has alludes to other agencies gearing up to file similar suits.
Hilton, who does not charge for his site but earns an estimate $9,000-$16,000 weekly per ad, has said that he intends to fight the lawsuit and will respond to the allegations “when we (Perez and his lawyers) have the opportunity to review the materials.”
A Bullseye on His Back
Many bloggers, especially gossip bloggers, use photographs from tabloid agencies like X17 without any reprisals. This has created a great deal of speculation as to why Hilton was targeted, Without a doubt he was one of the biggest fish, both in terms of money and traffic, but that alone doesn’t seem to explain everything.
According to John Tehranian, the lawyer representing X17, Hilton was singled out due to his lack of cooperativeness and how boldly he infringed. “He’s been brazen and unapologetic,” Tehranian said. “It’s as simple as a right-click (on a computer mouse) and a ‘save as,’ and he reproduces them on his Web site.” Others allege that Hilton has ignored several cease and desist letters and even
a licensing offer to use the works for just a link to the agency’s Web site.
Hilton, on the other hand, contradicted those statements by saying, “If I have used their photos in the past and they’ve contacted me, I’ve taken them down. That’s procedure,”
Most likely though, the decision was based largely on money. X17, most likely, decided that the potential for financial reward outweighed the risks and expenses of filing suit. That hints at both the severity of the alleged infringement, how sure X17 is of victory (rightly or wrong) and the potential damages X17 fears being done to its bottom line.
In short, it’s a sign that big name bloggers need to be more careful than smaller ones as their deeper pockets and larger audiences make them easier targets for copyright litigation.
Though Hilton’s attorney will be ultimately responsible for his defense, he doesn’t seem to be offering much assistance to himself. In one article, he references the Digital Millennium Copyright Act (DMCA) as offering him protection. However, as anyone familiar with the DMCA will already know, the DMCA protects Web hosts and not the bloggers that use their service. Unless Hilton is operating purely as a middleman for other
people’s work and has no editorial control over it, which does not appear to be the case, the DMCA does not apply to him in that regard.
However, Hilton may have stronger defenses under fair use and parody law. Though fair use may run into issues due to the lack of attribution and the overtly commercial use of the work, he does parody the images somewhat by drawing on them and does use them to create new works. The question will likely come down to if the use is transformative or competitive to X17s. On the surface, that appears to be the case, but there are many unanswered questions at this time.
This has lead Duncan Riley to worry about “chilling effects” that might stem from this case if Perez loses including a “raft of similar lawsuits against blogs and blog networks who use photographs in a similar way.”
However, while this is definitely a case to watch, it is unlikely that it will ever reach a courtroom. Thus, we will unlikely ever get a definitive answer to these very difficult and intriguing questions.
Though it is impossible to know where this case is going or where it will end up, it is a general rule that these things rarely make it to the point of a trial. It’s in the best interest of both parties to settle things quickly and move on.
Most likely, that is exactly what will happen. Hilton and his lawyers will probably hammer out an agreement so that he can continue to use X17”s photographs on his site, probably with some linking obligations and possibly some payment. They will also settle out the prior infringements for a sum that doesn’t bankrupt Hilton but still pleases X17.
In short, it’s more likely that X17 is wanting to turn Hilton into a paying customer than bankrupting him. Even if they are hostile right now, both sides have more to gain by working together, it’s just a matter of finding out on what terms.
Though this will definitely be a case to watch, it’s impact on other bloggers will most likely be minimal. Even if the case does make it to court and Hilton loses, most bloggers will be able to continue as is. The judgment will likely be based upon the things that Hilton does outside the norm of the blogging community, including the profit, lack of attribution and refusal to remove works when asked. If bloggers attribute properly, remove works when asked and don’t make enough money to cause a company
like X17 to target them, it is unlikely they will face any major legal challenges in terms of lawsuits
However, bloggers will continue to face DMCA notices and cease and desist letters. That has been going on for some time and is not likely to change due to the Hilton case.
Still, it will be very interesting to see how this case develops and what the outcome will be. Both the gossip world and the blogging community will be watching.