Zomba Recording LLC (“Zomba”) is a record company that distributes copies and phonorecords of sound recordings performed by music artists, including Britney Spears, Leona Lewis, and Beyonce Knowles. On October 30, 2007, Zomba released Britney Spears’s album Blackout, her first record released since 2003. According to the first amended complaint filed by Zomba against Mario Aramando Lavandeira, the legal name of celebrity blogger Perez Hilton (“Hilton”), Hilton posted copies of tracks of the album on his website www.perezhilton.com. As a result, Zomba was forced to push forward the release of Spear’s album. From August 23, 2007 to October 6, 2007, Hilton consistently posted eight unreleased Britney Spears’ tracks (Perfect Lover, Heaven on Earth, Break The Ice, Everybody, Hot as Ice, Piece of Me, Radar, and Kiss You All Over), as well as one released track (Gimme More). The complaint states that Zomba consistently appealed to the Recording Industry Association of America to demand that Hilton remove the sound recordings from his website and demanded that Hilton’s Internet service provider (“ISP”) disable access to the sound recording. Although the ISP disabled access to the recordings, Hilton “continued to post and re-post unlawful copies” of the sound recordings. For each of the individual sound recordings, Zomba argued that Hilton infringed Zomba’s copyright “ by copying and reproducing plaintiff’s [sound recordings],… by distributing copies…to the public,” and “by performing [sound recordings] publically.” As a prayer for relief for copyright infringement, Zomba asked that Hilton be “enjoined…from infringing…[Zomba’s] copyrights…” and that Hilton “be required to pay plaintiff…damages…[Zomba] has sustained in consequence of [Hilton’s] infringement.
This complaint is of importance to my research paper as it involves Hilton’s use of sound recordings. An analysis of the four factors of fair use clearly weighs in favor of Zomba. For one, there is nothing transformative in Hilton’s posting of the songs. He does not produce a new mix of alter the material in any way, shape, or fashion. This is also the first case in which the nature of the copyrighted work weighs heavily against Hilton, as all but one of the songs was unpublished. As under copyright law the author has the right to control the first public appearance of its expression, Hilton clearly violated this right by posting the tracks before the release. Although the tracks posted did not represent the final release version, the heart of the work was expressed through the “draft” versions on Hilton’s website. Therefore, coupled with the fourth factor, the sound recordings on Hilton’s website substantially effected the potential market, as individuals could substitute the tracks online for the actual album. This conclusion is further substantiated by the fact that Zomba was forced to release the album two weeks earlier in an attempt to retain its economic profit.
At 5:30 A.M. on January 3, 2004, internationally known celebrity Britney Spears married Jason Alexander, an unknown individual, at the Little White Chapel in Las Vegas, Nevada. In November of 2006, Perez Hilton, eager to maintain his claim to be the “Queen of All Media,” published a photo of Jason Alexander on his website, juxtaposed next to a photograph of Britney Spears. Accompanying the photographs was a quote from Alexander, who stated that he and Spears used ecstasy and cocaine. Ken Knight, a professional photographer created the image that Hilton used on March 9, 2000, and registered the photograph with the U.S. Copyright Office on January 9, 2004. In 2006, Knight filed a complaint against Perez Hilton, arguing that Hilton’s use of his photography infringed Knight’s copyright. Knight provides a copy of the registration number to prove validity of his copyright. In the complaint, Knight argued “there was instant and significant demand within the publicity, news and entertainment industries for photographic images of ‘Mr. Britney’” and photos “incorporating those whose lives intersect hers…are licensed and sold for significant fees.” Further, Knight noted that “the subject image was directly hosted by Hilton on his website and was not displayed via a link or frame from any other website.” Knight asked for damages in the amount of $150,000 and an order enjoining Hilton from infringing on his copyright. Hilton moved to dismiss the case for improper service and lack of jurisdiction. Approximately one month after Hilton’s motion to dismiss, Knight dropped the case.
This case is important to my research paper and it involves Hilton’s use of a photograph that became newsworthy, thereby making the fair use analysis more complicated. As opposed to paparazzi that follow current celebrities, this photographer took the photograph four years before the individual entered the limelight. Knight’s lawsuit involved Hilton’s use of the photograph two years after it had infiltrated the entertainment world, thereby reducing its potential licensing value. A quick analysis of the factors of fair use weighs in favor of infringement, largely due to the fact that Hilton did not doodle on the photograph. Hilton’s use of the photograph does not add any new meaning or expression and there is no justification or transformation in its use. The purpose of Hilton’s post was to reveal that Spears and Alexander used drugs. It is evident that Hilton would have relayed the same information had the picture not been there, as the foundation for the post rests on Alexander’s quote. Had Hilton drew references to drug use, a transformation related to his story could possibly be found. Additionally, Hilton’s used the photograph in its entirety, and did not reduce the size by any measure, thereby taking the “heart of the work”. The nature of the work weighs minimally in favor of Hilton, as many had already seen the photo, but the effect on the potential market weighs in favor of Knight, as Hilton’s use presented a direct-market substitute. Had Knight not chosen to drop the lawsuit, I believe the court’s decision would have been in Knight’s favor.