In an article published in the Cardoza Arts and Entertainment Law Journal, Eaton O’ Neill, a J.D. Candidate at the Benjamin N. Cardozo School of Law, considers whether Perez Hilton’s use of X17’s photographs constitutes a fair use. As the cornerstone to his argument, O’Neill classifies Hilton’s use of the photographs as a satire, thereby affording a harsher evaluation to the Hilton’s claim of fair use. In a large portion of the article, O’Neill discussed landmark parody/satire cases, including Campbell v. Acuff-Rose Music, Inc., in which the Supreme Court determined that a rap music group’s parody of “Oh, Pretty Woman” constituted a fair use because it was “unlikely to serve as a substitute of the original” and that “no more [of the song] was taken than necessary”; Suntrust Bank v. Houghton Miffin Co., in which the Court of Appeals for the Eleventh Circuit vacated a preliminary injunction that barred Houghton Miffin Co. from publishing “The Wind Done Gone,” a parody of “Gone With the Wind,” because the parody would not “substitute nor ultimately displace revenue” of the original; and Dr Seuss Enters., L.P. v. Penguin Books USA, Inc., in which the Court of Appeals of the Ninth Circuit upheld the preliminary injunction barring Penguin Books USA from publishing “The Cat NOT in the Hat!,” a satire on the O.J. Simpson trial, because Penguin Books could not provide “justification for the very act of borrowing.” After discussing these landmark cases, O’Neill professes that he believes Hilton’s use of X17’s photographs represented a satire, and not a parody. He notes that a satire “employs the original work as a vehicle for commenting on some individual or institution and not on the work itself.” Hilton does not “aim his modifications to comment or criticize the original photos,” O’Neill adds, “but targets [his] commentary or criticism…on the celebrities themselves.” Evaluating the four factors of fair use from the perspective the Hilton’s use constitutes a satire, O’Neill proclaims that “the only reasonable outcome of the dispute between X17 and Perez is a finding of copyright infringement.”
This source is useful in my research paper as it presents a unique legal analysis in classifying Hilton’s work as a satire. According to the cases O’Neill provides in his article, if Hilton’s use were deemed a satire, he would have to prove justification for why he used a given photograph, as opposed to any other of the celebrity. Therefore, it would appear extremely difficult for any of Hilton’s uses of X17’s photographs to constitute a fair use. However, I believe justification in a selection of a specific photograph could be made when Hilton uses it to enhance his commentary. For example, if Hilton breaks news that Lindsay Lohan signed a major endorsement deal, and uses a photograph of her shopping and adds hundreds of dollar signs and fifteen more shopping bags in her hands, he transforms the photograph for the purpose of his news commentary. His justification is that he selected a photograph where Lohan was shopping, as opposed to her partying at a nightclub. Futhermore, I disagree with the declaration that all of Hilton’s uses are satires, as he may be targeting the photograph itself. For example, if a photographer captures a celebrity in a compromising position, and Hilton draws in a phallic symbol, Hilton can claim that he is parodying the position of the subject in the photograph itself, rather than the individual it portrays.
26 Cardozo Arts & Ent LJ 535
X17 is a photography agency that “owns and operates one of the world’s leading archives in celebrity-related photographs.” Perez Hilton posted reproductions of X17’s work, and often drew sexually explicit “satirical” doodling on the pictures. Using more than fifty-one reproductions of X17’s images, X17 filed a complaint alleging copyright infringement. According to the complaint, “X17 has licensed the rights to reproduce its copyrighted works…to hundreds of newspapers, television stations and other prominent media outlets throughout the world.” X17 alleges that Hilton used “timely photographs covering breaking news events” on his gossip written website that “receives 2.5 millions viewers” daily and “generates thousands of dollars per day in advertising revenue from it website. Some of the photos included “Britney Spears driving her son on her lap,” “Britney Spears exposing herself,” and “Cameron Diaz in a beige sweater out golfing.” In the case of all fifty-one photos, X17 argues, “The photographs were virtually identical reproductions of copyrighted work. [Hilton] thereby reproduced X17’s copyrighted works in copies, distributed copies of the copyrighted works, and publically displayed copyrighted works…in violation of exclusive rights under 17 U.S.C. § 106 that X17 holds in the photographs.” As a prayer for relief, X17 asked the court “for the entry of an injunction providing that [Hilton]…be permanently enjoined” from using X17’s photographs. Additionally, X17 asked for “actual damages for copyright infringement,” “a seizure order directing the U.S. Marshall to seize and impound” X17’s copyrighted photos in Hilton’s possession, and “for a disgorgement by [Hilton] to [X17] of all profits” derived from Hilton’s use of the photographs, among other damages and fees.
This complaint is useful in my research paper as it involves Hilton’s use of newsworthy and not-newsworthy copyrighted photographs. In the document, X17 establishes that hundreds of gossip tabloids and magazines rely on its photographs, which break news events. In the case of these photographs, it would be hard for Hilton to proclaim fair use. A quick analysis of the factors of fair use reveals that Hilton’s doodling on the X17’s image of Britney Spears driving with her son on her lap does not transform it in any way, as his news story simply refers to Spear’s reckless endangerment of her child. Hilton uses the image in it entirety and if posted on his website immediately, it would destroy the licensing value of the photograph. Therefore, Hilton’s use of a newsworthy photograph, in which he doodles on the photograph, does not constitute fair use. This is the same if Hilton did not doodle, because if Hilton can use the image and write his own news story below discussing what's in the photo, and this was determined to be a fair use, why would tabloids ever license a photo if they could also claim fair use? In that case, why would paparazzi or photographers exist at all if they could not license their photos? Finally, Hilton’s use of a non-newsworthy photograph, such as Heather Locklear eating, may be deemed a fair use if he transforms the photograph to match his news story. Overall, this source allows me to evaluate different situations of Hilton’s use of photographs and whether or not his use of copyrighted images constitutes a fair use.
In this post from “The Blog Herald,” Jonathan Bailey proclaims that the X17, Inc. vs. Perez Hilton case has the “potential to drastically impact bloggers and small webmasters." Bailey cites the copyright cases against Hilton, including the Universal Studios suit involving a topless photograph of Jennifer Aniston. In discussing the X17 case, he purports that the blogger and the photograph agency were at a stalemate, as Hilton’s motion to dismiss the suit was denied, but he was allowed to “keep his site online while the lawsuit was pending.” However, Hilton’s site temporarily went down when Crucial Paradigm, his Australian web host, blocked Hilton’s access “due to the volume of copyright complaints,” and subsequently, he moved his site to the Voxel Dot Net server. The blog post discusses a separate lawsuit filed by Hilton against the photograph agency, an obvious vindictive move, “citing what [Hilton] called unfair competition.” Hilton argues that X17 “does not pay its photographers properly” and “hires illegal immigrants” to maintain low costs. In discussing “what was at stake,” Bailey asserts that the decision could establish guidelines for using others photographs on the Internet, especially in regard to published versus unpublished works. He believes that if the ruling is broad enough, the decision could “impact the Youtube crowd, many of whom take copyrighted works and make humorous modifications to the video, and it could impact link blogging services that republish articles, such as Google Reader’s “Share” feature.”
For the purposes of my paper, this blog post introduces information not contained in the legal documents filed in court. The fact that Hilton’s server terminated his service is representative of the highly contentious nature of the X17 lawsuit. Although the case only involves one individual, Hilton seems to be at the forefront of the blog world; therefore, the outcome of this case may have broad implications for the whole cyber world. The decision of the lawsuit may elucidate what constitutes a parody in regard to photographs. Small alterations to the photographs, in the form of doodles, may be deemed a satire, rather than a parody, by a court of law, thereby making it harder for Hilton to claim fair use. Additionally, the “unfair competition” lawsuit referenced in the blog post may reveal Hilton’s desire to retaliate against X17. He obviously lacks standing in a lawsuit filed that alleges that X17 exploits its photographers, some with “criminal backgrounds and gang affiliations.” The lawsuit is clearly a public attack aimed at damaging X17’s reputation. Finally, this blog is the first source to reference Hilton’s procedure for a takedown request. The existence of this procedure on his website seems backwards, as Hilton is attempting to secure DMCA protection for himself. However, Section 512 of American copyright law grants protection from monetary damages if “the transmission of the material was initiated by or at the direction of a person other than the service provider.” In this case, however, Hilton himself is posting the copyrighted pictures on his website, not an third-party user, so he affords himself no DMCA protection.