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.
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In February of 2007, Universal City Studios Productions (Universal Studios) filed a complaint against gossip blogger Mario Lavandeira (p/k/a Perez Hilton) alleging copyright infringement. According to the document, Universal Studios produced and distributed the romantic comedy “The Break Up” starring Vince Vaughn and Jennifer Aniston. Universal Studios filed an application with the U.S. Copyright office to register the motion picture. During production or post-production of the motion picture, Universal Studio alleges that certain images of Jennifer Aniston were illegally copied, including a topless movie still of the actress. Obtaining this image (provided as “Exhibit A” in the complaint), Perez Hilton posted an “identical reproduction” on his website. Universal Studio charges that Perez Hilton “reproduced, distributed and publically displayed [Universal Studio’s] copyrighted images…in violation of [Universal Studio’s] exclusive rights…under 17 U.S.C. § 106.” Universal Studios sought an order from the court “enjoining Defendants from any further infringement” and requested the “U.S. Marshall to seize and impound all items…which infringed [Universal Studio’s] copyrights.” Responding to the lawsuit, Perez Hilton’s attorney Bryan Freedman stated, “[Hilton] used [the photograph] for the purpose of news commentary and satire as he often does with photographs. That constitutes fair use and there's nothing illegal or improper with that use."
The complaint and Freedman’s response are extremely useful in determining whether or not Perez Hilton’s use of a movie still constitutes fair use. First, is should be noted that Freedman chose the word “satire” to describe his client’s use of the photo, rather than “parody.” This puts his client in a more difficult position, as it is harder to proclaim fair use for satirical works. When posting the image on his website, Hilton drew three white teardrops under Aniston’s eyes, claiming that this constitutes a fair use as it transforms the work. Although the case was settled out of court, a quick analysis of the four factors, which will be elaborated on in my research paper, clearly demonstrates that these few marks do not constitute a fair use of the movie still. There is nothing transformative in Hilton’s expression of the photograph, as no new meaning was added to the work. The purpose of Hilton’s use was simply to display a topless photo of a famous actress. The commentary he added below, simply stating that the picture was a topless photo of an actress, was completely unrelated to the three teardrops. Had the commentary discussed Aniston’s highly emotional nature, Hilton would have a better claim of fair use as he transformed the picture to match his opinions. Furthermore, in regard to the nature of the work, the fact that that photo of Aniston was not used in the final cut of the movie weighs against Hilton, as Universal Studios has the right to show the first public appearance of the movie still. The third factor, amount and substitutability of portion taken, does really not weigh in favor of one party, as the “newsworthy” significance of the movie still and the alleged satire requires the whole movie still to be used. The final factor, the effect of use upon the potential market, significantly weighs in favor of Universal Studios. As Universal Studios held the copyright to this still, it is possible the studio could have licensed the image for a substantial fee. Overall, Hilton’s use of the movie still as the news story does not constitute a fair use as he did not transform the still.
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.
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.
Seeking summary judgment on the issue of the copyright claim, Perez Hilton, in X17 Inc. vs. Mario Lavadereia, filed a memorandum of points and authorities in support of motion for summary judgment, or in the alternative, partial summary judgment. According to the document, “X17’s copyright infringement claim fails because [the court] lacks subject matter jurisdiction.” Hilton stressed that the Copyright Act provides that "no action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made,” and therefore, “an invalid registration nullifies the federal court’s subject matter jurisdiction.” In it’s applications filed with the U.S. Copyright Office, X17 identifies itself as the author and that the photographs were a “work made for hire,” but does no state the actual photographer or reference any agreement between the photographer and the agency. As a latch ditch effort, X17 created assignment agreements as a “litigation strategy.” In the document, Hilton declares that none of the photographers were X17 employees and that he and X17 were not competitors, both claims substantiated with testimony of the photographers and principals of the photography agency. Hilton asserts, “Summary judgment should be granted on X17’s copyright claim because the undisputed facts demonstrate that’s its purported copyright registrations are invalid.” When X17 represented itself as the owner of the photographs on the basis that they were “works for hire,” it must prove that the “work was prepared by an employee within the scope of his or her employment” or a “certain work 'specially ordered of commissioned.’” Hilton declares that the photographers were not employees of X17 and that there was no agreement between the agency and the photographer in writing that the photographs were “works for hire.” Additionally, the document purports that the three-month grace period to register some of the photographs after first publication had passed, and therefore, X17 could not meet the requirement for statutory damages and fees.
Hilton’s claim that material misrepresentations in X17’s copyright applications invalidate the registrations serves as an alternative defense to his fair use claim. For my research paper, this document allows me to investigate whether or not X17’s copyrights are valid and to dissect the relationship between the paparazzi agency and the photographers. This is the first document that introduces the term “work for hire,” as X17 maintains that they were assigned the rights to the photographs and commissioned the works. However, if Hilton was able to successfully prove that X17 does not hold valid copyrights to the photographs, his use of the photographs, newsworthy or not newsworthy, with doodles or without doodles, would not constitute infringement, as the photographs may belong in the public domain. Therefore, photography agencies such as X17 should ensure the proper protection of their photographs, and perhaps change their business model from “independent contractors” to employees to properly classify the photographs as “works for hire.”
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.
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.
On www.perezhilton.com, Mario Armando Lavandeira Jr., better known as Perez Hilton, posts gossip and news stories about celebrities. The self-declared “Queen of All Media” posts up to twenty-five stories a day, and his website receives between two and four millions unique visitors per day. On his website, Hilton’s posts mostly consist of three parts: a title for the post, a photograph of a celebrity, and a news story or commentary. Additionally, on most of his posts, Hilton uses a computer program that allows him to doodle on the photographs with virtual white paint. His doodles are often sexually explicit, as he draws phallic symbols on celebrities’ faces and bodies. In some occasions, Hilton substitutes doodles with virtual white handwriting over the photographs, often consisting of sexual or exclamatory statements. To acquire the photographs, Hilton navigates entertainment websites, mostly those of photograph agencies, and copies the image for his own use. Along the right side of his website, Hilton displays advertisements serviced by Blogads; it has been reported that Hilton earns up to $110,000 per month in advertising revenue. On the left side of his website, Hilton offers his “Perez by phone” service, in which monthly subscribers receive pre-recorded messages from Hilton regarding breaking news stories, as well as a link to his clothes fashion line. In another section of his website, Hilton includes a copyright statement on, in which he declares, “All images on perezhilton.com are readily available in various places on the Internet and believed to be in public domain. Images posted are believed to be posted within our rights according to the U.S. Copyright Fair Use Act.”
Perez Hilton’s website is the cornerstone for my research project, as my paper investigates whether or not his use of copyrighted photographs constitute a fair use. The doodling, the photographs, as well as the news commentary, will offer the substance needed to evaluate his fair use claim. An analysis of his website reveals that there are, in general, five different types of posts that constitute a mix of newsworthy and not newsworthy photographs, photographs that contain and do not contain doodling, and news commentary that does or does not relate to the photograph used. These distinct blog posts complicate my research, as it is important to determine if any or all of the uses constitute a fair use. The existence of his telephone service, his clothing line, and the multitude of advertisements confirm that Hilton makes a substantial profit from his website. The website’s profitability will be a factor in determining the appropriate damages awarded to the photographs’ copyright holders if Hilton’s use of the material is determined to be infringement. Finally, Hilton’s “Copyright Statement” on his website appears to reveal a flaw in his affirmations. For one, the notion that all the images he uses are “readily available on the Internet” and are believed to be in the “public domain” is nonsensical. The next part of his statement, that images posted fall within his rights under the fair use act, completely contradicts his first statement. If Hilton believes the images he used were in the public domain, there would be no need to establish a fair use, as he would have every right to use the photographs. This flagrant inconsistency, in my opinion, immediately weakens his claims of fair use, as he obviously does not completely understand the principles behind it.