Everybody loves those ‘funniest faces/dresses/animals’ slideshows, right? There’s no denying there are some classic photos online, and there’s nothing wrong with having a quiet giggle at them over your morning latte. What might not be OK is when those images are copyrighted and unfairly used without permission- but what does “fair” actually mean?

On June 7 2013, American photographer Kai Eiselein filed a lawsuit against Buzzfeed alleging Buzzfeed infringed copyright laws by using his photograph of a soccer player in a collection entitled “The 30 Funniest Header Faces” without permission. Although Buzzfeed removed the photograph after being issued with a takedown notice, Eiselein claims the damage was done as the photograph had already gone viral over the internet. Eiselein is claiming $3.6 million in damages.

This case raises some interesting questions about exceptions to copyright protection in both the U.S and Australia- let’s look at what is “fair”, and where.

“Fair Use” in the U.S

In the U.S, copyright protection is limited by the doctrine of “fair use”, which requires consideration of four factors:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work purpose and character use is paramount.

If it proceeds to trial, the Eiselein case will test the limits of the US fair use defence and its application in the online environment. The case is likely to turn upon the Court’s consideration of the purpose and character of Buzzfeed’s use and in particular, whether Buzzfeed’s use of the work was “transformative”. While the simple republication of a copyright work in the US generally won’t amount to a fair use, the use of a work for a different purpose or in a manner which appeals to a new or different audience may be found to be “transformative”, and the doctrine of fair use is more likely to apply.

But what if Buzzfeed were incorporated in Perth and not New York City? What would the situation be then?

The Australian Position: “Fair Dealing”

Currently, Australia allows for “fair dealing” with copyright works for particular purposes, set out in sections 40 – 43 of the Copyright Act 1968 (Cwth), including research or study, criticism or review, reporting news, parody and satire and seeking professional advice. This is less flexible that the US fair use doctrine- the use must not only be “fair”, but it must be for one of the prescribed purposes for the defence to apply. If the Eiselein case was brought here, Buzzfeed might have a reasonable argument that its use was for the purpose of “parody or satire”, but the more difficult question would be whether the use of Eiselein’s photograph was “fair”.

Moving Forward

“I would love if every image contained some secret metadata and a way to license that image… But the practical reality is that it is pretty challenging, particularly in the web culture of animals and the images that spread on Pinterest and Tumblr” – Jonah Peretti, founder and CEO of Buzzfeed.

The issue with prescribed “fair dealing” is that technology develops faster than legislation, so uses which are outside the scope of the legislator’s imagination fall foul of the law, even though they might be intrinsically “fair”.

As we reported on IP Whiteboard last month, the Australian Law Reform Commission (ALRC) recently recommended an overhaul of Australian copyright law, including the abandonment of our existing fair dealing exception and the introduction of a broad U.S. style “fair use” exception to copyright infringement. . Our Chinese partners say 2013 is the Year of the Snake, but here at IP Whiteboard, we think it might be the Year of Copyright!

Will copyright laws adapt to give internet users a “fair” go? Only time will tell.