A BuzzFeed brouhaha and the state of statutory damages in America

BuzzFeed is a popular “viral news” site that made its name with frivolous cat pictures (the IP Kat purrs in approval) but, more recently, has become a serious media company with famous journalists and a partnership with CNN.

Not everyone, however, is happy about BuzzFeed’s success. Image owners grouse that the site, which is known for “listicles” -- such as "56 Cats who are so happy to see you" – plays fast and loose with copyright. Now one Idaho photographer, Kai Eiselein, has made a list of his own: it's a list of alleged infringements set out in a copyright complaint that demands BuzzFeed pay him more than $3.5 million.

Even by American standards, this is an eye-popping amount, especially as the work in question is no Diane Arbus or Ansel Adams photo -- instead it appears as one of many shots initially published as “The 30 Funniest Header Faces," a rather pedestrian montage of action images from amateur football -- soccer for North American readers. (You can see the photo and a worthy write-up here).

These Kittens hope scouts will make them millionaires too

How, the IP Kat wonders, did Mr. Eiselein arrive at such a damages figure? A look at the complaint reveals the self-represented photographer did so by pushing the outer limits of America's statutory damages regime as well as the doctrine of contributory infringement. More particularly, Eiselein tracked down dozens of websites, many in countries like Russia, that replicated the BuzzFeed story. And since BuzzFeed actively encourages its readers to share content through social media channels, reasoned Eiselein, BuzzFeed is liable for its initial infringement and these other infringements.

Where to begin? As the contributory infringement theory in this case appears likely to fail under the case law, this Kat will focus instead on the peculiar nature of America's registration scheme which awards a potential jackpot to those who avail themselves of it and a pittance to those who do not. The situation is well highlighted by Eiselein's complaint: 41 of the alleged infringements took place before registration - yielding actual damages (in the photographer's eyes) of $550 each, or $23,500. On the other hand, 23 other alleged willful infringements took place after Eiselein ran to the Copyright Office -- leading him to claim statutory damages of $150,000 apiece, or $3.45 million (gadzooks, says Merpel, enough to buy a personal football pitch and a first-class header coach too).

The nature of this all-or-nothing regime is well-explained by the learned Bill Patry, whose retired blog is still a remarkable resource. Here is some of what Patry says:

Section 412 of the Copyright Act acts as a brake on statutory damages awarded under Section 504(c) ... For United States works, since registration is a prerequisite to protection, it happens on occasion that acts of infringement occur both before and after registration. Section 412, however, is unrelenting: if the copyright owner doesn’t register before any act of infringement occurs, no statutory damages may be awarded, period. [...] 

The [9th Circuit] court of appeals looked to other court opinions and what it perceived to be the purposes of the statute: (1) “to provide copyright owners with an incentive to register their copyrights promptly..."

Patry's analysis is sound and so too is a policy that encourages prompt registration (and includes a 3-month grace period). Alas, good policies do not guarantee good results. As it stands, only large companies (and unscrupulous copyright trolls) are likely to use, and abuse, the statutory regime. Meanwhile, smaller photographers and authors, whose works are increasingly used or "shared" without permission are left without a practical means to collect anything at all -- for practical purposes, they will typically be too slow to register, and will then discover that the process of seeking actual damages is burdensome and expensive in relation to what they can expect to collect.

(See here for the trademark travails of BuzzFeed's star employee, Grumpy Cat).