Perez Hilton Lawsuit Commentary – Because you asked JeezeLouise
Copyright infringement is very tricky because the US Constitution protects both copyright and freedom of speech. Therefore, when the two collide it can be complicated.
The balance is such that the Constitution wants to protect the artist (X17) but at the same time wants to limit their copyright because the works (photos) themselves may be useful to the public.
Perez's defense will be “fair use.”
Once X17 has proved they own the copyright, the burden will shift to Perez to prove fair use which involves four factors the court looks at.
1. The first factor is the purpose and character of the use. If the use is commercial in nature, then you are less likely to prevail than if it is for non-profit. If you are using the pics to try and get profit, you may be in trouble, but if profit is incidental, then you may be ok. Further, if you just use a thumbnail rather than the entire photo, you are likely to be ok. Perez will have a tough time with this factor.
2. The second factor is the nature of the work – Is the work unique or is it fact? In this case, I would argue it is more fact than artistic and so would be in Perez's favor.
3. The third factor is the portion of the copyright used. So, if for example it was a group photo and you cropped all but one, you are more likely to prevail. This factor is a tossup
4. The fourth and most important factor is how the posting affected X17. If x17 can prove they were damaged by a reduction in sales or a the number of visitors to their site, then they would prevail. The numbers need to be real and verifiable and not just guesswork.
If the facts are true as reported in the press release, and they may not be, then X17 has a strong case.
I do not usually comment directly on legal matters so the following disclaimer is needed.
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