Thursday, November 30, 2006

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.

DISCLAIMER - The Information is not intended to constitute, and does not constitute, legal advice. Moreover, the Information is not intended to constitute, and does not constitute, a solicitation for the formation of an attorney-client relationship; no attorney-client relationship is created through your use or viewing of the Blog. Anyone reading the Information should not act on it without first seeking legal counsel. Further, the Information is general in nature, and may not apply to particular factual or legal circumstances.

15 comments:

JeeezeLouise said...

Thanks, Ent. Lawyer. This should be another interesting test of copyright vs. the Internet. However, I read somewhere that at least one photo agency says Perez posted pictures of their's BEFORE they'd been put online anywhere. If that's true, that would be a whole 'nother can of worms.

ent lawyer said...

If Perez posted pics before they went online, he may have received them from the original photographer. If that is the case, then the photographer and agency can fight, but it would leave Perez out of it.

Anonymous said...

What makes Perez guilty is that this has been going on a long time. They gave him many, many opportunities to do the right thing and he just spit in their faces. As for the multiple periods, I'm quite a fan and do that myself. I was told once that they should never number more than 3...and I did count 4 for you in some places, so the true period geeks might make fun of you if you don't stop that.

JeeezeLouise said...

"Period geeks"? ;)

This probably would not have gotten to lawsuit stage except for Perez's arrogance. You can go back and find email exchanges and videotaped confrontations he's had with the razzi where he's quite literally told them to get f**ked.

Here's one with X17:

http://www.jossip.com/gossip/paparazzi/unlike-the-real-paris-hilton-perez-wants-pictures-to-be-free-20061017.php

And with a photog:

http://www.tmz.com/2006/10/26/perez-to-photog-you-dont-know-sh/

Anonymous said...

Lee Rudnicki

Anonymous said...

Is his site down?

I get some then it goes to the back page.

Anonymous said...

Mario may make some mistakes but he gets a lot flack because he's so popular. He was very kind to me when my family was going through some personal issues and doesn't flaunt it. He has a very good side. I'm by no means a friend of his, just someone who has read his blog and e-mailed him a few times over the years. I just want to stick up for him once in a while as so many people like to poke fun at him.

Anonymous said...

THANK GOD! Someone has got to make him take responsibility for his actions. He NEVER takes down photos he is asked to take down...but he does post the cease and desist letters and laughs.
AND he is soooo disgusting!

btw, the "three periods" has a name: elipses

Anonymous said...

Elipses! Who says you can't learn anything from gossip blogs?

JeeezeLouise said...

Anonymous 10:23 p.m.

You'd probably not think Perez is such a nice person if you were a gay D-lister.

http://www.afterellen.com/column/2006/11/quote-perez.html

Loleia said...

Lol! Loved the disclaimer ;)

Anonymous said...

jeeezlouise: You weren't referring to Jodie Foster as the gay d-lister in the "After Ellen" column were you? Jodie Foster D-lister? Two Oscars?

Anonymous said...

Anonymous 10:23 PM here...

jeeezelouise - I do agree with you about Perez's outing habits. I have two gay siblings and life is difficult enough sometimes due to their sexuality without adding the possibility of someone outing them. Without defending him for outing people, I think the gay community would be much better served if more public figures came out but I completely disagree with Perez's tactics.

However, I do feel people have good in them, too, and I know that Mario has a kind heart. He was exceptionally kind to my family and he doesn't even know me other than someone who has e-mailed him a few times over the years. I didn't ask for anything, just mentioned a situation my young son was going through. I think that he probably helps other people and causes and does so anonymously which is all the more admirable.

JeeezeLouise said...

My D-list comment was actually referring to Clay Aiken, who appears to be bearing the brunt of Mario's very foul mood today.

Anonymous said...

Perez is a pig. If he did something nice it must have been during his self-loathing period when he used to blog about how depressed he was. He wants people to care about his depression but he creates it for people who have done nothing to hurt him. Its "interesting" to me how he targets people such as Lance Bass or Clay Aiken, but he doesn't have a thing to say about more powerful players who he thinks might be able to help him. (Anderson Cooper etc, who would never help him doesn't count..think SC for one)He makes me sick and I hope he goes down HARD, and not in the way he likes to go down hard.