Massachusetts Legal Developments Blog

Suit Tests Limits of Copyright Fair Use as Applied to Online Listicles

One of the protections copyright law affords to a work’s copyright holder is the ability to exclude others from using the work. Under the Copyright Act, a “derivative work” is one that is basically derived from the original work—these types of works are protected, and, in general, only the holder of the copyright has the right to control them. Unauthorized derivative use of a work is considered to be copyright infringement. Transformative works are different. These works fall under the exception in copyright law that allows for fair use of copyrighted material, meaning that people other than the copyright holder may use the work for the transformative purpose. Four factors guide courts in determining whether a use of a work is fair use:

1.     The purpose of the use;

2.     The nature of the work;

3.     The amount of the work used; and

4.      The effect of the use upon the potential market value for, or value of, the work.

While courts use these factors to guide them, there is no hard and fast rule dictating what is fair use and what is infringement. This tension is brought to light in a new case filed this month by a photographer against the website BuzzFeed.

The IB Times reports that Kai Eiselein, of Idaho, filed a $3.6 million dollar copyright suit against BuzzFeed for the use of his photo. Mr. Eiselein is a photographer with over 30 years of experience, and worked as a photojournalist during his career. The photo was used on one of BuzzFeed’s “listicles”, which is essentially a shortened article in a list form, often with slides or accompanying photographs, that has enough writing to be considered an article. The listicle in question published by Buzzfeed in 2010, was called “The 30 Funniest Header Faces,” and essentially published photos of people being hit in the head with soccer balls. Mr. Eiselein’s photo was that of a female soccer player being hit in the head with a soccer ball.  

Matt Stopera is the Buzzfeed poster who created the listicle and posted Mr. Eiselein’s photo in June of 2010. Mr. Eiselein says that he first uploaded the photo to Flickr in 2009, and registered it with the copyright office in 2011. He further alleges that he sent BuzzFeed a takedown notice in May of 2011, but that the photo remained on the website for another two years. The listicle has now be renamed “The 29 Funniest Header Faces” and Mr. Eiselein’s photo has been removed.

According to, in addition to suing for infringement, Mr. Eiselein is also suing BuzzFeed for contributory infringement, alleging that the website promotes content sharing. The photo was allegedly shared to 63 other websites, however many of those were personal online blogs.

BuzzFeed’s founder Jonah Peretti has argued that usage such as that complained of by Mr. Eiselein is transformative in nature, and therefore falls under fair use. Mr. Eiselein, predictably, disagrees with this analysis, citing that the nature of BuzzFeed’s use is commercial, among other things. Mr. Eiselein also notes that he would not have minded if his photo would have been hyperlinked within the listicle.

For copyright law scholars and other interested parties, a decision in Mr. Eiselein’s case may serve as a guidepost in the factor-intensive fair use test. Copyright suits arise out of a complex body of law, and understanding the consequences of the law requires skill and experience with copyright principles. If you are the subject of a copyright lawsuit, your best defense is to contact an experienced copyright law attorney. Call the law office of Edward R. Molari today for a confidential consultation.