Barefootsies

For all his flaws, bloggy celebrity matriarch Perez Hilton knows how to pick his slap fights. Last year, when paparazzi agency X17 plunked down a $7.5 million lawsuit against him for stealing their pictures, he fought back, asserting his rights to fair use and racking up gobs of press in the meantime. Perez (born Mario Lavandeira) fancies himself a defender of blogger's rights, but it seems he realized he had a weak argument against the latest copyright lawsuit threatened against him.

Last week, Creative Age Publications, a publisher of spa and beauty magazines, claimed that Perez ripped off his site's sparkly eye and fingernail logo from its Nailpro magazine. Instead of bitchily flipping the figurative finger in a blog screed, Perez promptly ceased and desisted, changing his logo to an animated cycle of cartoon renderings ... of himself.

So why did this all happen now? Los Angeles-based photographer Brooks Ayola, the man who took the original image for Nailpro, tells Radar he's been trying to get the image taken down for over a year. Without the benefit of a lawyer in his pocket, though, he only got as far as Perez's apologies over the phone and a pathetic plea: "but it's my branding."

"He was very self-important from the start," Ayola says of Perez, whom he calls "not a great human being."

Once Creative Age, who owns exclusive rights to the photo, took up the cause and threatened Perez with a $150,000 lawsuit, the branding conspicuously disappeared. "It's nice for it to be over," Ayola says, "but it would have been nicer to get paid for it."

The whole issue might not be over just yet. Even though he's removed the picture from the banner atop his site, Perez is still using Ayola's image in other places and as his widget for Mac OS X.

Messages sent to Lavandeira seeking comment were not returned.
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Barefootsies

Fair use on the Internet

A US court case in 2003, Kelly v. Arriba Soft Corporation, provides and develops the relationship between thumbnails, inline linking and fair use. In the lower District Court case on a motion for summary judgment, Arriba Soft was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly's website in Arriba's image search engine. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation, who argued that it is clearly covered under fair use.

On appeal, the 9th Circuit Court of Appeals found in favor of the defendant. In reaching its decision, the court utilized the above-mentioned four-factor analysis. First, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution like the original artwork was. Second, the fact that the photographs had already been published diminished the significance of their nature as creative works. Third, although normally making a "full" replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Lastly, the court found that the market for the original photographs would not be substantially diminished by the creation of the thumbnails. To the contrary, the thumbnail searches could increase exposure of the originals. In looking at all these factors as a whole, the court found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, 2003. The remaining issues were resolved with a default judgment after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement.

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