Seeing Carlos Santana this weekend while watching the Super Bowl with friends reminded me about the recently filed copyright infringement suit against BuzzFeed. You might be thinking, “that was Chris Martin of Coldplay, not Carlos Santana, who played the Half Time show.” However, I am referring to Mr. Santana’s revamping of the theme song for the Super Bowl. This brought the 10 time GRAMMY ® Award winner, guitarist, songwriter, restaurateur and shoe designer (I am a proud owner of boots that he designed) back into the spotlight.
The lawsuit was brought by photographer Jennifer Rondinelli Reilly (“Ms. Reilly”), who asserted that BuzzFeed had used her copyrighted photo of Carlos Santana during his tour in Milwaukee. According to the complaint, Ms. Reilly is a fine art photographer whose business is based on licensing and selling her photographs. She asserts that BuzzFeed is a social news and entertainment company that provides users a platform to share content. BuzzFeed has more than 200 million users around the world.
Ms. Reilly claimed that BuzzFeed directly infringed on her copyright, or in the alternative induced, caused, or materially contributed to the copyright infringement of its users. She seeks an injunction and damages. Further, she claimed that BuzzFeed’s continued infringement after receipt of her demand letter was willful, entitling her to an increased statutory award along with costs, including a reasonable attorney’s fee.
BuzzFeed has not yet answered, but is no stranger to lawsuits. Last month, the Viral News Agency and its founder Mr. Leidig sued BuzzFeed for defamation seeking $11 million in damages. They claimed that BuzzFeed’s article “The King of Bullsh*t News” deliberately set out to damage their business. And in 2013, photographer Kai Eiselein sued BuzzFeed for $3.6 million related to his photograph of a soccer player heading a ball. The lawsuit settled on undisclosed terms.
BuzzFeed may assert a fair use defense to Ms. Reilly’s lawsuit. This exception to copyright infringement exists for copying of copyrighted material done for a “transformative” purpose, such as to: criticize, comment upon, parody, report the news, teach or research. Steve Baird recently posted about nominative fair use in connection with iPhone 6 packaging.
How do you think this suit will come out?