Photography and the law

    Kai Eiselein is best known as a action photographer; he takes a lot photos of the law, poilce arrests, fire fighters, and has not gotten in trouble for taking any of them. He also does some professional work, like pictures of weddings and pictures of soccer games. He mostly pots his pictures to flicker, while he does sell them. It was a photo that he posted to flicker, just like he does with most of his picture, of a girl heading a soccer ball that created a whole mess. 
   "The 30 Funniest Header Faces" was the funny collection the BuzzFeed used his picture in. It is unclear if BuzzFeed knew the picture was or his or not. However when BuzzFeed first found it, it was not copyrighted. 
        He finally got fed up with dealing with the whole mess that he had filed a lawsuit on June 7 aganist BuzzFeed. Kai Eiselein who is filing for 3.6 million dollars claims that BuzzFeed infringed his copyrights in a photo he posted on flicker in 2009.  
    Kai claims that BuzzFeed included the photo without him knowing or his consent in a collection called "The 30 funniest Header Faces", that was published in 2010. In may 2011 he found out about it and sent BuzzFeed a takedown notice, which they did and renamed it "The 29 funniest Header Faces." However according to Kai it took them 2 years to take down the photo. Kai also claims that the photo went viral from BuzzFeed, and 63 other websites had gotten hold of the photo. Again according to Kia BuzzFeed is liable for contributory infringement for the photo’s use on those sites—and on sites that published it after he registered it with the U.S. Copyright Office in late June 2011. (Copyright registration allows a plaintiff to recover very high “statutory” damages for subsequent infringement.) Kai had never registerd it beofre, until he registerd it with the copyright office in 2011. The founder of BuzzFeed Johnah Peretti argued that such usage is "transformative," and is protected under the the Fair Use doctrine of copyright. Even though it is vary vague. As of today they have not come up for a verdict. Kai was unabke to get a lawyer at the time of the claim, so he ended up writing it himslef, and has no attorney. There are many cases with copyright infragment that have lawyers lined up. So if he had any chance at winning the claim he would have lawyers lined up.  

These are a couple of reason why even if he winds the claim he will not $3.645 million dollars.   

1. Under copyright law, statutory damages are per work infringed, not per infringement. So the statutory damages, for all of the infringements of Eiselein's photo, max out at $150,000. And the plaintiff must choose between actual damages or statutory damages, but does not get both.  

2. His DMCA claim is also wrong. The $25,000 in statutory damages is for violations of Section 1202, while a violation of Section 1201 comes to "not less than $200 or more than $2,500 per act of circumvention."

3. Since he represents himself, Eiselein cannot get attorneys' fees. As the Sixth Circuit explained, pro se plaintiffs should not get fees because a contrary ruling would threaten to create a “cottage industry” of lawyer-driven litigation, and Congress did not intend to “subsidize attorneys without clients.”

Even though they have not come up with a verdict, I believe that Kai will not win the claim, and he should not have a right to. Kai sent BuzzFeed a take down notice, which they did and even renamed the article. Also when BuzzFeed first found the picture it was not registered with Kai, so they coul use it. If he would have registerd it beofre the picture was used then it would be a different stiry. Even though it is a vague form BuzzFeed is proteced under the Fair Use Doctrine of copyrigt.