This story originally ran in issue 15 of The Magazine. You can now read it here by virtue of that publication’s impressively author-friendly contract.
One of the Web’s most popular sites — and the exceedingly rare media property soaking up tens of millions of dollars in venture-capital financing — gets much of its content without asking permission to use it, much less paying for it.
That’s not news. But if you talk to some of the people whose images wind up in BuzzFeed’s endlessly clickable and heavily clicked-upon photo galleries, you may have your expectations overturned, as mine were: most say thanks for the exposure.
BuzzFeed at first looked like an appropriator that took value without returning it, irritating professional photographers who find their work both increasingly valued and increasingly used without compensation. But on closer inspection, BuzzFeed may be finding its way toward a safer course — a careful combination of conventional licensing and curatorial selection.
Will blog for food
The six-year-old New York-based site’s habit of copying interesting pictures found online used to be much less polite. Forget asking permission: BuzzFeed often failed to even clearly credit and link back to the sources of the images filling its “listicles.”1
But as BuzzFeed has launched technology and business sections and hired veterans from Politico, Bloomberg, and Reuters for long-form and investigative reporting, its attribution has gotten clearer and its managers have said they want to clean up their act further. In January, CEO Jonah Peretti told Mashable’s Alex Fitzpatrick, “We really regret that we made these awesome, creative people upset.” (Meanwhile, other news organizations have picked up on BuzzFeed’s cheerful-clickbait practices — witness all the animated GIFs in the Washington Post’s WonkBlog these days.)2
To test that commitment, I set out to ask every source named in the January 2013 gallery “18 Microwave Snacks You Can Cook In A Mug,” one question: Did BuzzFeed ask to use your photo?
First conclusion: Getting random bloggers to reply to you isn’t easy. Half of the 16 sources contacted via email, phone calls, queries submitted via contact-us forms, and, in one case, a Twitter mention never responded.
Second: When large media properties are involved, BuzzFeed seems eminently capable of following the niceties of copyright law. Three of those recipes came from the St. Louis Post-Dispatch; that paper’s work is syndicated over the McClatchy Direct wire service, and editor Debra Leithauser says BuzzFeed paid to use all three photos.
Another image came from Reader’s Digest’s “Taste of Home” site, but a publicist couldn’t determine if BuzzFeed had licensed it.
Third: For everybody else, permission, much less payment, still doesn’t come into play. None of the other six sites whose images had been duplicated could document getting any reuse request from BuzzFeed. Three said they couldn’t remember (though one said weeks later that she had gotten a request but did not provide further details), and three stated with varying degrees of certainty that BuzzFeed didn’t ask.
Fourth: None of that may matter. All six of those food bloggers had economic models that clicked neatly with BuzzFeed’s appropriation of their work: They are not in business to sell photos, but to sell ads against traffic on their sites. And a BuzzFeed mention can get that traffic quickly.3
Kita Roberts, a Delaware author whose “Banana Bread In A Mug” recipe had the seventh spot in that gallery, writes that her “Pass The Sushi!” blog racked up 17,000 hits from BuzzFeed in January.
Chicago blogger Cliff Smith says a link to “Nutella Mug Cake” yielded “our highest traffic totals that day” and remains the top referral source for the “livelovepasta” site he helps run. He says, “We aren’t complaining.”
(He did mention that the Huffington Post’s HuffPost Taste food section follows different procedures: “The editor is real nice about emailing and asking for permission and then she will tell us when the post will go live on their site.”)
The BuzzFeed link economy can look less generous if you consider online outlets that don’t let their users cash in on extra traffic.
A second BuzzFeed Gallery, February’s “50 Sure Signs That Texas Is Actually Utopia,” provided a convenient test case. It featured three Flickr-hosted photos, and that Yahoo photo site clearly displays the copyright restrictions an account owner has attached to each image.
Two of them fell under Flickr’s default “all rights reserved” setting, and the other bore aCreative Commons “non-commercial” license. None of these photographers had been contacted by BuzzFeed.
“The only way I even found out about the photo being used was my daily check of my Flickr stats,” says Little Rock-based photographer Steve Spencer. But, he adds, “I do love the BuzzFeed galleries,” and he says he would have told them, “Sure, thanks for checking with me” if he’d gotten a request to use his photo of a filling Tex-Mex meal.
Another user sounds distinctly unsurprised about the lifting of a shot of breakfast tacosin an email: “No, they did not ask for permission. Go figure.”
The third apparently misunderstood the non-commercial Creative Commons license she’d chosen for a photo of a store’s spread of fruit and piñatas: “I don’t expect anyone to ask permission as long as they attribute the photo to me.”4
BuzzFeed, for its part, doesn’t seem inclined to discuss this. Four emails and two phone calls to site publicists yielded no response. (Poynter.org notes that BuzzFeed often doesn’t respond to requests for comment.)
A blurry picture of rights
Two copyright-law experts did not drop the hammer I expected on BuzzFeed. “The law has never required the kind of licensing that people have assumed is necessary,” says Julie Ahrens, director of copyright and fair use at Stanford University’s Center for Internet and Society.
And fair-use rights, she explains, don’t turn on the size of the image reproduced elsewhere. “The law doesn’t say taking a thumbnail image is fair use,” she explained. “The analysis is how much of what you’re using is reasonable to the transformative purpose for which you’re using it.”
BuzzFeed, Ahrens says, may be “pushing the envelope in terms of how much you can use.” But you can also argue that by collecting all of this related creativity on one page, the site made a transformative use of the originals: “They are trying to aggregate and create a useful tool for their readers — lots of useful content edited or curated in one place.”
That is what Peretti told the Atlantic’s Alexis Madrigal last April: BuzzFeed’s selection, arrangement, and captioning of other people’s work are “lots of little things [that] add up to a transformation as opposed to a copyright violation.”
Alison Steele, a lawyer in St. Petersburg, Florida, who represents various media companies and advises the Poynter Institute for Media Studies, leads off with this first principle: “You have to assume that any photographic image published on any of these services is owned. It’s owned by somebody.” And yet: “The law is getting a little murky on us.”
Steele explains that the traditional four factors considered in judging fair-use rights — the nature and character of the original work, how much of it you take, the nature of your own re-use, and the effect on the original creator’s market value if everybody acted like you — could permit BuzzFeed-style photo-gallery posts.5
Note that last bit: if the market had placed a value of zero on a Flickr user’s photos before a BuzzFeed mention — as Spencer wrote was the case with his shots — what’s the economic harm of reproducing that work before millions of users? So while Steele says that “as a lawyer I generally advise people against taking unnecessary risks,” she allows that BuzzFeed-style aggregation probably falls “within fair use.”
One problem with this reading of copyright doctrine is that individuals and smaller operations, with fewer resources to pay lawyers, may not be able to employ fair use as a defense in the way BuzzFeed now can. There are enough ways for even a well-justified case to go against somebody asserting fair usage that the producers of the comic-strip documentary Stripped wound up asking in a second round of crowdfunding for $34,000 (and raising nearly $76,000) to license a small percentage of the clips and other material they wanted to include.
Many comics creators, estates, and others waived fees, but several organizations required payments. A long FAQ entry on the campaign explained in excruciating detail the challenges they faced trying to claim fair use instead of paying licensing fees upfront. (The filmmakers removed the note after reaching their goal.)
If this emerging norm looks like a sort of regressive taxation that rewards large corporations that already profit from the system but brushes off solo bloggers with a “let them eat traffic” mindset — well, maybe it is. But for some, BuzzFeed gives a value that equals or surpasses what it takes.
1. As recently as September 2012, a gallery on “22 Things You’re Doing Wrong” credited a photo of a taco to “img4-2.realsimple.timeinc.net.” A RealSimple publicist said in January that BuzzFeed had done the asking-permission thing wrong, which is to say not at all; the image later vanished from the gallery. And only weeks ago, another gallery credited a photo to “Instagram” rather than to the creative Cheeto eater who goes by “akmelza.”↩
3. Awry attribution can undo those benefits. Kristin Schrier, the Kyrgyzstan-based author of the Ivory Pomegranate blog, wrote that BuzzFeed’s use of a photo for a different recipe “seems to have negatively skewed my traffic because all of those people clicking through from the BuzzFeed article quickly leave my site when they realize it’s not the recipe they were after.”↩
4. At the drafting of CC’s non-commercial definition, there was a debate about its precise limits that continues to this day. Selling a T-shirt, a calendar, or another product using the image clearly constitutes commercial use. But does using an image on an ad-supported site meet that test? What if those photos are used in a “sponsored content” post paid for by an advertiser? The drafters left the language vague.↩
5. BuzzFeed’s recipes listicle would pass a copyright test if it had featured rewrites of the original recipes — you can’t copyright a list of ingredients — with only tiny thumbnails of the original images, even though that would have sent little to no traffic to the people who did the actual work.↩