Des Moines Marketing Executive Sues Google for Copyrighted 'Sexy Executives' Photo

Jan. 8, 2014— -- The common traits of corporate executive headshots may be easy to poke fun at: a goofy smile, business suit, monotone backdrop and chest-to-head sizing. But after a parody website published a photo and snarky comments of a marketing executive, she and her company filed suit against Google, which hosts the site.

Ann Dieleman, senior vice president and chief marketing officer of ARAG North America Inc., a legal and financial services provider based in Des Moines, Iowa, found her corporate photo was posted on a small blog site called Sexyexecs.blogspot.com, which has been hosted by Google's blogspot blogging service since Dec. 2009.

The satirical site, which is managed by an unknown party, has the words, "Sexy Executives: Corporate photography" at the top. Company headshots of executives--lifted from the PR pages of company websites--are periodically published with humorous descriptions and critical comments about the person's appearance. Readers are then invited to post their own comments.

A corporate photo of Dieleman was published on Dec. 7, 2009, with comments about her smile and gums, including, "Sadly, Ann doesnt [sic] hold up to the sort of advanced, high levels of scrutiny people are subjected to these days."

Dieleman and ARAG are now suing Google after the tech giant refused to take down her copyrighted photo.

Dieleman said her company followed the "appropriate procedures to remove the content, however, after continued back and forth, it was time to assert my legal rights."

"Sometimes life takes us by surprise and impacts us professionally and personally," she said in a statement. "This reinforces why I'm so committed to ARAG's mission of enabling every citizen – not just those who can afford it – to assert their legal rights."

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ARAG and Dieleman are both named as plaintiffs in the lawsuit filed in federal court in Des Moines last week. They allege copyright infringement against Google.

An attorney for ARAG North America Inc. notified Google on Sept. 11, 2012 that the photo infringed on the Digital Millennium Copyright Act. On Sept. 25, 2012, Google responded, saying that it "decided not to take action" based on its policies concerning content removal, according to the suit.

"As always, we encourage you to resolve any disputes directly with the blogger in question," an email from Google stated, according to the lawsuit.

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Google did not respond to a request for comment.

Dieleman said she has more than 18 years in the sales and marketing in the financial services industry, helping educate consumers.

"Given I've spent the majority of my career educating and empowering people to protect their rights, I didn't feel it would be right to ignore protection of my own when this situation arose," she said in a statement.

Leigh Ann Lindquist, an intellectual property attorney with Sughrue Mion, PLLC, a law firm that is not involved in this dispute, said Google likely decided that the website had "fair use" rights to the photo, which is determined by a court taking into account a handful of factors, including whether an entire work was used and if it was used for commercial or nonprofit educational purposes.

If an entire copyrighted work was used, that weighs in favor of copyright infringement, she said. In contrast, if the Sexy Execs site is not commercial in nature, Google could argue in favor of fair use, plus there is likely very little value in the photograph, Lindquist said.

That's in contrast, for example, to 'The Hunger Games' films, she said.

"If someone leaked a new 'Hunger Games' movie, that could significantly affect the value or potential market on that particular work and weighs in favor of finding copyright infringement," she said. "That really isn't the issue here."