Perez Hilton: First Amendment and Blogging Crusader?

Dec. 19, 2006 — -- It's billed as "Hollywood's Most Hated Web Site," but in less than three years, Mario Lavandeira aka Perez Hilton has created one of the most popular and profitable celebrity news blogs.

These days, however, the chronicler of Hollywood's hotties is feeling the heat.

"I'm a polarizing figure," Hilton said, from his self-described "office" at a coffee shop on Hollywood's Sunset Boulevard.

"You either love me or you hate me. There is very little in between," he said.

X17 Inc., a Los Angeles photo agency with a reputation for aggressively pursuing celebrities in their public and private moments, has filed a $7.6 million federal copyright infringement lawsuit against Hilton.

The blogger's Web site, PerezHilton.com, posts tabloid photos of celebrities and adds cheeky captions and rudimentary doodles.

The lawsuit alleges that Hilton used 51 photographs without permission, payment or credit to X17.

Brandy Navarre, co-owner of X17, said that she wasn't suing Hilton out of enmity and that it was strictly business.

"It is not at all personal," Navarre said. "We are suing for copyright infringement. He is stealing our images, and he is hurting our business."

Tabloid Photos: Where the Bread Is Buttered in Entertainment News

Celebrities caught on tape or film are the bread and butter of entertainment news.

Hilton is accused of showcasing scores of X17's photos without expressed permission or payment, including those of Katie Holmes and Tom Cruise, Britney Spears and K-Fed, and Cameron Diaz, to name a few.

"The bottom line is we are running a business and we need to make money off of our photos or our business doesn't exist. We can't give our photos away," Navarre said.

Copyrighted material represents a good deal of the currency in the ever-expanding blogosphere.

X17 has agreements with several popular gossip blogs, including SocialiteLife and PinkIsTheNewBlog.

Navarre acknowledges that some smaller Web sites have plucked her photos without permission, as well as a few of the larger, well-known entertainment Web sites.

So why Hilton and why now?

"Our clients have repeatedly mentioned Perez Hilton as the specific reason that they don't want to license an image," she said.

"They have actually canceled sales or have wanted reduced prices because they have already seen the images on his Web site."

Sign of Success?

But Hilton believes he's being sued because he is now a star in the blogosphere with an increasing number of well-known Web sites providing links to PerezHilton.com.

"All successful people get sued. It just happens. The more successful you become, the more high profile, the bigger target you are and I'm an easy target."

X17 insists it is simply trying to protect its product.

"Perez was just not respecting our cease and desist notices and the infringement is at an unacceptable level," Navarre said. "We tried to handle it amicably many, many times and he was not interested in doing it that way."

The Case's Merits

Hilton says he has done nothing wrong and is shielded by First Amendment law and "fair use" statutes.

But does X17 have a good case?

"If what they are doing is taking these photos in unadulterated form and simply reposting them on the Web site that would not be fair use," said Los Angeles entertainment and copyright lawyer Doug Mirell.

"The penalties for copyright infringement can be pretty stiff. If the court finds there is willful infringement it could be $150,000 per photograph."

Hilton feels like he will not only be defending his rights, but those of bloggers everywhere.

"This one agency is attempting to squash our freedom of speech and our freedom of expression and our freedom of creativity, which is protected under the law," he said.

Blogosphere Crusader?

In fact there are those in the so-called blogosphere who see Hilton as a crusader.

Matt Lum runs Hoodlum Productions, which has provided high-tech help to Hilton's site and X17.

"When he says he is fighting for all bloggers, he really is," Lum told The Los Angeles Times. "The way Americans get their news and entertainment these days is a whole lot different from waiting for things to get printed, and that's what's at the crux of this whole ordeal."

Mirell says established copyright law applies across all media and the courts now have a wealth of experience with Internet issues. He anticipates no chilling effect.

However, the questions before the court remain the same.

"Is the content that they have uploaded and then distributed an infringement of somebody else's copyright?" Mirell asked. "And should they be paying for it?"

Hilton's defense could include the allegation that he rendered "commentary" in scribbles and scrawls across the appropriated photos and that it represented satire or humor.

Such "transfigurative" altering of another's work for "art's sake" is allowed under the law.

Still, X17's Navarre takes exception.

"Literally stealing every single photo on the Web site and claiming just because you put a few white dots coming out of someone's nose that you have safe harbor as a satirical work? No, I don't think that will hold up in court," she said.