Breitbart’s Biggest Enemy is the Truth…Including Todd Bigelow’s Copyright

A lawsuit was recently filed in the Southern District of New York that isn’t exactly fascinating for its merits, but it Breitbart’s Biggest Enemy is the Truth...Including Todd Bigelow’s Copyright by Mark Kaufmandoes speak to the perennial issue of intellectual property rights: the erroneous but popular idea, even among commercial users, that “if it’s on the internet, it’s free to use!”  

In Bigelow v. Breitbart News Network, LLC, photographer Todd Bigelow is suing Breitbart News over its use of one of his photographs without his permission. In addition to garden-variety copyright infringement, Bigelow also sued under the Digital Millennium Copyright Act, because Breitbart had removed the identification of the artist and its copyright from the image.

For those of you outside the United States, Breitbart News is a news media company best known for right-leaning content that others have charitably described as xenophobic (among many, many other things). Breitbart enjoyed a meteoric rise to fame during the 2016 election—and afterward, its editor was appointed as a senior advisor to the U.S. President.

The image in question features four people, presumed to be Mexicans, scaling a section of fence on the US-Mexico border. Bigelow took the shot as part of an ongoing photo essay on immigration, which is on permanent display at the California Museum of Photography. Breitbart had other ideas, though, and juxtapositioned the image next to an article with the headline “Illegals Obama Decline [sic] to Deport Charged with 19 Murders, 142 Sex Crimes.

In a previous article, I wrote about online entities suing and getting sued for copyright violations. In some of those instances, the plaintiffs were found to lack standing because they had the right to sue, but not ownership of the content. In this rather vanilla dispute, I don’t expect any surprises. Instead, it will go down as yet another entry into the Book of Shame filled with news organizations and bloggers that consider anything they find on the internet to be free to use. That’s why it’s imperative that any law firm, or even amateur blogger, use licensed or purchased images from a reputable source. I know of a company that just settled for $5,000 to correct such a mistake. To avoid such unnecessary expenses, use common sense and buy or license from the copyright owner – or just don’t use it.

Mark Kaufman

Mark S. Kaufman
Kaufman & Kahn

747 Third Avenue
32nd Floor
New York, NY 10017
Tel. (212) 293-5556
Fax. (212) 355-5009

Blogs offer an accessible way for readers to learn more about issues that are important to them, but their short format is in no way representative of the entire breadth of knowledge that an attorney possesses. The only way to ascertain your legal rights and responsibilities is to engage an attorney in an official capacity, as a client.

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