A lawsuit was filed against Google Inc (NASDAQ:GOOG) in federal court in Des Moines last week. The plaintiffs in the suit, Ann Dieleman and ARAG North America Inc., allege copyright infringement against Google. The case stems from a copyrighted photograph posted on the satirical website “SexyExecs.blogspot.com” hosted by Google, but owned and operated by an unnamed third party.
Sexy Execs satirical website
Visitors to the SexyExecs.blogspot.com website see “Sexy Executives Corporate Photography” as the header, and the content of the website is photos of company execs taken from the business’ website along with critical, but humorous, commentary about the appearance of the execs in the photos. Visitors to the website are also encouraged to post comments.
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A copyrighted photo of Dieleman lifted from ARAG’s website was published on SexyExecs.blogspot.com on Dec. 7, 2009, with negative commentary about Dieleman’s smile and gums, including, “Sadly, Ann doesnt hold up to the sort of advanced, high levels of scrutiny people are subjected to these days.”
Dieleman and her legal team issued a statement saying she and her employer followed the “appropriate procedures to remove the content, however, after continued back and forth [with Google Inc (NASDAQ:GOOG)], it was time to assert my legal rights.”
“Sometimes life takes us by surprise and impacts us professionally and personally,” she continued. “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.”
Google Inc (NASDAQ:GOOG) was sued because they refused to take direct action against the blogger whose site they were hosting. According to documents filed with the lawsuit, Google finally replied to Dieleman’s complaint on Sept. 25, 2012 responding that it “decided not to take action” because it had clearly established policies concerning content removal. An email message to Dieleman from Google read, “As always, we encourage you to resolve any disputes directly with the blogger in question.”
Fair, non-commercial use of the photo
Leigh Ann Lindquist, an attorney with Sughrue Mion, PLLC, said a case could be made that the Sexy Execs website had “fair use” rights to the photo of Dieleman. Fair use rights are determined by a number of factors, including whether an entire work was used and whether it was used for commercial or other purposes
According to Lindquist, if the Sexy Execs site is not commercial (ie, for profit), then Google Inc (NASDAQ:GOOG) could argue fair use, especially given the photograph is of little real value.