AP Backs Out of I Can Has Cheezburger Deal Over Concerns of Journalistic Integrity

8/23/10

Everyone loves a cute picture of a kitten with a funny (and often, misspelled) caption over it. Everyone other than the Associated Press, that is.

Seattle’s famous (or infamous depending on your point of view) I Can Has Cheezburger network has made a name for itself as a place where the absurdly adorable meets funny. The slew of 50 plus humor sites —from LOLcats to FAIL Blog—generate a combined 340 million page views a month, and draw in nearly 20,000 user submissions on a daily basis. It has become a focal point for comedy blogging around the world.

In just three short years, the Cheezburger name has become so popular, in fact, that earlier this month it inked a content partnership with big time Seattle-based global media organization Getty Images (the terms of which were not disclosed), and is currently in talks with Corbis Images. The former allows the sites to take images from Getty’s catalogue put them to their users to doodle and caption, before reposting on Cheezburger’s celebrity-centric ROFL Razzi and political Pundit Kitchen sites. But recent talks between Cheezburger and the AP regarding a similar partnership ended abruptly when the wire service backed out of the deal last week, citing concerns over its “journalistic integrity,” according to the Los Angeles Times.

Cheezburger founder and CEO Ben Huh was hoping to strike a deal that would allow the humor site access to AP photos, specifically celebrity and political images, that would then, in true Cheezburger fashion, be re-captioned with user-generated comments—much like the deal with Getty.

“I approached AP. We wanted to allow our editors and moderators to post timely and funny photos and allow future use of the pictures for our users,” Huh told Xconomy in an e-mail Thursday.

Huh has frequently spoken to the press about his thoughts on the changing media marketplace—and how Cheezburger’s success is a testament to the fact that there isn’t just one hard and fast way to be a leading publisher on the Web. The company’s immensely popular network of sites have been profitable since its first quarter of operations, and two of the five Cheezburger books have made The New York Times best sellers list. And while some more traditional news organizations run by professional reporters and editors may be more reluctant to associate with an organization that seems to be all about laughs, and nothing serious, Huh says the comedy focus doesn’t make the network any less popular, or relevant, in today’s culture.

When I spoke with Huh back in June, around the time Cheezburger hired its first full-time CFO Pearl Chan, he told me that he sees the network steering into a new space—infotainment. He also predicted that, while Cheezburger will probably never cover hard news, the network could easily expand into other facets of Web publishing beyond comedy. But at this point, that isn’t enough for the AP.

“They felt that allowing any user to add captions may violate their journalistic integrity,” Huh says.

While Sue Cross, the AP’s senior vice president of partner relations, acknowledged the shift within the news media to digital use in the LA Times piece, this did not change the non-profit organization’s position regarding Cheezburger.

“The AP, it’s fair to say, is less print-centric, and more digital- and mobile-focused,” Cross told the Times. But when approached for comment, AP manager of media relations Jack Stokes said the organization had nothing to add beyond what Cross said in her interview with the LA Times.

And while Huh told the LA Times he had not expected to make money from the proposed AP deal, he told Xconomy that he “absolutely” plans to seek out future partnerships of this nature with other media organizations. As for the measurable benefits of the current Getty Images deal for Cheezburger, “It’s too early to tell, Huh adds. Regardless, he says he will continue to seek out more timely content “to serve as inspiration for our users.”

In the LA Times piece, Mark Milian wrote that gossip blogger Perez Hilton occasionally publishes AP photos, with his own doodles and captions, which appears to be in the same vein as the proposed Cheezburger use. The Times piece didn’t say whether Perez Hilton gets permission to use AP photos.

All this talk of reposting rights for content online, made me think back to a media law class I took in journalism school, and the issue of copyright infringement. To get a little context on the much debated topic, I turned to my former professor and intellectual property lawyer Don Zachary, who served as counsel to NBC for nearly 20 years, and has experience in the entertainment media space.

Though Cheezburger is currently not using any AP photos without permission, I thought it might be interesting to postulate whether or not the comedy network could, under media law. To figure this out, I had Zachary walk me through the criteria of what constitutes “fair use” (I loved your class at USC, Don, but I hate to admit, I needed a quick refresher). To answer this, we discussed four points taken into consideration when evaluating whether a case constitutes fair use—the purpose and character of the use, the nature of the copyrighted work, the amount and sustainability of the use, and the effect (if any) it would have on the market.

A legal case could hinge on whether a judge considers Cheezburger’s users as performing parody or satire. “It is well-established law that one can take a portion of a copyrighted work in order to create a parody, which is a form of commentary on the thing taken,” Zachary says. “For example, there is a very famous comedy sketch by Carol Burnett that is based on Gone With The Wind that involves Rhett, Scarlett, Ashley and Mammy and the famous scene near the end of the picture when Scarlett makes a dress from a curtain in order to impress Rhett. That’s why it is a parody, because it was making fun of the original motion picture.” A satire, on the other hand, is when a literary device is used to make fun of something else, he says.

In this hypothetical, “obviously, Cheezburger will argue that the purpose of the use is for comment,” Zachary says. “The problem is that while parody is a well-recognized purpose for using copyrighted material, satire never has been held to have the same level of protection.” But, he adds, “There is absolutely no reason, in my mind, why this should be so, but the only case in point of which I am aware is the Family Guy/When You Wish Upon A Star/Disney litigation, in which the U.S. District Court held that the use in Family Guy of the melody from When You Wish Upon A Star was Fair Use, even though that use clearly was satirical, not parody.”

For those of you unfamiliar with the case, in an episode aired in 2003, the father character, Peter, complains about his financial situation by singing a song called “I Need a Jew,” to the tune of Disney’s “When You Wish Upon a Star.”

“It’s hilarious, but it is not making fun of Disney or the song When You Wish Upon a Star,” Zachary says. “Rather, it is poking fun at stereotypes about Jews. Disney argued unsuccessfully that this kind of satire was not protected by the Fair Use doctrine, but the District Court in Manhattan disagreed.” For this reason the Family Guy decision, which he notes is currently under appeal, “breaks new ground.”

If this were to be a real case disputed between the two, AP would have a strong argument because of the highly creative nature of the images, which are subject to maximum copyright protection, and the fact that the final Cheezburger images would likely use close to 100 percent of the original work. However, Zachary adds, in terms of effect on the market for news images, most likely “no one is going to use a captioned Cheezburger photo instead of the original AP photo.” In other words, this (hypothetical) case could go either way.

Thea Chard is a correspondent for Xconomy Seattle. You can e-mail her at theachard@gmail.com or follow her on Twitter at http://twitter.com/theachard. Follow @

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