Can simply linking to copyright-protected imagery land you in court? Yes, it can. Just ask BoingBoing, whose parent company Happy Mutants, LLC was slapped with a copyright infringement lawsuit by Playboy earlier this month, over a February 2016 article, entitled, “Every Playboy Playmate Centerfold Ever.”
According to Playboy’s complaint, which was filed in the U.S. District Court for the Central District of California, BoingBoing – known, among other things, for its pro-fair use stance when it comes to online content – is on the hook for the “publication of [746 images, or “every Playboy Playmate centerfold”] … without [Playboy’s authorization] for commercial purposes on its website, including, but not limited to, their use in articles and advertising.”
The American lifestyle and entertainment magazine's complaint goes on to allege that the widely-read website “exploited said images in website posts without [Playboy’s] authorization or consent.”
While this might appear – on its face – to be an open-and-shut case of copyright infringement, things get interesting when we consider the specifics, namely, that BoingBoing did not actually put more than one of the 746 images on its site. Instead, in the article at issue, BoingBoing writer Xeni Jardin stated, “Some wonderful person uploaded scans of every Playboy Playmate centerfold to Imgur. It’s an amazing collection, whether your interests are prurient or lofty. Kind of amazing to see how our standards of hotness, and the art of commercial erotic photography, have changed over time.”
Then the article contained a link to the non-BoingBoing created Imgur page and included an embedded YouTube video that featured the 746 images, and which was, according to BoingBoing’s article, created by “YouTuber Ryan Powers.”
Nonetheless, Playboy alleges that BoingBoing “stole every centerfold ever,” and as a result, Playboy is seeking monetary damages, including “all profits of Defendants … plus all losses of Plaintiff, plus any other monetary advantage gained by the Defendants, through their infringement.”
A Merited Lawsuit?
As for the merit of the suit, TechDirt’s Mike Masnick aptly notes that Playboy is alleging that “BoingBoing, by writing about these collections, is magically responsible for them.” Per Masnick, “No amount of pointless and excessive legalese employed by [Playboy’s counsel] can hide just how dumb and misguided this lawsuit is.”
He continues, “Reporting on such a collection is clearly fair use. BoingBoing wasn't distributing the files. It wasn't hosting the files. It wasn't copying the files. It was just reporting on the existence of them (and saying nice things about them). And while Playboy may have a perfectly legitimate copyright claim against whoever uploaded all of the images to Imgur, it's ridiculous to argue that BoingBoing writing about the collection was infringing, or that it would harm Playboy in any way, shape or form.”
Masnick's ultimate takeaway? Playboy “arguing that BoingBoing is responsible, merely for writing about the collection and linking to it, is pure nonsense.”
In the European Union
Now consider this against a relatively recent ruling in a similar case in the European Union, in which Playboy was victorious. Following a string of copyright infringement suits that Playboy filed against publishers in recent years for using its copyright-protected images, Playboy won a legal battle in September 2016 to prevent GeenStijl, one of "the most visited news websites in the Netherlands," from posting links to images published without permission.
The European Union's top court decided last year that posting such links infringes a party's copyrights when the website doing it is seeking to profit from the pictures published without permission.
While the the Luxembourg-based Court of Justice of the European Union noted that the internet "is of particular importance to freedom of expression and of information and that hyperlinks contribute to its sound operation and to the exchange of opinions and information as well," it still ruled in favor of Playboy. As a result, the ruling provides leverage for publishers and other copyright owners that are engaged in fighting internet sites that link to or republish their content without permission.
UPDATED (Jan. 25, 2018): Boing Boing has asked the court to dismiss Playboy's lawsuit, alleging that the lawsuit is a “baseless, bizarre case," in which Playboy is targeting the sharer of the content, as opposed to those who created the infringing content. It further claimed that Playboy relies upon a “fringe copyright theory," falsely assuming that “it is illegal to link to things that other people have posted on the web."
* The case is Playboy Entertainment Group, Inc., v. Happy Mutants, LLC, 2:17-cv-08140 (C.D.Cal).