Playboy Sues BoingBoing For Linking To Collection Of Centerfold Pictures
from the really-now? dept
Playboy apparently has lawyers with itchy trigger fingers. As first spotted by Law360, Playboy Entertainment Group has sued the BoingBoing, the popular and awesome blog that covers a variety of issues around culture and technology. The case is technically against the company that owns BoingBoing, called Happy Mutants LLC. Law360 claims the lawsuit claims that BoingBoing “stole every centerfold ever.” But… that’s not at all what the lawsuit says.
It appears that the issue is this blog post from February of 2016, written by one of BoingBoing’s core writers, Xeni Jardin. Here’s a screenshot of the post from the lawsuit:
As you can see, it’s a blog post titled “Every Playboy Playmate Centerfold Ever.” There’s a very short paragraph that reads:
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.
And then it links to the Imgur page. Beneath that, it links to and embeds a YouTube video that apparently contains the same 746 images. Both the reddit collection and the YouTube video are missing now. Any sane and competent lawyer would recognize that this is BoingBoing reporting on and commenting on the existence of this collection. But not Playboy’s lawyers from the law firm of Doniger / Burroughs, which describes itself, laughably, as “California’s premier fashion, art, entertainment and technology law boutique.” To those lawyers, BoingBoing, by writing about these collections, is magically responsible for them. No amount of pointless and excessive legalese employed by these lawyers can hide just how dumb and misguided this lawsuit is:
Plaintiff PLAYBOY owns 477 original photographs commonly referred to as Playboy Centerfolds (?Subject Works?) that have been registered with the United States Copyright Office. Attached hereto as Exhibit A is a chart listing the 477 Subject Works.
Plaintiff is informed and believes and thereon alleges that following PLAYBOY?s publication of the Subject Works, Defendants, and each of them used the Subject Works without Plaintiff?s authorization for commercial purposes on its website, including, but not limited to, their use in articles and advertising.
Plaintiff is informed and believes and thereon alleges that one such use of the Subject Works by Defendants, and each of them, was an article from February 29, 2016 touting the availability of ?Every Playboy Playmate Centerfold Ever? for viewing or download without Plaintiff?s authorization, as shown below
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.
Frankly, this feels like yet another pure SLAPP suit, and is yet another reminder of why we need a federal anti-SLAPP law. Even though this is filed in California, it’s unlikely that California’s anti-SLAPP law would apply, since the claims are copyright claims, which are federal, and state anti-SLAPP laws only cover state law based claims. Thankfully, copyright law does enable fee shifting for questionable lawsuits, and this one seems ripe for fee shifting. Again, Playboy seems to be going after the entirely wrong target here. And while it can even be argued that it’s dumb for Playboy to go after someone uploading the collection elsewhere, arguing that BoingBoing is responsible, merely for writing about the collection and linking to it, is pure nonsense.