A photographer is suing popular viral content site Buzzfeed over a photograph it used in a collection back in 2010. The photographer is seeking $3.6 million in damages.

The plaintiff, Kai Eiselein of Idaho, posted the photo to Flickr back in 2009. You can see it here. It shows a female soccer player with a ball apparently hitting her head. BuzzFeed ran a compilation called “The 30 Funniest Header Faces,” which included the photo in question. The compilation has now become the “The 29 Funniest Header Faces“.

Industry watcher Jeff John Roberts at PaidContent shares the complaint:

As noted in the complaint, “A copyright notice appears on each page where the photograph appears, along with the phrase ‘All rights reserved’. In addition, right clicking on the image brings up a copyright notice.”

“The photograph was registered with the United States Copyright Office on June 25, 2011 as part of a collection of photographs taken by the plaintiff,” it says.

While the complaint says that the plaintiff sent BuzzFeed a takedown notice, and that the photograph then “disappeared from the collection,” it also says that BuzzFeed failed to remove the image from its server, so it was still available via URL. It also asserts that BuzzFeed is responsible for 61 “contributory infringements” because of other sites that picked up the image after seeing it on BuzzFeed. SItes are listed in the complaint.

BuzzFeed has historically claimed fair use on things like this, suggesting that its compilations are transformative.

The complaint makes points to say that BuzzFeed has millions of monthly visitors and “uses this fact to help convince potential advertisers to place ads on the BuzzFeed site in hopes that the ad will get a ‘viral lift’ from the content being shared and reach a wider audience,” that it “actively encourages its users to share content, regardless of whether or not that content is owned by, or licensed to, BuzzFeed,” that the plaintiff is “an award winning photographer,” and that Getty Images had requested the image in question for licensing.

“The plaintiff feels the marketability of the image has been irretrievably damaged by the scope of the infringement and has not agreed to Getty’s request,” it says.

It’s also worth noting that the BuzzFeed compilation does not link to or credit any of the image sources. One has to wonder if a suit would have been pursued had this been the case, or even if BuzzFeed simply removed the image from its server after receiving a takedown request.

Either way, some are skeptical about Eiselein’s case. Roberts, for example, writes, “It’s unlikely that the self-represented photographer ‘contributory infringement’ theory will succeed on a legal basis,” but adds, “If he does, the case would throw a large chill over the sharing culture that has become a fixture of the social web. More likely, the case will just show once again how traditional copyright law — and its frequently abused enforcement tools — is ill-fitted for the digital age.”

Andrew Beaujon at Poynter points to comments from copyright attorney (and Verge managing editor) Nilay Ptel, who said, “the common etiquette of the Internet is not reflected in the law.”

Beaujon adds, “That inconvenience may for once be to BuzzFeed’s advantage.”

It will be interesting to see what comes of this case, as it could have some pretty big ramifications for not only how BuzzFeed operates, but for how many sites on the web do.

This also comes at a time when Google is making publishers think they should probably not be using stock photos if they want to rank in search.