Porn Site's Victory
Over Google
Over Google
In my September 2003 PhotoStockNOTES article, I reported on Leslie Kelly's suit against Arriba Soft Corp. and the Ninth Circuit Court of Appeals' determination on appeal. That decision affirmed the
A court has now revisited the issue in a different context, and, given the changing technology and market conditions, has found that reproducing thumbnail-size images of photographs on an internet search engine may indeed constitute copyright infringement.
The case, Perfect 10 v. Google, Inc., brought in the United States District Court for the Central District of California, concerns Google's image search function in the form of thumbnail-size images as part of its search engine services. As stated by the Court, it "arises out of the increasingly reoccurring conflict between intellectual property rights on the one hand and the dazzling capacity of internet technology to assemble, organize, store, access, and display intellectual property ‘content' on the other hand.”
Perfect 10 publishes an adult magazine and operates a subscription website which features "high quality, nude photographs of ‘natural’ models.” It has invested $36 million over the past nine years to develop its brand, which included photographing over 800 models and creating over 6,000 high quality images, which have been registered with the Copyright Office.
Google is of course the king of the search engines. It indexes websites on the internet via a web crawler. Google, as part of its activities, displayed thumbnail versions of images found on the Perfect 10 website. Google admitted it displayed these thumbnail versions but argued that such use is considered fair use under the Copyright Law. In particular Google relied upon the Kelly decision.
The Court, on a preliminary injunction motion, ruled against Google, finding that the use of the thumbnail images in this instance probably constitutes copyright infringement. The opinion differs from Kelly largely because Perfect 10 was able to establish that it had created a new market for these thumbnail-size images of its nude photos. This new market arises out of the fast-developing technology
This issue really did not arise in the Kelly case as that Court just made a presumption that there was no market for thumbnail-size images, without any discussion, and apparently Leslie Kelly had not established that he made sales of that size image. This is a prime example of how new technology impacts on existing law.
Google has appealed the decision, so the Ninth Circuit Court of Appeals will have a chance to revisit its own rulings in the Kelly case. In the meantime, Google and other search engines can no longer feel confident that they can continue to crawl the internet and reproduce photography in thumbnail-size images, or any other sizes for that matter, without the possibility of being found to have committed copyright infringement. Clearly, as I stated in connection with the Kelly decision, we still have not heard the last word!
Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com. Ed Note: For earlier reports on the Leslie Kelly vs. ArribaSoft case in PhotoStockNOTES: www.photosource.com/photoaim/kelly.html www.photoaim.com/gen546.html www.photoaim.com/list/380d.html www.photosource.com/searchengine.html www.photoaim.com/list/396A.html
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