Photo Copyright Case -- BNA's Internet Law News (ILN) - 2/7/02

[Donald Brewster]

From BNA's Internet Law News (ILN) - 2/7/02

9TH CIRCUIT OVERTURNS PART OF KELLY V. ARRIBA DECISION The 9th US Circuit Court of Appeals has held that an Internet search engine named Arriba (now Ditto.com) infringed a professional photographer's copyright by displaying full-sized images of his work through inline linking. The court found that small, low-quality thumbnail images were covered by the "fair use" provision of the Copyright Act, but reversed a lower court opinion, which found that displays of larger high-quality images were also protected. Decision at http://caselaw.findlaw.com/data2/circs/9th/0055521P.pdf Coverage at http://www.siliconvalley.com/docs/news/tech/078264.htm

[Rob Pietri]

Thanks for posting that decision. I would think that all who have web sites and jpg files find this very distrubing. I would think that any unauthorized use of an image would be unlawful, no matter how, where or even a low quality thumbnail. If someone else is benefiting, profiting from your image, they should pay, no matter what it is!

I know what I am going to do on my legal notice on my website, is to include unauthorized linking to any part of my web site images etc. Not that I have a problem, at least none that I know of. Also make sure that image files are small enough so any downloading would be of very low quality. Watermarks would also help.

[Myco Megasoid]

The most important thing for all of us to do is to REGISTER YOUR ? ON IMAGES. Yes, you do technically own the ? at the moment of creation of the image, but if there is an infringement, the best you can get is value of actual damages.

If you have a Registered ? with the Library of Congress, Bureau of ?, an infringement can get you $150K in statutory fines, not to mention criminal prosecution of the infringers.

I've been registering ? since 1982, and have forced $150K out of 2 infringers [cosmetics industry] without ever going to court when the infringements were discovered. Discovered by luck, as it turns out--finding infringements in print isn't always easy. Finding infringements on the web with Digimarc digital watermarking is easier, though not guaranteed.

Here's the link to register

http://lcweb.loc.gov/copyright/

I send in JPG's on a CD along with filling out the forms as PDF's in Adobe Acrobat. I send hard copy of the forms, as well as putting the PDF files on the CD itself. The JPG's should be named with .jpg file extensions, and file names should only have alphabetic and numeric characters along with periods and hyphens only. This way, they can be opened with a PC or Mac.

I use Mitsui Gold CD-R media for this, as it's the most archival. Burning CD's at a slow 2X is also the optimum archival speed. I use a Mitsui CD marker on the top surface to identify the CD and my contact info, which with a URL and domain name e-mail address and 888 phone number are "essentially permanent".

REGISTER YOUR ?'s DO IT NOW!!!! Let's take the money away from the infringers!

Myco http://www.megasoidstudios.com

[Annoyed]

"I know what I am going to do on my legal notice on my website, is to include unauthorized linking to any part of my web site images etc"

Um, THE WEB IS ALL ABOUT LINKING any place on the web that you want. Frankly, if you feel differently, password protect your website or TAKE YOUR WEB PAGES DOWN.

[Tom Westbrook]

I've been researching the linking issue. As an addendum, it appears that since the original post the 9th Circuit has clarified it's opinion in July 2003 here: http://www.eff.org/IP/Linking/Kelly_v_Arriba_Soft/20030707_9th_revised_ruling.pdf.

Basically, it has held that thumbnails, as low-resolution copies that aren't useful for duplication of full-sized images, are a "fair use" of the images. But, as far as I can tell, they still hold that including a full-sized image on a web site without the permission of the copyright owner is a violation of copyright. The revised opinion sited above only clarifies the court's reasoning.

To quote the conclusion of the revised opinion


We hold that Arriba’s reproduction of Kelly’s images for use as thumbnails in Arriba’s search engine is a fair use under the Copyright Act. However, we hold that the district court should not have reached whether Arriba’s display of
Kelly’s full-sized images is a fair use because the parties never moved for summary judgment on this claim and Arriba never conceded the prima facie case as to the full-size images. The district court’s opinion is affirmed as to the thumbnails and reversed as to the display of the full-sized images. We remand for further proceedings consistent with this opinion. Each party shall bear its own costs and fees on appeal.


Frankly, I find this unhelpful. What is a "full-sized" image? It's obvious that if the image has only been published as an image on the web, that a "full sized" image is whatever maximum size the image exists on the copyright owner's web site (or is the negative or positive image on film the "published" work?). But, if it's been published as, for instance, as a silver halide print, then isn't any scan of that image a lower resolution representation of the published print, and therefore publication of such a scan would be considered "fair use"? As far as I can tell, any image that's a lower resolution than the original is a "thumbnail" as far as copyright law is concerned., since the court only refers them as "lower-resolution thumbnails of the [full-sized] images".

RE Annoyed’s opinion above: read copyright law--it's there for a reason. Just because linking is possible doesn't mean it is legal.