Lucan Advises on Web Use of Images

Court rules copying miniature photos may not violate copyright


© Alice Neff Lucan 2002

The U.S. Court of Appeals for the Ninth Circuit has written a decision about the taking of material from someone else’s Web site that should be read by everyone managing Web site content. The three major holdings are these:

The defendant’s use of miniature photographs, copied from the plaintiff’s Web site to the defendant’s Web site, is not a copyright infringement because the use is “transformative,” a term that every Web master should learn to understand.

On the other hand, framing the full-sized photographs with the defendant’s advertising material, while the photographs remain on the plaintiff’s Web site, is a display of the plaintiff’s work and is a copyright infringement.

Offering images for display is a copyright infringement in and of itself, whether or not any member of the public actually views the copyrighted photographs.

The plaintiff here is a professional photographer, Leslie Kelly, who maintains a Web site offering his own photographs for sale. According to the Ninth Circuit, Arriba, the defendant (and now called, scanned the Web for the images and displayed them in two ways associated with its own Web site. Here, so that you can understand the Court’s reasoning, is its own description of the creating of miniatures by defendant Arriba.

“[A Web crawler] downloads full-sized copies of the images onto Arriba’s server. The program then uses these copies to generate small lower-resolution thumbnails of the images. Once the thumbnails are created, the program deletes the full-sized originals from the server. Although a user could copy these thumbnails to his computer or disk, he cannot increase the resolution of the thumbnails; any enlargement would result in a loss of clarity of the image.”

The three judge panel thought this was not a copyright infringement for three reasons. The user could not use the miniatures as replacements or copies of Kelly’s original work because an expanded version of the miniatures would not have good resolution. Though the court didn’t say it this way, the copies were actually not complete because they were missing the tiny dots of the photographs that would give full resolution. Second, “Arriba’s search engine functions as a tool to help index and improve access to images on the Internet and their related Web sites,” thus it added a new service. Third, this use was not hugely “commercially exploitive,” and may in fact have been useful to Kelly in marketing his photographs.

The framing or inline linking, however, lost the case for Arriba. Again, here’s the Court’s description of what Arriba did:

“[The ‘Images Attributes’ page] contained the original full-sized image imported directly from [Kelly’s site], along with text describing the size of the image, a link to [Kelly’s site], the Arriba banner, and Arriba advertising. The process of importing an image from another Web site is called inline linking. The image importing from another Web site is displayed as though it is part of the current Web pages, surrounded by the current Web page’s text and advertising. As a result, although the image in Arriba’s Image Attributes page was directly from the originating Web site, and not copied onto Arriba’s site, the user typically would not realize that the image actually resided on another Web site.”

Here the Court found that the display of the full-sized photographs infringed Kelly’s copyright because they were on display by Arriba, without Kelly’s permission or license, because the use was not “transformative” or changed into another purpose, and because Arriba’s use competed directly with Kelly’s use of the photographs. Notice that there is no literal copying here, only the display under the guise of a service offered by the infringing Web site owner. “By inline linking and framing Kelly’s images, Arriba is showing Kelly’s original works without his permission,” the Court said.

The Supreme Court of the United States has held that a “transformative” work adds something new to the original work, something with a further purpose, a different character, something that alters the first message with new expression. To the degree that the copier’s work transforms the original work, there is less likelihood of copyright infringement. This is a tough concept to measure or even to describe in the abstract, but an acid test is to determine whether the copier’s work could be used in place of the original work. Here, the “thumbnails” or miniatures could not be, but the framed link to the original photographs was a “display,” thus an infringement of the original works.

One of the Arriba’s defenses was that Kelly couldn’t prove anyone had ever seen his works on their site, thus no display occurred. The Court would have none of that excuse: “Allowing this capacity is enough to establish an infringement; the fact that no one saw the images goes to the issue of damages, not liability.”

In fact the headline on this story might become the damages. As the Copyright Law provides, Kelly reportedly intends to ask for treble damages plus his attorney’s fees. The potentially huge amount of money could be awarded, in the trial court’s discretion, if the court finds the infringement was willful.

The decision appears to be the first of its kind, in that it consolidates all of these holdings applicable to one fact situation. However, previous case law is consistent with this outcome and Web masters would be well served by reading this one. The caption is Kelly v. Arriba Soft Corporation and it was reported by the Ninth Circuit on February 6, 2002.

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