Art Law by Ann Avery Andres, Esq.


New Law Being Made on Use of Images on the Internet


Artists have for a long time been concerned about putting their images on the internet. It is so easy to download images and difficult to track what use is being made of them.

In a recent decision, a U.S. Federal District Court in Santa Ana, California addressed the issue of whether a search engine, Ditto, (formerly Arriba Soft Corp.) violated copyright protections when it "scooped up" and copied some photographs used in a Web page advertisement. It also addressed whether Ditto violated the Digital Millennium Copyright Act.

The plaintiff is Leslie A, Kelly, a photographer, who maintains two Web sites: one a "virtual tour" of the California's gold rush country and promotes a book Kelly wrote on the subject; the second Web site markets corporate retreats in California's gold rush country.

The defendant's visual search engine scanned Kelly's photographs without the copyright information attached, onto its indexed database of approximately two million images. The images were reproduced in a much smaller, "thumbnail" size. In January, 1999, around 35 of Kelly's images were indexed by the Ditto crawler.

Kelly argued that such use by Ditto violated Kelly's copyright protections under the federal law (17 U.S.C. 106). There was no dispute but that Kelly had copyrights on his photos nor that Ditto reproduced them without the copyright information attached. Ditto did not have Kelly's permission to reproduce the images.

Federal Judge Gary L. Taylor held that Ditto's use of the images was a copyright violation but that such use fell within the "fair use" exception. The "fair use" exception allows use of material without the permission of the owner if the purpose is for criticism, comment, news reporting, teaching, scholarship or research. In making this decision, Judge Taylor reviewed the 4 criteria set up in the federal law to be considered in a particular case of fair use. The criteria are as follows:

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) The nature of the copyrighted work;
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) The effect of the use upon the potential market for or value of the copyrighted work.

Attorney Judith B. Jennison of Perkins Cole in Menlo Park, California represents Ditto and argued that requiring search engines to obtain permission before coping images or other material would be too cumbersome. Judge Taylor opined that Ditto's copying of Kelly's images fell within the "fair use" exception using the above criteria mainly because of the established importance of search engines and the "transformative" nature of using reduced versions of images to organize and provide access to them. Judge Taylor states: "Kelly's photos are artistic works used for illustrative purposes. Ditto's visual search engine is designed to catalog and improve access to images on the internet. The character of the thumbnail index is not esthetic but functional; its purpose is not to be artistic, but to be comprehensive."

While the Judge did not use the analogy, his reasoning appears to analogize the search engine index to a bibliography of what's available on the internet. Such indexing is done regularly by publications found in libraries and deemed research tools and are not questioned. In this case, the difference is that the image itself was reproduced. The viewer could click on the thumbnail sketch and the image would enlarge to allow viewers to download it if desired. The Judge was concerned that this enlarging could be done without providing a viewing of the rest of the originating Web page but went on find, on balance, fair use by Ditto.

The Judge found persuasive the fact that Ditto stated that there could be copyrights involved and referred the viewer to the Web sites as well as the fact that the use by Ditto did not adversely affect the market value of Kelly's Web sites. Ditto's use of the images did not compete with Kelly's use of his images which is to promote his book and business.

Enacted on October 28, 1998, the Digital Millennium Copyright Act (DMCA) implements two earlier World Intellectual Property Organization treaties. Section 1202 of the DMCA governs "integrity of copyright management information." Section 1202 (b) prohibits, unless authorized, several forms of knowing removal or alteration of copyright management information. Kelly argued that Ditto violated 1202 (b) by displaying thumbnails of Kelly's images without displaying the corresponding copyright management information consisting of standard copyright notices in the surrounding test.

Judge Taylor found that the above section was not violated by Ditto because it applies to removal of notices on ORIGINAL works and not copies and because there was no showing that Ditto INTENTIONALLY removed the notice. The removal was merely "an unintended side effect of the Ditto crawler's operation." a viewer clicked on the thumbnail image, the viewer was given the name of the Web site where any associated copyright management information would be available. And, as mentioned above, viewers were informed that use restrictions and copyright limitations may apply to images retrieved by Ditto's search engine.

Trade groups representing artists are assisting Kelly in his appeal of the case. Their argument is that by allowing search engines to "crawl" or "scour" images on the World Wide Web and then make them available to be copied from the search engine's data base leads to a "mishandling" of the image. Several leading copyright law professors have publicly stated that they believe the U.S. 9th Circuit Court of Appeals will uphold Taylor's ruling.

So, what does this new holding mean for the artist who places his/her images on the internet? It does not mean that the images may be downloaded and used for commercial purposes. Commercial use of an image would not fall within the "fair use" exception. However, be warned. "commercial use" is open to interpretation. Clearly, though, the image cannot be downloaded and used, for instance, to promote a product for sale.

The image could be used as described above for teaching, scholarship, research and criticism. It does not mean that the image can be intentionally download and reproduced and disseminated without the copyright notices attached for any purpose. And, in California and many other states, there are state statutes which protect images from being used for commercial purposes without the artist's permission. (See Art Law article on "Reproductive Rights to Art Works"). Therefore, use of an image that falls within the commercial purposes definition could be stopped and/or compensation required.

The holding does mean that search engines can pick up and reproduce images from an artist's Web site when the purpose is to inform the viewers that the images exist and where to find them.

Keep tuned. Law is being made everyday in this new arena of the internet.

© Ann Avery Andres, 2000

Ann Avery Andres practices law in Santa Ana,CA. She may be reached at 714.558.7775. Her address is 322 West Third Street, Santa Ana, CA 92701.

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Resource Library Editor's note: Laws regarding the content of this article may have changed since it was published in 2000. Please seek legal counsel for current information.

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