Bulletins Story: IMAGE SEARCH ENGINE WINS FAIR USE APPEAL:  PERFECT 10 v GOOGLE and AMAZON

Date: 29.05.2007

The US Court of Appeals has overturned a Californian district court decision in 2005 that Google Image Search infringed copyright in photographs of nude models owned by the American soft porn publisher, Perfect 10.

The district court had decided that thumbnails of Perfect 10’s copyright images stored in Google’s servers and displayed on Google Image Search web pages infringed copyright. The district court found that this did not amount to fair use, drawing distinctions between Google’s use of thumbnails and Arriba’s use which the Court of Appeals had allowed in Kelly v Arriba Soft Corp back in 2002 (see our February 2002 bulletin).

In what was in some ways a re-run of the Kelly case, the Court of Appeals applied the American statutory fair use analysis which involves four factors including:

• whether the use is of a commercial nature or is for nonprofit educational purposes, and
• the effect of the use upon the potential market for or value of the copyright work.

The district court was concerned that Google Image Search could interfere with Perfect 10’s sale of reduced-size images of models for use on mobile phones. The lower court took into account that users would be able to download Google’s free thumbnail images and save them onto their phones. However, this potential harm to Perfect 10’s market was only hypothetical as the district court had not found that any Google users were actually downloading thumbnails to their phones. The Court of Appeals didn’t therefore feel that this factor weighed on either side of the scale. Google Image Search provided a clear social benefit and, all in all, its use of thumbnail copies of images was fair.

The Court of Appeals agreed with the district court’s finding that Google’s framing of full-size images from Perfect 10’s website did not directly infringe copyright. The framed images were not Google’s displays because all Google did was to provide a link that allowed users to see parts of the original web page on a Google web page. Nor did the framing infringe Perfect 10’s distribution right, because distribution requires “actual dissemination” of a copy.

Furthermore, as the court pointed out, it makes no difference how it appears to users: “While in-line linking and framing may cause some computer users to believe they are viewing a single Google webpage, the Copyright Act, unlike the Trademark Act, does not protect a copyright holder against acts that cause consumer confusion.”

The decision on in-line linking and framing will be influential outside the USA, although decisions in other jurisdictions will be based on their own definitions of the particular acts that infringe copyright.

The Perfect 10 fair use decision has little direct bearing on the UK legal position because the US principles governing the exceptions to copyright protection are radically different. The US doctrine of fair use is much broader than the UK fair dealing rules and the corresponding rules in many other European countries.

Charles Swan

Photography & Visual Arts / Digital Media

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