A few years ago, at the behest of some photographers, we wrote about whether uploading images to Flickr.com or Instagram was equivalent to “publication” under the Copyright Act. We concluded that it is. Another “photographic” issue has arisen in our practice, whether thumbnail images posted on a website or on an e-mail, could be construed as permissible “fair use” of another photographer’s original images. The answer to this question requires a complex analysis of the fair use factors: (1) the purpose and character of the use, (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. The results of the four-factor analysis are not always predictable, making fair use a tricky area of the law. On the “thumbnail” issue, however, there is a distinct trend. The more transformative (i.e., changed) the use of the thumbnails and the more distant the purpose of the thumbnails are from the original purpose of the images, the more likely the use will be construed as fair use. Here’s the case law in a nutshell.
Kelly v. Arriba Soft Corp is the original case on this issue and still good law. In 2003, Arriba Soft Corporation operated an Internet search engine, which displayed results in the form of thumbnail images linking back to the original image. During the same time period, a professional photographer, Leslie Kelly, discovered that his works were incorporated into Arriba’s database without his permission. He sued the company for copyright infringement. The lower court found that although Kelly had established a prima facie case of copyright infringement (Arriba did not own the works but copied and displayed them), Arriba’s copying represented a non-infringing “fair use” under section 107 of the Copyright Act. Kelly appealed to the U.S. Circuit Court of Appeals for the Ninth Circuit, which affirmed the finding of “fair use.” The court held that Arriba’s use of the images was “transformative.” By transformative, the court meant that Arriba’s use of the images “added a further purpose or different character” to the images:
Although Arriba made exact replications of Kelly’s images, the thumbnails were much smaller, lower – resolution images that served an entirely different function think Kelly’s original images. Kelly’s images are artistic works intended to inform and to engage the viewer in an aesthetic experience…. Arriba’s use of Kelly’s images in the thumbnails is unrelated to any aesthetic purpose. Arriba’s search engine functions as a tool to help index and improve access to images on the Internet and the related websites.” Hence, the purposes were different and therefore the copying was “transformative.”
But what if you copy images and just make them smaller but not necessarily as small as a thumbnail? The court in Bill Graham Archives v. Dorling Kindersley Ltd addresses this issue. Bill Graham Archives (“Bill Graham”) sued a publisher, Dorling Kindersley Limited (“DK”) for its use of several Grateful Dead photographs in a book entitled Grateful Dead: The Illustrated Trip (“Illustrated Trip”). Here, the copied images were not in the form of thumbnails but low-resolution copies of the originals arranged in a chronological timeline. The Court of Appeals for the Second Circuit wrote that DK’s “actual use of each image is transformatively different from the original expressive purpose.” The Illustrated Trip is a biographical work about the 30-year history of the Grateful Dead but the original images fulfilled a different purpose, that being the artistic expression and promotion of the band. The expressive value of the images was diminished by decreasing their size, inserting them into a timeline and adding other textual and graphical works that were not part of the original. Therein lies the transformation.
Later decisions follow the similar reasoning. The Ninth Circuit Court of Appeals in Perfect 10, Inc. v. Amazon.com, and Google, Inc. held that Google’s displaying of thumbnail reductions of adult images in its search results was “highly transformative” and, therefore, fair use. It wrote that “although an image may have been created originally to serve in entertainment, aesthetic, or informative function, a search engine transforms the image into a pointer directing a user to a source of information.”
More recently, in 2015, the U.S. District Court in the Eastern District of Missouri in Stephen Kennedy v. Gish, Sherwood & Friends, Inc. held that copying of low-resolution images for use in advertising mockups and presentations constituted fair use. Stephen Kennedy, a professional photographer, sued the Gish company for infringement arising out of the Gish’s taking screen captures of his images for use in advertisement mockups. The court concluded that the alteration of those images into storyboards, PowerPoint presentations, and video was sufficiently transformative to render Gish’s use as fair use.
Bottom Line: the repurposing of thumbnail images is permissible fair use so long as the use of those images has been transformed from their original purpose. The greater the transformation, the more likely a court will find fair use.
If this is a bottom line issue for you, contact the lawyers at Lipton, Weinberger & Husick. They love photography!
— Adam G. Garson, Esq.