 Bob Finlay |
 Cheyenne Rouse |
 Lou Jacobs Jr. |
 Toni Lankerd |
PHOTOGRAPHER TO APPEAL FIRST INTERNET IMAGE COPYRIGHT LAW DECISION
FAVORING ARRIBA SOFT
Huntington Beach, California. Leslie A. Kelly, photographer and
publisher, confirmed today that Judge Gary L. Taylor ruled against him
in his copyright infringement case against Arriba Soft Corporation, now
known as ditto.com, Naperville, IL, in a decision filed on December 15,
1999 (Case SA CV 99-560 GLT (JW) United States District Court, Central
District of California, Southern Division). Kelly filed suit on April
6, 1999, alleging copyright infringement by Arriba Soft's ArribaVista
Image Search Engine when it posted his copyrighted images in its image
search engine without permission and without compensation.
According to Kelly, Judge Taylor concluded that "On apparent first
impression, the Court holds the use by an Internet 'visual search
engine' of others' copyrighted images is a prima facie copyright
violation, but it may be justified under the 'fair use' doctrine. The
Court finds that, under the particular circumstances of this case, the
'fair use' doctrine applies, and the Digital Millennium Copyright Act is
not violated.
In a prepared statement, Kelly stated: "Obviously, I am quite
disappointed with Judge Taylor's ruling not only against me in my
specific case but against all creative artists, graphic designers,
illustrators and photographers. Arriba Soft Corporation took more than
two million images from web sites worldwide, without permission and
without payment, in a commercial enterprise to sell it's software and
used these images to form the core database to operate it's own Internet
business. In July 1999, Arriba Soft changed its company name to
ditto.com but maintained the same image database. In September 1999,
executives of ditto.com were quoted in press stories that they
anticipated achieving annual revenues of $100 million based on their use
of these images.
important to let this decision go unchallenged, in the next few weeks, I
will seek review of the decision and will review potential law firms to
write an appeal as well as seek further assistance from groups adversely
impacted by this decision.
"To determine that Arriba Soft's use of my work without permission was
just a small portion of their overall business and so therefore
constitutes 'fair use' (or 'free use') clearly sends the wrong message
to artists who hope to use the Internet as an important new market for
their services. The Internet is huge and its potential is awesome.
However, with the word 'free' used by so many companies on the Internet
to market their services, there is serious concern that this decision,
left unchallenged, will add to the already widespread and unfortunate
belief that anything and everything on the Internet is 'free' for the
taking.
"I wish to thank all of my fellow members and the leadership of Graphic
Artists Guild (GAG) for their past and continuing financial support in
this case. GAG, Local 3030 of the United Auto Workers, has not only
supported me in my case, but also provided financial support for
freelance writers, led by Jonathan Tasini, President, National Writers
Union, UAW Local 1981, in their recent successful bid to uphold rights
for electronic use of their work."
For background on Kelly vs Arriba Soft, visit
http://www.netcopyrightlaw.com/mediacoverage.asp
About Leslie A. Kelly
Kelly, a photographer and publisher from Huntingtion Beach, California,
operates web sites at http://www.goldrush1849.com and
http://www.showmethegold.com to support his business activities and recently
established a web site at http://www.netcopyrightlaw.com to provide
information about copyright issues and offer copyright related
consulting services. He has written and/or illustrated travel related
articles and published or provided photograhy for books about Laura
Ingalls Wilder (including Laura Ingalls Wilder Country), the Amish
(America's Amish Country) and the California gold rush (California's
Gold Rush Country). Kelly is a member of the Graphic Artists Guild
(GAG) and the American Society of Media Photographers, Inc. (AMSP).
Contacts:
Leslie A. Kelly, Les Kelly Enterprises (714) 846-0437 E-Mail:
leskelly@deltanet.com
Paul Basista, Executive Director, Graphic Artists Guild (212) 791-3400
Web site: http://www.gag.org
Victor Perlman, Managing Director and General Counsel ASMP (215)
451-2767 Web site: http://www.asmp.org
Kelly is represented by Counsel:
Steven L. Krongold, Esq., THE KRONGOLD LAW FIRM, Costa Mesa, CA (714)
546-1800
James G. O'Neill, Esq., LAW OFFICE OF JAMES B. O'NEILL, Costa Mesa, CA
(714) 549-8609