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Kelly vs. Arriba re-visited . . .
Porn Site's Victory Over Google

In my September 2003 PhotoStockNOTES article, I reported on Leslie Kelly's suit against Arriba Soft Corp., and the Ninth Circuit Court of Appeals' determination on appeal. That decision affirmed the District Court and permitted Arriba's internet search engine to continue to display Kelly's photographs in the form of small thumbnail-size images. After the Circuit Court opinion, most people presumed use of thumbnail images would continue to be a fair use under the Copyright Act. I concluded my article by stating that this decision surely will not be the last word.
A court has now revisited the issue in a different context, and, given the changing technology and market conditions, has found that reproducing thumbnail-size images of photographs on an internet search engine may indeed constitute copyright infringement.
The case, Perfect 10 v. Google, Inc., brought in the United States District Court for the Central District of California, concerns Google's image search function in the form of thumbnail-size images as part of its search engine services. As stated by the Court, it "arises out of the increasingly reoccurring conflict between intellectual property rights on the one hand and the dazzling capacity of internet technology to assemble, organize, store, access, and display intellectual property ‘content' on the other hand.”
Perfect 10 publishes an adult magazine and operates a subscription website which features "high quality, nude photographs of ‘natural’ models.” It has invested $36 million over the past nine years to develop its brand, which included photographing over 800 models and creating over 6,000 high quality images, which have been registered with the Copyright Office.
Google is of course the king of the search engines. It indexes websites on the internet via a web crawler. Google, as part of its activities, displayed thumbnail versions of images found on the Perfect 10 website. Google admitted it displayed these thumbnail versions but argued that such use is considered fair use under the Copyright Law. In particular Google relied upon the Kelly decision.
The Court, on a preliminary injunction motion, ruled against Google, finding that the use of the thumbnail images in this instance probably constitutes copyright infringement. The opinion differs from Kelly largely because Perfect 10 was able to establish that it had created a new market for these thumbnail-size images of its nude photos. This new market arises out of the fast-developing technology which permits downloading of images onto cell phones. The Court found that the availability of the same images in the same size on the Google Image Search would more than likely impact upon Perfect 10's market and therefore decrease its sales.

THE NEW TECHNOLOGY IMPACT

This issue really did not arise in the Kelly case, as that Court just made a presumption that there was no market for thumbnail-size images, without any discussion, and apparently Leslie Kelly had not established that he made sales of that size image. This is a prime example of how new technology impacts on existing law.
Google has appealed the decision, so the Ninth Circuit Court of Appeals will have a chance to revisit its own rulings in the Kelly case. In the meantime, Google and other search engines can no longer feel confident that they can continue to crawl the internet and reproduce photography in thumbnail-size images, or any other sizes for that matter, without the possibility of being found to have committed copyright infringement. Clearly, as I stated in connection with the Kelly decision, we still have not heard the last word!

Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.

Ed Note: For earlier reports on the Leslie Kelly vs. ArribaSoft case in PhotoStockNOTES: file:///M:/PRNewsletter/428/www.photosource.com/photoaim/kelly.html
file:///M:/PRNewsletter/428/www.photoaim.com/gen546.html%20www.photoaim.com/list/380d.html%20www.photosource.com/searchengine.html file:///M:/PRNewsletter/428/www.photoaim.com/list/396A.html

Is Unrehearsed Photography Dead?

Gordon Parks, the famed photographer of the last century, died this year. He learned his trade here in the Midwest and perfected it in New York. Parks and other photographers of fame of that era, Joe Schilling, James Whitmore, Hy Perkins, Bob Gomel, Ralph Morse, Paul Schutzer, Art Shay, and George Silk, to name a few, were of the “Unrehearsed Photography School.”
Photo editors in those days respected the talent of these photographers to produce useable images for their publications. No demanding art directors, or “creative consultants”, looked over their shoulder to guide their inspiration. If they did, it was only to tell them what they did not need. These photographers’ efforts produced spontaneity unrestrained by commerciality.
That era is gone. At least in our field of stock photography. Giant digital stock agencies no longer leave photo production to the whims of an individual shooter. Time and production costs demand that they “get it right” the first time. The process is mechanized. And the process driven by current trends and public craze.

THE PROCESS

Shooting a commercial stock photo from scratch is now mechanical. Here’s how it goes. A client comes to the stock photo agency with an idea for a photo for its new campaign. “No, no, no,” the Creative Director of the agency says to the client.
“Our research says that your idea will be out-of-style before the campaign is even launched. What you need is ‘image uniqueness.’ You want to separate yourself from the flock and have a visual identity, a brand awareness that is unmistakably you. Our team can do this for you.”
In the world of commercial stock photography, this is often called “assignment photography.” The Creative Director then consults with his Art Director who then assigns the task to a production staff including a wardrobe manager, cosmetic advisor, scene location consultant, and photographer. Notice that the last team member does the grunt work and pushes a button.
In general, the aim for the stock agency is to produce a generic picture that can lend itself to several interpretations, that ultimately will “sell product,” that is trend-timely, within a budget that won’t exceed its shelf life, and that can be wholly owned by the agency so the image can be “authored” (manipulated/enhanced) later for an extended life. All of this can be reduced to an algorithm that eventually produces an image that is within budget and will be useable within the shelf-life of a contemporary stock photo –three years or less.
This is a complicated way of looking at stock photography and far from the “unrehearsed” photos of the last century. Gordon Parks would chuckle. Or maybe cry. If the commercial stock photos manufactured today seem drained of any spontaneity, now you know the reason.

Robert Sena