From Penthouse Pets to Kelly’s Thumbnails: The author, a former attorney for Penthouse who had zealously pursued reposters of his magazine’s nudes elsewhere on the web, writes:
(In a) recent landmark case, Kelly v. Arriba Soft, …(t)he U.S. Court of Appeals for the Ninth Circuit in February 2002 held that posting thumbnails of another’s aesthetic photos is a fair use when done for information-gathering or indexing purposes.
Kelly is a professional photographer known for his shots of the American West. Arriba (now Ditto.com) is a search engine that locates and indexes images and presents them in thumbnail form, as opposed to the traditional text listings one normally gets from an Internet search engine.
To highlight how delicate fair-use analysis can be, the court also held that where a thumbnail of Kelly’s photos could be opened into a larger, higher-resolution image, the copying was not excused as fair use. The larger image constitutes copyright infringement.
The gist of the court’s decision is that thumbnails, for indexing and information-gathering purposes, are of such low resolution that they cannot be used for the same aesthetic appreciation as the original and thus do not expropriate the creative energy of the original author of the image. In fact they may do that person a favor by pointing people with interest in her/his direction.
The decision has caught flak from both those who feel that even thumbnails infringe on the rights of the original image poster, and that one should always use a text pointer (“a href=”) to an image instead of an “img src=” tag; and those who feel that ‘inline posting’ of even fullsize images is permissible — that anything posted on the web is in the public domain, that ‘information wants to be free’, etc.
Apart from the general issue of limitations to access to information and the thorny notion of ‘fair use’, this issue is of particular concern to webloggers, whose practices vary between inline posting of images from elsewhere; through posting of smaller teaser renditions which function similarly, IMHO, to the ‘indexing or information-gathering’ function of the court case; to those who never leech an image from elsewhere. I myself do use “img src” tags to place small online images with some of my weblog entries, as I’m sure you’ve noticed. Often these capture images from news sources or magazines which aren’t going to bother with the copyright infringement aspects of my use.
My practice has only been objected to once in the two-plus years of FmH’s operation. When I used Hokusai’s “Wave” here to point to a gallery of Hokusai block prints someone had lovingly put up at his site, the author actually changed the name of the image on his site to stop my link from working. When I noticed that my link was broken, I first assumed I had just miscoded it and edited my link to point to the image again. He fired off an angry message to me demanding I remove the link and berating me for not having understood his intent in changing the name of the image on his site to prevent my link from working. In addition to his opinionated and unenforceable assertion that all inline linking is illegal, he made several claims to me that illustrate that the issue is broader than that of the treatment it got in Kelly v. Arriba Soft, and which troubled me and might trouble other webloggers who have used others’ images in the way I have.
Of course, Hokusai’s image per se was not this web author’s creative output, and he does not own the rights to the image, as Kelly does. But does the court’s distinction between “information-gathering” and aesthetic enjoyment vanish when the creative energies of a web author have been used in gathering, arranging and contextualizing images on a unique site? Did the court have a broad enough notion of aesthetic appreciation or aesthetic use of an image in its decision? This is how this guy asserted I was leeching off him, and it’s a troubling assertion to me. In point of fact — stating the obvious — weblogs are usually somewhere east of being mere catalogues of neat things found on the web and somewhere west of independent aesthetic creations in their own right. How far away from each of those poles a weblog — either the Platonic ideal, or any individual examplar — is, is a time-honored subject of debate in the relatively brief history of this medium of expression… although more energy, in fact, seems to have been expended in deciding how much weblogging resembles journalism (especially since Sept. 11th) — which, IMHO, as a medium it does not, except in the pretensions of some of its authors — than the equally important question of how creative a medium it is.
I responded to him that I thought I was doing him a favor, noting my appreciation of his site, sending him viewers, etc., but I’m not so sure I wasn’t appropriating his creative energies for my own aesthetic purposes, nor whether it would be wrong if I were. Where do you draw the line? Sampling in hip hop has been found to be fair use in repeated court challenges Certain images enter the lexicon as iconic and get used as signifiers in others’ works of collage or bricolage. At the other extreme, there’s frank plagiarism…
In asking me to remove the link, the web author was also objecting to my exploitation of his bandwidth to save data space on my web server. Of course, my page gets only around 500 or 600 hits a day, around 4,000 for the week that the link to his image would be up on the weblog’s main page and probably another few dozen a year thereafter when people view the archived page. But, again, where should the line be drawn? If my site were ten times as popular, would my appropriation of bandwidth from him matter? A hundred times as popular? Does the fact that he operates a small independent web page as opposed to a giant infomedia site make a difference?
Images of some form or another are, I’m confident, not likely to stop appearing on FmH; my site if anything lacks visual appeal and could use more. The web is, and my own sensibilities are, sufficiently anarchic that I’m not at all concerned with whether I violate some legalistic definition-of-the-moment of ‘fair use.’ Much more, my deliberation is about how to satisfy myself that I’m being ethical and reasonable to others in the web community. I don’t have any clearcut answers about how to do that, although since the Hokusai brouhaha I’ve certainly been more actively involved in thinking about it.
