Permission-less innovation? No. Protections remain for imagery, photographers
We have watched the Google Books case develop over the years and read the Court’s recent opinion predominantly relating to whether it is ok to show short “snippets” of non-fiction out of print books, amongst other content.
There will be temptation for some to over-react and celebrate a perceived death of creative protection and a wild-west era of “permission-less innovation.” Nothing could be further from the truth. Photographers should feel assured that copyright for their imagery remains well protected. Why?
The Court’s ruling provides that:
- Copyright law is there to stimulate creative activity. We agree.
- A search engine’s use of “small images” or “thumbnail images” may be permissible. We agree.
- It is a significant factor in favor of a finding of fair use that the defendant only used a small snippet of text that would not supplant the full-length book or a small-size image that is inadequate to offer more than a glimpse of its expressive value. We agree.
So what do we know from this ruling? We know that, as always, a search engine’s display of small, thumbnail-size, low-resolution imagery or small snippets of text from full-length books in response to a search query is a fair use of copyrighted material.
We know that search engines are not permitted to provide a substitution or replacement for the entirety of a creative work.
And we know that Google prevailed in the Google Books case in part because it was not providing a “tool to be used to read books.”
But books are not photos…
Google DOES, however, provide a tool to view large-format high-resolution imagery; and while Google Books significantly limits the amount of text displayed in search results, Google Images displays the whole of a creative work with imagery and does so with high-resolution images.
There is more to be learned from this case and others, but copyright law remains a strong protection to inspire innovation for creators –- including the more than 150,000 photographers, videographers artists and musicians whose work we represent at Getty Images.
We look forward to continuing this conversation.
Editor’s note: John Lapham is Senior Vice President and General Counsel for Getty Images.