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Another fair use ruling on photo thumbnails
Whether a given use of copyrighted material is “fair use” is always hard to predict. The Supreme Court has noted that every work “in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.” Pete Seeger said it plainer: “Plagiarism is basic to all culture.” So where do you draw the line between useful borrowing and harmful infringement?
The law is clear on this much: Each instance must be decided on its own merits. Only a court can determine whether the ultimate purpose of copyright — in the words of the U.S. Constitution, “to promote the Progress of Science and the useful Arts” — would be better served by allowing or denying the specific use.
In recent years, one question has been whether it is fair use to publish thumbnails of photographs. A recent case in the U.S. District Court for the Southern District of New York, Bill Graham Archives v. Dorling Kindersley Limited, suggests that very often it is.
Background. The facts in this case were uncontested. In 2003, Dorling produced a biographical book called Grateful Dead: The Illustrated Trip that traced the history of the band. The book was organized around a timeline that was illustrated by pictures of various memorabilia. Among the many images were seven small (roughly 2x3 inches) reproductions of Grateful Dead concert posters that Bill Graham Archives (BGA) published. In preparing the book, Dorling had asked BGA for a use license, and had successfully negotiated permission for all but two of them. When the two companies failed to agree about those two, Dorling went ahead and used them anyway.
BGA then sued for copyright infringement. Dorling’s defense was that the reproductions were fair use.
The court’s analysis. Because the facts were not in dispute, the court considered how the law is applied. The 1976 Copyright Act sets forth four criteria that the courts must weigh.
- Purpose and character of the use. The 1976 law indicates that criticism, comment and research are uses that are more likely to be considered fair, and the court ruled that a biography does fit within this category. More importantly, the court found that the Trip book had a different purpose and character than the original posters.
The purpose of the posters, said the court, was to advertise an event and invite listeners to attend it; there was also an aesthetic purpose as wall decorations. But in the book, the images were used in conjunction with text and other images to commemorate historic events. This use was sufficiently “transformative” that, although it was done for profit, its market was not one that was reserved to the copyright holder.
Therefore, the first factor weighed heavily in favor of Dorling.
Nature of the copyrighted work. Usually, an original or creative work gets more protection than a factual reference to an existing work. In this case, the court found that the posters were of a creative nature, which weighed in favor of BGA.
Amount and substantiality of the portion used. The rules say that a borrower should not copy more of the original work than necessary, and the part that is copied cannot be the heart of the original work. In this case, Dorling didn’t deny that it copied the posters in their entirety.
But the court felt that shrinking the images to roughly a tenth of a page (in a 480-page book) was consistent with the requirement to take only the minimum from the original work. It also reasoned that a thumbnail reproduction was not the essence or heart of the original poster. Therefore, it concluded that the third factor weighed in favor of Dorling.
- Effect on the market. Copyright law is primarily concerned with protecting the ability of a creator to exploit the market for his work. It doesn’t require that a creator attempt to enter each and every potential market. For example, the court said, a book of poster reproductions (even as small as thumbnails) would not be fair use, because the posters’ creator might reasonably produce such a book himself, or license someone to make it for him.
But the law will not protect a market that the creator could not reasonably be expected to enter. Embedded in a book with lots of other material, the thumbnails were not substitutes for the posters, the court said, and no poster collector would buy the Trip book in lieu of the posters themselves. Rather, the thumbnails in the book served a fundamentally different purpose. Therefore, the fourth factor also weighed in favor of Dorling.
The decision. The court therefore found that, on balance, the four factors mostly favored Dorling. It concluded that using the thumbnails in a book such as Trip was a fair use.
In its opinion, the court noted one other consideration: Dorling had made a good-faith effort to gain BGA’s permission, and thereby showed its intent to play fair. This also weighed in Dorling’s favor.
What it means. A trend is starting to appear. A 2002 decision by the 9th U.S. Circuit Court of Appeals, Kelly v. Arriba Soft, held that it is fair use for an Internet search engine to display thumbnails in its search results. Our current case, BGA v. Dorling, is only a lower court decision, but it tends to confirm the notion that the use of thumbnails can be fair. In the future, it will be harder for a photographer to prove infringement when someone publishes thumbnails of his photos.
But the courts are not saying that all thumbnails are OK. In both Kelly and BGA, the courts focused on the fact that the thumbnails were used to create something that was distinctly different from the original images. At the risk of plagiarizing someone, we can say that what matters is not the size, but what you do with it.