Copyright in the networked world: new rules for images
| DOI | https://doi.org/10.1108/07378830210734025 |
| Published date | 01 June 2002 |
| Date | 01 June 2002 |
| Pages | 241-244 |
| Author | Michael Seadle |
| Subject Matter | Information & knowledge management,Library & information science |
Copyright in the
networked world: new
rules for images
Michael Seadle
Introduction
The district court found that Kelly had established
a prima facie case of copyright infringement based
on Arriba's unauthorized reproduction and display
of Kelly's works, but that this reproduction and
display constituted a non-infringing ``fair use''
under Section 107 of the Copyright Act. Kelly
appeals that decision, and we affirm in part and
reverse in part. The creation and use of the
thumbnails in the search engine is a fair use, but
the display of the larger image is a violation of
Kelly's exclusive right to publicly display his works
(Kelly v. Arriba, 2002).
Most photographs are ``original''in one if not more
of the three respects set out in the treatise and
therefore are copyrightable. Plaintiff's problem
here is that it seeks protection for the exception
that proves the rule: photographs of existing
two-dimensional articles (in this case works of art),
each of which reproduces the article in the
photographic medium as precisely as technology
permits. Its transparencies stand in the same
relation to the original works of art as a photocopy
stands to a page of typescript, a doodle or a
Michelangelo drawing. Plaintiff nevertheless
argues that the photocopier analogy is inapt,
because taking a photograph requires greater skill
than making a photocopy and because these
transparencies involved a change in medium. But
the argument is as unpersuasive under British as
under US law (Bridgeman v. Corel, 1999).
These two recent court cases have redefined
how images may be used on the Internet
without copyright infringement. The
Bridgeman case is based explicitly on British as
well as US law (the Bridgeman Art Library is
British). The Kelly case rested entirely on the
definition of fair use in Section 107 of the US
copyright law (17 USC 107 (US Copyright
Office, 2000)) and therefore, has more limited
(or perhaps merely more complex)
implications. While neither case suggests any
tolerance for the unrestricted copying of
images, they enable a vastly greater use of
Web-based images than has been possible for
those eager to follow the law.
Precedent
Photography came into existence after the
origins of both the US and British copyright
laws. In fact, the original US copyright law of
1790 covered only maps, charts and books.
Etchings and engravings were added in 1802,
The author
Michael Seadle is Editor of
Library Hi Tech
. He is also
Digital Services and Copyright Librarian at Michigan State
University, East Lansing, Michigan, USA.
Keywords
Copyright, Image processing
Abstract
Two recent court cases have redefined how images may be
used on the Internet without copyright infringement. The
Bridgeman case is based explicitly on British as well as US
law.
Kelly
v.
Arriba
rested on the definition of fair use in the
US copyright law, and therefore has more limited (or
perhaps merely more complex) implications. Before these
cases, essentially all photographs since 1923 had the
presumption of copyright protection. Now exact copies of
public domain art, and perhaps other images that lack
originality, are in the public domain. And thumbnail copies
of protected images can be regarded under at least some
circumstances as being safely within the US fair use
guidelines.
Electronic access
The research register for this journal is available at
http://www.emeraldinsight.com/researchregisters
The current issue and full text archive of this journal is
available at
http://www.emeraldinsight.com/0737-8831.htm
On copyright
241
Library Hi Tech
Volume 20 .Number 2 .2002 .pp. 241±244
#MCB UP Limited .ISSN 0737-8831
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