Now that it is apparently okay to post thumbnails for reference, if what I understand is true following Kelley v Ariba that is, can anyone point to an agreed-upon definition of what constitutes a thumbnail image? And I sure hope its not something like 100 x 100, because that's hardly enough to give reference to an eight foot canvas.
____________________________
Sam Quigley, Director
Digital Information and Technology
Harvard University Art Museums
32 Quincy Street
Cambridge, MA 02138
617-496-4292
www.artmuseums.harvard.edu
Kelly v. AriribaSoft was a circuit court decision, binding upon the two parties involved. It was not a Supreme Court decision, nor new legislation. It is not exactly "now apparently okay to post thumbnails" in all situations. This decision applied to the particular circumstances in the particular case. And there certainly is no agreed-upon or legal definition of the dimensions of a "thumbnail."
To use the precise legal terminology: it depends.
I'm re-posting here two previous messages on the subject, which more or less lay out the problem:
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Subject: Re: IP SIG: Court Rules 'Thumbnail' Images OK, Full-SizedCopies Not
To: [email protected]
As with much of copyright law, context is key. Both the district court and the 9th Circuit in Kelly v. Arriba Soft found that the thumbnails were allowable as "transformative use" because (1) they served a useful purpose, i.e. allowing a "preview" of the image before it was accessed; and (2) because the thumbnails had been reduced in resolution so that they did not form an effective substitute for the original. If there were some context in which the thumbnails could substitute for the original (especially if the image were not much reduced in size or resolution) the outcome might be different.
Ditto for ditto.com, if you'll pardon the pun. I have yet to see a case where a court has held that merely linking to the web page of another constituted copyright infringement IF the link brought up the original page in its entirety and not merely a portion of it framed by the alleged infringer's own site (Ticketmaster v. Microsoft brought up this issue, but the case was settled without written opinion). Could such linking constitute infringement? Under appropriate circumstances, I guess it could, but it'd be hard to convince a judge that just putting up a link to a publicly available web page, without more, constitutes infringement.
When considering when a use is "fair use," at least under U.S. law, it's always important to go back to the original statutory factors in section 107 of the Copyright act and and consider (this is a paraphrase):
1. The purpose and character of the use, including whether the use is commercial in nature or for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.
The important thing to remember is that the same use of the copyrighted work can be fair use in some circumstances and not others. A copy of part of an article made by a researcher working on his master's thesis is much less likely to be considered infringement than a copy made by a lecturer preparing materials for paid seminars (especially if a copy is made for each of the paid attendees). A fairly good reproduction of a work of art being sold by the owner of the physical copy might be fair use, where the same image on a paid access web page highlighting different artists' works without their permission might not.
Kevin W. Grierson
Willcox & Savage, P.C.
1800 Bank of America Center
One Commercial Place
Norfolk, Virginia 23510
mailto:[email protected]
ph: 757/628-5603 fx: 757/628-5566
http://www.wilsav.com
>>> [email protected] 02/10/02 11:26PM >>>
It may be that nobody makes a big point about thumbnails, but at the NINCH
Town Meeting at CAA in NYC a few years ago, Jane Ginsburg (Columbia School
of Law) argued vociferously that showing unlicensed thumbnails was an
infringement -- and that there was no way to think of them otherwise. And,
in response to the notice of this recent Ditto.com decision that Maryly
Snow posted to several lists, VRA-L among them, Robert Panzer, executive
director of VAGA (and a member of the CAA Intellectual Property Committee),
also expressed his view that the mounting of thumbnails without permission
was potentially infringing.
I disagree with this position; but one shouldn't take it for granted that
everyone consideres the practice is acceptable.
As I understand the recent Ditto.com ruling -- linking to the larger
pictures was considered an infringement, but not absolutely infringing in
all situations. In this case, Ditto.com live-linked to images and placed
them within their own frames -- which contained advertisements. In other
words they took these images to further their own commercial interests as
they denied the artist opportunity to use his own work for his own benefit.
As I see it, the decision does not explicitly rule out posting (or linking
to) all copyrighted images. Different facts might produce a different decision.
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