The Regional Court of Hamburg ruled this week that Google’s previews of images by German photographer Michael Bernhard and comics by Thomas Horn violate copyright law. In two separate cases, the court found that small, low-resolution thumbnails created by Google from the artists’ larger originals for the purposes of indexing online content did not constitute new works that may have justified displaying them without permission.
Copyright-infringement cases are a matter of course for the leading search engine, which maintains that all of its services are entirely legal. Google representatives told PaidContent that the search engine intends to appeal the German decisions and believes its image search benefits both the general public and the Web sites that receive valuable traffic as a result of searches.
The courts of the world remain divided in much the same way as the public, a part of which advocates an open online environment, while others seek to protect their intellectual property. In 2006, a Belgian court found against Google when its news service indexed articles by newspaper company Copiepresse, forcing the search engine to remove the content—but the case was appealed and the battle over damages is still ongoing. In the U.S., similar decisions were made and then reversed, while some cases that involve similar issues—such as Viacom’s $1 billion lawsuit—remain in litigation.
The issues surrounding the German case are nearly identical to the lawsuits filed against Google by Agence France-Presse and U.S. adult publisher Perfect 10.
AFP sued Google in 2005 for posting the news agency’s textual and image content without permission but withdrew the lawsuit two years later, upon striking a deal with Google. The Associated Press has a similar agreement in place.
Perfect 10, which also sued Microsoft and Amazon on the same grounds, filed a preliminary injunction to stop Google from creating and distributing image thumbnails of the agency’s copyrighted images. The court granted the request in 2006 but reversed it on appeal in 2007.
As such, the U.S. case of photographer Les Kelly v. search engine Arriba Soft Corp. remains the legal precedent for thumbnails on the Internet. This 2003 decision directly opposes this week’s German ruling by finding that thumbnail creation is “transformative” in that it improves access to images on the Internet, thus qualifying for the fair-use exception of the copyright law.