Retrospective - Thumbnails and Inline Linking

The Internet has been the vocal point for most important developments regarding copyright since its emergence. Many cases have dealt with all manner of issues, such as ISP liability and over electronic scans of books, and there seems to be no end in sight as the law tries to adapt and mold itself to the electronic sphere. A staple feature of the world wide web is thumbnailing, where a smaller image is given to represent the real picture, often used in both search results and web pages when linking to said pictures, to make their identification and finding easier. The legality of this practice can be questioned, especially since it does, prima facie, create a copy of a work when it might not be sanctioned. However the determination of the aforementioned legal conundrum happened in the early years of the 21st century in the US Court of Appeals.

The case in question is Kelly v Arriba Soft Corporation, decided in 2002 initially, with an amended final decision being published in 2003. This concerned professional photographer Leslie Kelly, who posted some of his work on his website or others which duly licensed Mr. Kelly's works. The defendant, Arriba Soft, were the operators of an internet search engine called Ditto (which has since gone bankrupt), which displayed smaller versions of images as a part of their given search results as opposed to merely a text link to the image. Through this they amassed a database of pictures by copying the images from other websites such as Mr. Kelly's website or others which contained his works. Once Mr. Kelly found out that Arriba Soft had copied his works onto their database, he subsequently sued the corporation for copyright infringement. 

A very different thumbnail

In their judgment the Court of Appeals had to assess whether Arriba Soft's use of the images would fall under US fair use in section 107, as the reproduction of copyright protected images is only available to those who own the copyright or use the works under fair use. In their judgment the Court saw that the use of the works was both commercial and transformative, although regarding the former the use's nature was more incidental than purely for commercial gain, as Arriba Soft did not directly benefit from the displaying or selling of the images. Due to the smaller size and lower resolution of the images, their use of said images was clearly transformative from the more aesthetic nature of Mr. Kelly's work when displayed in full. As Justice Nelson stated: "The Copyright Act was intended to promote creativity, thereby benefitting the artist and the public alike... Arriba's use of Kelly's images promotes the goals... The thumbnails do not stifle artistic creativity because they are not used for illustrative or artistic purposes and therefore do not supplant the need for the originals. In addition, they benefit the public by enhancing information-gathering techniques on the internet". 

The nature of Arriba's use of Mr. Kelly's work was very different to their intended use, being more as aesthetically pleasing works of art as said above, which the thumbnails clearly were not. Even though Arriba Soft had copied the entire image into their database the Court saw that this was reasonable for their use and would not be substantially enough to merit infringement. Finally, the Court saw that Arriba Soft's use of the images did not harm Mr. Kelly's intended market, as clearly one can say that the arts market would be wholly different from that of search engines. In addition Justice Nelson stated well that: "By showing the thumbnails on its results page when users entered terms related to Kelly's images, the search engine would guide users to Kelly's web site rather than away from it". Clearly the thumbnails would only increase the potential market share of Mr. Kelly's work, directing traffic to his website all the while giving search engine users a preview of works quickly and potentially increasing their interest. As such the Court decided that Arriba Soft's use fell under fair use.

Thumbnails can be said to be very essential to modern uses of search engines, and create a great avenue from which both parties can benefit. Without them finding images would be exponentially harder. This is clearly demonstrated by the quick modification of the Court of Appeal's initial decision, which would have impeded such functions through its decision that displaying full-sized images would infringe copyright. Search engines are a complex beast, and will continually evolve, challenging the legislature and judiciary to adapt and potentially protect the free operation of the Internet and discovery of its content. 

Elementary Dear Watson - Sherlock Holmes Faces Copyright Challenge

The 1880s were a time of invention, with the creation of a new form of toilet paper, the modern seismograph and one of the most iconic characters of British literature, Sherlock Holmes, all happening in the latter decade of the 19th Century. Without discounting the impact the former two have had on human history, the story of Sherlock Holmes in its many forms has inspired millions of people, spawning countless adaptations and reboots in its lifetime. In this the character of Sherlock Holmes and all the other cast have immense value to the copyright holders, the Arthur Conan Doyle Estate.

The copyright for Sherlock Holmes has already expired in Canada and the United Kingdom, in 1980 and 2000 respectively, but the mastermind of deduction still remains protected in the United States on part of some of Sir Arthur Conan Doyle's pieces till 2023. As such our hero is still held tightly to by its copyright holders in the US, but this has now been challenged.

In a law suit filed in early 2013, Leslie Klinger, a California based lawyer and Sherlockian expert, is challenging whether the character of Sherlock Holmes should be protected by copyright due to most of Sir Arthur Conan Doyle's works having been released into the public domain. The character of Mr. Holmes has been vigorously protected by the Estate, demanding licencing fees for the use of the detective's character and persona, as opposed to the copying of the stories he resides in. According to the Estate "Holmes is a unified literary character that wasn't completely developed until the author laid down his pen", clearly arguing that the character of Mr. Holmes should be protected for as long as there are works on him which are protected, extending the period till 2023 in the US. Under the defense's statement regarding the complexity of Mr. Holmes' character: "Sir Arthur continued creating the characters in the copyrighted Ten Stories, adding significant aspects of each character's background, creating new history about the dynamics of their own relationship, changing Holmes's outlook on the world, and giving him new skills. And Sir Arthur did this in a non-linear way".

A modern day representation of Mr. Holmes' complexity

As has been discussed on this blog, and by other legal authors throughout the decades, copyright protects the author's expression, not merely the ideas represented in the work. What is argued by the Estate, clearly, is that Sherlock Holmes' character is not merely an idea itself, but an intrinsic part of the expression of Sir Arthur Conan Doyle, and should still be protected. As it stands there is no legal precedent dealing with the character of a person in a long-running literary series, so whether protection would be offered remains a mystery for the most part.

According to Mr. Klinger the Estate initially failed to appear in court for the motion for summary judgment by Mr. Klinger, finally filing their opposition in September. Since then the matter has been passed onto Judge Castillo for a final judgment on the matter.

Should a character be protected as a 'complex personality' which has developed over years, even decades, in the span of a cavalcade of literary adventures? Arguably no, as this would mean copyright would extend its grip into the domain of ideas as opposed to expression. The character or personality of any given fictional personality is merely an idea of what that person is, thinks and how they see and understand the world around them. The expression of those personality traits and how they impact the story surrounding the character should be, and has been,  protected; however the mere idea of those traits encapsulated in a fictional persona do not merit extended protection in themselves. Whether the court would disagree with me will remain to be seen.

Source: The Guardian