The Catholic University of America

Copyright and Digital Images

V. Context of the Use

A. Size of the Image and Resolution of the Image

There is some consensus that posting "thumbnail" images (125 x 125 pixels) online is considered fair use and not a copyright violation. However, if the system permits the enlargement of the thumbnail image (usually by "clicking" on the image), copyright protection issues must be addressed.

See Kelly v. Arriba Soft Corp. (C.D. Calif.) (December __, 1999) SA CV 99-560 GLT(JW). affirmed in part and reversed in part, Kelly v. Arriba Soft Corp., 336 Fd. 3d 811 (9th Cir. 2003) In this case (commonly referred to as the " case" because the Defendant is now operating under that name), the court held that the Defendant did not infringe the copyright of a photographer (Plaintiff Kelly) when the Defendant's visual search engine retrieved and catalogued Plaintiff's digital photographs that were online. The court held that "the character of the thumbnail index is not esthetic, but functional; its purpose is not to be artistic, but to be comprehensive." Id. at 4. In this sense, use of a thumbnail image was not considered infringing, due to the "transformative nature of using reduced versions of images to organize and provide access to them." Id. at 5. In finding no violation of the Digital Millennium Copyright Act, which in part governs "integrity of copyright management information," the court noted in relevant part the following:

Defendant's users could obtain a full-sized version of a thumbnailed image by clicking on the thumbnail. A user who did this was given the name of the Web site from which Defendant obtained the image, where any associated copyright management information would be available, and an opportunity to link there. Users were also informed on Defendant's Web site that use restrictions and copyright limitations may apply to images retrieved by Defendant's search engine.

Id. at 6. It should be noted that this case concerned a commercial rather than educational context, but is likely to be applicable to both. The principles that can be extracted from the case are the following:

  • The use of thumbnail images is likely to be considered a fair use.

  • Copyright warnings should be posted on all Web sites posting material that may be subject to copyright.

  • The user should be able to obtain the relevant copyright management information that goes with the digital image.

Resolution of the image will also impact the question of fair use. Digitized images with low resolution are less likely to be considered substitutes for the original image itself, and less likely to impact the potential market of the original image.

B. Copyright Management Information

Copyright management information is the title and other information identifying the work including any information set forth on a notice of copyright, the name of and other identifying information about the author of the work, and the name of and other identifying information about the copyright owner of the work including any information set forth on a notice of copyright. See 17 U.S.C. § 1202(c).

For an example of how copyright management information can be incorporated, see the Architecture Slide Library at U.C. Berkeley.

When posting an image online, copyright management information should be posted with the image. The site should also contain standard language that advises users that the information contained on the site may be protected by copyright law, and cautions users against unauthorized use of the images.

C. Access to the Image

Who can access any given image may have a direct bearing on whether or not the use is considered a fair use, as access may have an impact (either positive or negative) on the potential market for the work, one of the four factors considered in a fair use analysis. For example, some people would argue that access to any copyrighted image would have a negative impact on the market for the image, and this should mitigate against a finding of fair use. However, posting a digital image of a lesser-known 20th Century artist might be found to have a positive impact on the market for the work, and this could mitigate in favor of a finding of fair use.

There are a number of different options for constructing a Web site. Whether one uses the Internet or an Intranet system, the audience that will have access to thumbnail images only or access to full images with higher resolution can be predetermined.

See especially, Digital Images and Fair Use Web Sites for a discussion by the University of California Architecture Slide Librarian on what fair use might encompass. The practices of fellow curators may also be considered when deciding how to restrict or open access to the site. What the practice is and why the curator believes it is justified may be helpful in performing one's own fair use analysis in good faith.


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