Daily Mail rips off my wife's photo after asking permission and being turned down

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89 Responses to “Daily Mail rips off my wife's photo after asking permission and being turned down”

  1. thebelgianpanda says:

    Why do acts of such asinine stupidity make me smile?
    I hope this time next week two charities are a thousand pounds better funded.

  2. INB4 “You advocate for copyright liberalization, therefore complaining about others’ abuse of your copyright is hypocrisy.”

  3. Bill says:

    Now watch the Gap sue Alice for copyright infringement.   

  4. Arty_Deco says:

    Cory, correct me if I am wrong, but you’re being a full blown hypocrite here.  I mean I KNOW that the Daily Mail are assholes on principle, but everyone in your camp has told me time and again that “copying” is fun, it’s ok, and it gets one exposure that the non-copiers just plain ole never get.   So chin up Cory, this is just good exposure… in more ways than one ;)

    Now please feel free to correct. 

    • overground says:

      The difference here being (as far as I see it) that the Daily Mail is a commercial organisation, using this photo for profit, rather than simply sharing it or using it personally. Although I can’t say it seems totally in line with the idea of copyright liberalization.

      • Arty_Deco says:

        I often say that the whole copying thing (private or business) is bullshit since it’s a pure flat out cop out on responsibility and paying money for the good things you own.  The average person wouldn’t and couldn’t copy an Aston Martin.  Your only hope is to buy one.  Or you can steal it in which case you are exactly the same as the person copying my image for sale, or computer program, or song, all of that copying is pure theft.  I can’t get past seeing it that way and I’m just being conversational.

        • thebelgianpanda says:

          infringement, not theft, they are two different things even if both are against the law.

          • Arty_Deco says:

            Aren’t they both a form of theft?  One is for intellectual property the other for objects, etc?  Asking, don’t know. 

          • thebelgianpanda says:

            no, infraingement really isn’t theft.  theft removes property from the owner, infringement doesn’t.  again, it doesn’t mean both aren’t illegal, but there are vastly different implications for each and different laws/punishments/standards.

          • nerys says:

            Please go look up the definition of the word THEFT.

            it does not apply. nothing was stolen. No one is deprived of property.

            lets take IP and Property out of the equation for a moment to simplify it.

            Think of it this way. you BUY a fruit of vegetable. you take some seeds from that purchased fruit and plant them and GROW MORE.

            you just “copied” that fruit for all intents and purposes.

            do you own the person you bought the original from anything?

            lets change it a bit more. you take the seeds from a fruit someone else threw away. Do the same thing.

            did you steal anything?

            no of course not.

            Now imagine you own a car. Geordi walks up and “scans” your car with his tricorder. When he gets back to enterprise he “replicates” the car. yours is still sitting right where you left it.

            Did he steal anything? No of course not. he COPIED it. its MADE of his own property of protons neutrons and electrons.

            This is why its called “copyright infringement” and not “copyright theft”

            Its almost impossible to “steal” intellectual property.

            if I copied your work and STATED that it was “MY OWN” work and convince the courts and world of this “FACT” then you could legitimately argue I “stole” your intellectual property.

            You are deluded and or brainwashed into thinking its theft because the industry WANTS it that way. because we have a stronger reaction to “theft” than “infringement”

            I am not saying willy nilly infringement is not “bad” or should not be “illega but its NOT THEFT under any legitimate  definition in the english language.

            its infringement.

          • Angryjim says:

            what if you consider they are making money on advertising on that article? Shouldn’t Cory share in that profit through some sort of compensation? I don’t know that you’d call it theft, but considering they asked for permission, and were denied, then used it anyway.. it’s at the very least a slap it the face.

          • alan says:

            Yes it is infringement and it does not just happen to the “industry”. It happens to people who care about integrity, are passionate about what they do and struggle to push their work forward. Technically its infringement but it sure feels like theft.

          • drklassen says:

            If the fruit in question was grown from Monsanto seed, they seem to think you owe them.  Even if the seed just drifted in the wind onto your land and grew by itself.  And courts have upheld their claim.  How’s that for “messed up”?

    • Fernando Montelbon says:

      “Then the Mail – which makes a practice of threatening bloggers with big copyright lawsuits when their photos and copy are reproduced — just went ahead and ran Alice’s photos”

      This here seems to be the point of contention.
      If anything all Alice did was to hold them to there own conditions. Seems to me the Daily Mail are the hypocrites.

    • Cory Doctorow says:

      Well, if you believe that I think all copyright laws should be abolished, then yes, this would be hypocrisy.

      But of course, I believe nothing of the sort.

      The use the Mail made isn’t fair dealing or fair use (as I said in the article) because they stripped out the attribution, reproduced it at full size, and did not reproduce it for the purpose of criticism or commentary on the photo (the criticism and commentary was related to the photo’s subject).

      What’s more, the Mail clearly believes that this isn’t fair dealing — which is why they sought permission.

      The straw man argument you advance here is about as intellectually honest as saying that a guy who advocates for changing the speed limit on a specific stretch of highway believes that there should be no speed limits anywhere. I don’t know who “everyone in my camp” is, but I speak for myself and don’t feel any particular need to ensure my beliefs don’t conflict with some hypothetical (and possibly imaginary) “camp.”

      • Arty_Deco says:

        Cory, you’ve got your standard replies to this argument down and you use them well and often.  The bigger point is that the general copying you espouse and support on the net is just this kind of non-attributed, random, and profitless theft that occurs the most.  How many folks own Photoshop CS5 and didn’t pay for it, I wonder?  You’re always calling for a Utopian concept of copying & copyright, and you’re not alone it seems.  But the cold hard reality is that people just get flat out ripped off.  While I’d want attribution, I better damn well get paid. Right?

        Oh, here is your camp, no?   http://questioncopyright.org/minute_memes/copying_is_not_theft

        http://questioncopyright.org/

        • Cory Doctorow says:

          No. That is another website. Why would you think it was my site?

          Your argument amounts to, “Someone else said some stuff, and you said something different, therefore you are a hypocrite.”

          Making up random, vague positions I’m said to have taken (“Utopian concept of copying,” whatever that means”) and criticising me for not hewing closely enough to them is a bizarre project and I’m not sure why you’d want to pursue it.

          • Arty_Deco says:

            I never said it was your website, it’s a group who basically shares your outlook on Copyright, I found them via the EFF, and you support them don’t you?  They’re certainly saying the same things you are about Copyright.  As far as Utopian goes when you speak about copyright it seems to me to be very idealistic.  Finally,  complaining about this infringement just seems hypocritical.  Now that you’ve explained yourself I see better where the hairs are split.  Thanks.

          • thebelgianpanda says:

            and that is why discussions like this get heated, because there are wide swaths of grey.  simply put, i believe copyright as it stands right now is a) too vague, and b) stifles innovation and creativity.  the social contract (and accompanying laws) put too much burden on creators.  but infringement, wherever you draw that line, should still be against the law.

          • Cory Doctorow says:

            “They’re certainly saying the same things you are about Copyright.”

            No, they’re not.

        • Xof says:

          You might want to reply to the real Cory Doctorow, rather than the Cory Doctorow in your head.

      • nerys says:

        Ouch. Sting. Agree 100%. make a stink and make them pay. They shove these stinking rules down our throats and when its turned around the other way….. man I hate that.

      • cornicefire says:

        Oh right. And it’s okay for you to save all of that money on sending a photographer to the Edinburgh fringe festival by simply using a slightly smaller version of the photo:

        http://boingboing.net/2011/08/17/edinburgh-fringe-show-asks-audience-to-shred-banknotes.html

        Fair use/dealing was created so people could actually comment about someone else’s work. It’s not to let you illustrate your blog without paying the artist or photographer. And from everything I hear from your ad sales guys, you’ve got the cash to pay the photographers.

        Consider this post. Did you attribute the text to the NY Times? Did you pay for the photo in this post? No. You just thank someone named “David”, not the name on the byline.

        http://boingboing.net/2011/08/17/edinburgh-fringe-show-asks-audience-to-shred-banknotes.html

         This is why people think you’re a hypocrite. It has nothing to do with your incredibly complicated hair-splitting debates about copyright theory. It’s because you knock off your posts in 10 minutes and nick photos whenever you can. There are dozens of examples every month from your blog that cut corners again and again. It’s so easy to have a blog when you don’t spend any time on research or photography. 

      • RioMcT says:

        Cory, how many times have you posted on BoingBoing in defense of a rights holder trying to stop the distribution of their work without their consent?

  5. Steve Nelson says:

    The New York Times used one of my photos without attribution, even after I asked them to make the correction.

  6. thatbob says:

    Who wants to bet that their budget for charitable giving is zero, and their budget for defending themselves against claims and lawsuits is in the millions?

  7. thebelgianpanda says:

    le sigh…

    Many BB’ers advocate copyright reform, not abolition–specifically when it comes to fair use.  There is nothing even remotely hypocritical about this post.

    Besides, if it isn’t attributed, how is it exposure?

  8. PnubK1 says:

    granted a legal battle won’t
    necessarily aid your side but these people shouldn’t be allowed to
    get away with this. Perhaps the argument
    shouldn’t be focused on money but just attribution for pics and
    quotes.

  9. Joel Phillips says:

    Hypocrisy or not, why not sell the suit to these guys and kill at least one bird with one stone?

  10. Come on Daily Mail, do the morally right thing and cough up the money.

    • Fernando Montelbon says:

      “Come on Daily Mail, the the morally right thing and cough up the money.”

      Kompani, You should be a fantasy writer with surreal scenarios like that. I can’t even fathom combining the Daily Mail with “morally right” in anything approaching a positive sentence. 

  11. iCowboy says:

    Good charities, but for maximum pain you should have gone for ones supporting gay rights and those that help immigrants. The thought of Paul Dacre funding the people he decries and persecutes on a daily basis would bring a warm glow to the stoniest of hearts.

  12. Dave Faris says:

    It’s a mashup, isn’t it?

  13. gilly youner says:

    Suing is a pain. but against those wankers, would still be worth a shot. just would hope it wouldn’t take this long http://bit.ly/mU4SY0

  14. gilly youner says:

    unless GAP has recorded policy on photo within shops. :(

    • mccrum says:

      Unless it was taken from a public street through a window, in which case the Gap has no leg to stand on.

    • nerys says:

      ACtually it would not matter if they have a recorded policy that does not make the picture illegal and does not alter the copyright issue.

  15. thebelgianpanda says:

    a mashup can be transformative.  transformative works can be covered under fair use.  ianal but i haven’t heard of a newspaper article copying a photo verbatim and having that ruled as fair use.

    look, the line between fair use and infringement is many shades of grey.  and when i personally say ‘copyright reform’ it specifically speaks to making that line clearer, not abolishing fair use or copyright.

    • xenphilos says:

      Agreed. Much of this copyright problem is making the system clearer, and I hope more things like Creative Commons that make copyright on something clear in one sentence spring up.

  16. you may also wish to read this concerning the Daily Mail being a bunch of thieving w@nkers – http://www.partoftheplan.org/2011/07/newspapers-are-thiefs.html

    • The Murkalator says:

      Thanks for this post! I am currently still fighting them for my money, I have had to take it to the small claims court which they are currently still ignoring and havent been in contact. The Guardian has offered me a sum of money which I have accepted. Where as the Daily Mail are still being stubborn as. People really need to fight the papers and pursue any money owed for use of photos. IT IS ILLEGAL to use photos with out consent. 

  17. Islington says:

    I enjoy seeing the Daily Mail caught up in their own mess. Does this make me a bad person?

  18. Noah Nickels says:

    dirty dirty assbags! Shut these effer’s down.

  19. thebelgianpanda says:

    but copyright infringement, by it’s definition, isn’t theft.  face value, it’s *called* copyright infringement.  dig deeper, and you find it’s a social contract to give a creator a *limited* monopoly on ideas, with the intended benefit of fostering commerce and creativity.  and even though copyright and theft in the United States have a similar means for prosecution to end (copyright term vs. statute of limitations), they serve completely different purposes.

    infringement is illegal.  defining infringement is complicated.  caring about how it is defined *does not make you a hypocrite*.

  20. Stef says:

    Unfortunately, but not entirely unsurprisingly, The Daily Mail has a somewhat extensive history of this kind of behaviour:
    http://www.bjp-online.com/tag/daily-mail

    I’m sure the British Journal of Photography would be interested in covering this story and assisting your wife in obtaining suitable compensation. Also, call my cynical, but I wouldn’t trust the Mail to donate her unauthorised usage fee to charity, I’d collect the money directly and do it myself.

    • KianWee says:

      Don’t they get tax deductions for Charitable donations? If so, wouldn’t it be be better for Alice to charge them 2000 and then give it to charity?

      E.o.M.

      • billstewart says:

        KianWee, I don’t know UK tax law, but if this were in the US, either giving money to charity or buying the rights to a picture from Alice would be a legitimate business expense, so it wouldn’t matter.  (Hiring Alice as an employee would be different.)  

  21. Ryan Kittleson says:

    Why didn’t this so-called NEWS organization just send a staff photog down to the gap to snap a pic of their own?

  22. LYNDON says:

    I think, at least in New Zealand law, use for news reporting is
    specifically mentioned as fair use (with a credit). I suspect papers tend to
    assume it applies to anything they do.

    If course, there’s no legal exemption from being a dick.

  23. grimc says:

    What’s really shocking to me is that the Mail asked permission in the first place. Because they contacted you and asked for it, they knew permission was required. In the US, anyway, that’s pretty much a slam dunk case. They would’ve been better off not to ask at all, and apologized afterwards.

    • extra88 says:

      I agree that what the Daily Mail has done is wrong but I disagree with this, “Because they contacted you and asked for it, they knew permission was required.” In the U.S., fair use is defense used in court and being taken to court sucks, even if you’ll win. Therefore, even if you have the clearest fair use case in the world, you might still ask permission to avoid the possibility that the copyright holder doesn’t see it as fair use.

      Asking permission can also be a way of showing respect for the original creator. Weird All Yankovic doesn’t need permission to create his parodies but I think he asks anyway to avoid legal hassles and out of respect for fellow musicians.

  24. Guest says:

    Cory, do you have a page that lays out your full position, like a manifesto?

  25. Eric Rucker says:

    Here’s something simple…

    Attribution and copying are two different things, but because of how the legal system is set up, they’re tied together.

    Even the most ardent supporters of copyright abolishment tend to want attribution of works. (Except for the ones that want copyright abolished so that they can pass other people’s works off as their own.)

    So, failing to give reasonable credit for a work could be completely separate from copyright.

  26. freshacconci says:

    You don’t actually like to read responses, do you? You are attributing a very general set of ideas to Cory and then call him a hypocrite for not adhering to those supposed ideas.

    “I never said it was your camp, it’s a group who basically shares your outlook on Copyright.” Yeah, you did. Your words: “your camp”. “[I]t’s a group who basically shares your outlook on Copyright.” According to you. “As far as Utopian goes when you speak about copyright it seems to me to be very idealistic.” That again is your opinion, your interpretation of what Cory has said on other occasions.

    You realize you’re basically trolling at this point, right?

    • Arty_Deco says:

      “I never said it was your website, it’s a group who basically shares your
      outlook on Copyright, I found them via the EFF…

      This is an exact copy of my reply, as listed above.  You just accused me of not liking to read responses.  So now, who is trolling exactly? 

      • freshacconci says:

        Obviously I read your response. I quoted you. Beyond that I’m at a loss as to what your point is, other than deflection.

  27. BensFlare says:

    As a working photographer I am sympathetic and agree that The Mail is absolutely in the wrong, my world-weary attitude at this point is that if you put it on the web, be prepared that it may get stolen. Good luck, (sincerely) with a favorable outcome.

  28. Brainspore says:

    Just wait. Daily Mail readers will learn the truth just as soon as the paper rips off the full text of this blog post.

  29. MisterH4x0r says:

    Where’s Anonymous when ya need them? When scumbags like News Corp./Fox News and the Daily Mail are practicing full on douchebaggery? These should be primary targets.

  30. Baldhead says:

    Arty_Deco, I think the trouble here is that you have no conception of how copyright works in the first place, or for that matter copyright infringment. To start it isn’t theft because quite literally theft can only apply to objects. If you steal my car I have no car, if you go home and built a replica then we both have one. Digital copying- any copying- is building a replica. It may not always be legal but it is definitely not theft. The Daily Mail is obligated to get permission to use photos. usually this means paying the photographer. They asked and were refused permission but went ahead and did it anyway assuming that they wouldn’t get sued. This is what the story is about.

  31. CharredBarn says:

    There was attribution, though, right? At least in the text of the article. “The pictures were taken last week by Alice Taylor, who then tweeted the images before her husband, Cory Doctorow, wrote about them at culture blog, Boing Boing.” says the article. Which isn’t to say what they did was right, but the claim that the photo wasn’t attributed doesn’t appear to be accurate.

    • Henry Morgan says:

      I have a feeling the attribution occurred after this article was posted (it seems awfully ‘front-and-center’ for such a puff piece)… one of the biggest strengths of the web is instant ass-coverage… chances are Doctorow has screen-caps of what was posted originally.

    • Little John says:

      Speaking of accuracy, here’s what is showing on the Mail’s article page right this second:

      The pictures were taken last week by Alice Taylor, who then tweeted the images before her husband, Cory Doctrow, wrote about them at culture blog, Boing Boing.

      They show a denim-clad plastic mannequin with disproportionately thin legs promoting the Always Skinny denim range.

      Within days, the photos had been viewed around the world, sparking widespread concern.

      ‘I’m wondering what the internal project name for this was at Gap HQ: “Death-camp chic”? “Ana Pride”? “Famine fashion forward”?’ wrote Mr Doctrow

      Note the repeated misspelling of “Doctorow”, which for some reason does not appear in your comment. Did you “fix” your excerpt yourself? Are you looking at a different version of the page somewhere?

      JFTR: Not only have they bungled even the attempts at attribution, they’ve misused the comma after “culture blog”, too.</pedantry>

      • CharredBarn says:

        I cut and pasted. After I did this, I noticed the misspelling, and assumed I accidentally hit the delete key whilst mucking around, so I fixed that. It didn’t occur to me that the typo was in the original, but I’m not sure what all that has to do with my point. Thanks.

        • Little John says:

          Hi, CharredBarn, thanks for the reply. Comment threads get closed pretty quickly around here lately so I’m glad you made it in.

          I was mostly asking because there was some confusion about what the Mail site was currently showing, what it had shown earlier, and what was attributed at what point in time. I thought it very relevant to everybody’s point if we were all looking at different versions. What I saw on the Mail’s site at the time I commented included attribution to both Alice and Cory, with a credit right on the photo, which was at variance with some of Cory’s complaint.

          As it is right now (2011-08-19 07:35 US PDT), the article has been completely removed from the the Daily Mail site.

  32. Marc Hankins says:

    Daily mail do this kind of theft all the time from photographers everywhere.

    Just one example is this: http://www.bjp-online.com/british-journal-of-photography/news/1931880/daily-mail-sued-copyright-infringement

    Other examples sitting around here: http://www.bjp-online.com/search?from_date=365&query=daily+mail

  33. Cory, this sucks. I checked my old e-mail, and realized the Daily Mail did that to a pic on one of *my* blog posts a few years ago – no attribution, just lifted a pic and put it in an article. However, I e-mailed them to complain, and they did pay me a licensing fee.

  34. Dhiram says:

    This is a common technique by The Register as well. They rip off stories and never give credit. Thanks for bringing this to notice.

  35. Peter Flint says:

    The Daily Mail sure has some previous on this. Ever since the invention of the world wide web, their policy has been “if it’s on the web, we can steal it”. Sister publication The Mail on Sunday stole content from Mil Millington’s ‘Things My Girlfriend and I have Argued About’ website about ten years ago (after asking if they could pay for it and being turned down) – details here: http://thingsmygirlfriendandihavearguedabout.com/mil_support/

  36. tw15 says:

    The image on the DM site currently has (c) wonderlandblog/twitter at the bottom of the image – odd.

  37. Ahkenhaton says:

    Go after the deceitful, sleazy and arrogant Daily Wail, and go after them hard- they set themselves up as a voice of moral authority, but their actual behaviour owes nothing to integrity and decency. They’re sanctimonious, money-grubbing cheats and deserve to be pilloried publicly.

  38. Jens Reuterberg says:

    This entire thread show the problems of a crude legal system and a black/white moral system. You can’t be “kinda” for or against anything but you have to be full blown pro or against. Cory Doctorow can’t be for copying with some prerequisites and against doing it without them – he has to be either against any form of copying, whatever the circumstances or he has to be for just doing whatever the hell you like with what you can grab.

    Most of us can say stuff like “stealing bread to feed your starving kids is better than steeling a mercedes to use it to commit a bank robbery”. Its multifaceted moral statement. In the same way can Cory Doctorow, or anyone else (like me) say that there are huge differences between copying and copying depending on how its done, if its ok that its done and how the copy is then used.

    Its also like a wierd seesaw effect where, by supporting someone you are1) supporting everything that person have ever said.2) being against everyone who may be against him/her.

    For example: Art_Deco is obviously extremely pro bipartisan politics and enjoying the problems it creates. He or she must have been over joyed during the economic crisis in the US a few weeks ago since that is basicly what he/she promotes. Art_Deco doesn’t of course but by linking up arguments with other arguments and opinions with similar opinions we could accuse him/her for it. 

    But that would make us ass-hats. So we don’t.

  39. fraac says:

    That’s your wife, Switcher?

  40. worsted says:

    Best of luck, Alice!

  41. alan says:

    Cory in the UK newspapers and mags have a copyright exemption from the Moral Right of attribution. I am glad that you believe that this is wrong and if you want to campaign to get that changed let me know and I will send you some links. It is not just big IP that benefits from protection.
    It sucks when freetard morons steal your stuff. Nice to see that you are getting with the plan. They asked, Alice set out her terms of use they refused to pay then they used the picture. It is flagrant infringement. They are a newspaper they should know better but they do it all the time. Google IPP copyright or engage a solicitor. Better still get Alice to register the image with the US copyright office because the Daily Mail have offices in the US – then take them for the whole $150,000 + costs and damages.

  42. Richard_Kirk says:

    There seem to be several people here with a similar beef against the Daily Mail. I wonder how many such cases there are altogether. It should be possible to take every picture and every chunk of text in the Daily Mail, and automatically check it against prior images and text on the Web, and get a list of the hits.

    We can then get all the owners together and bring a class action. Karma-bot, Activate!

    • alan says:

      Try Tineye or the new google images search tool.  The Daily Mail are already being hit for multiple infirngements in the US each up to $150K

  43. This photo was used on our local news in PA (http://www.wfmz.com) on Monday this week. I am trying to find a link to the story but unable now. There was no attribution or mention of source.

  44. Actually, thumbnails have already been ruled fair use in even commercial contexts in at least one case that got to federal circuit appeals. You can thank Google’s lawyers for that one. Or maybe Arriba soft’s.

  45. alan says:

    Cory get Alice to register that picture in the US – she has up to 90 days after first publication.  Nail the suckers and cash in.  Get her to buy you a signed copy of this book:

    Free Ride – How the Digital Parasites Are Destroying the Culture Business by Robert Levine

    Come towards the light.

  46. Kiino Villand says:

    Cheers to keeping this matter alive and kicking. There are so many aspects to this issue that continue to confuse wide swaths of the population. Every passing day we’ve got more waves of web/graphic designers, publishers, random business owners & the general blogging public entering the buck-wild internets who either 1.) have no sense at all what the issue is with jacking photographers work or 2.) willingly try to get away with whatever they can. 

    Looking forward to further developments in this story as well as new tech along the lines of TinEye & Karma-bot (great idea Richard_Kirk!).

  47. MDwebguy says:

    Cory, do let us know the final outcome in this matter and whether Alice receives the sort of appropriate compensation she requested.  I know other photographers to whom this same thing has happened and I think many of us would be interested to know whether the law works in behalf of the ‘little guy’ as much as it often seems to work against him.  Thanks!

  48. See, in the one you don’t like, it’s just a thumbnail, of a small part of the original. Whereas in the one you’re OK with, it’s a large reproduction of the entire image.

    Putting the legal issue aside for a moment, the fair play seems obvious to me. We linked a small, low-resolution thumbnail to its source in a blog post that also linked to its source, both clearly intended as an incentive to encourage the reader to go there and read it, and see it, in full.

    The core of your objection, however, appears to be that excerpts and thumbnails are in fact sufficient replacement for the originals to “damage the market” for them, as it were. Now, I’m not a lawyer, but if you read the two extant thumbnail rulings, it’s clear that the courts haven’t been convinced of this.

    The fact that Google Images is a commercial search engine with no critical purpose made its fair use claims rest on “unchartered” transformative grounds — what you refer to as its fundamentally different nature — whereas we have decades of precedent informing blogs’ and aggregators’ use of excerpts as links to the original material. Search engines’ “fundamental differences” and novelty enabled the lawsuits; they had to create a fresh defense from that because they could not avail themselves of established ones.

    But now that precedent’s been set, it only make it clearer that excerpts and thumnails are OK even in the absense of critical commentary, especially when the viewer’s attention is directed to the original. Perhaps you’re assuming that because a search engine is not the same sort of thing as website commentary or aggregator, the courts would not find them to make similar transformative use of the media. But in the legal sense, they do: The Guardian’s purpose in publishing the photo and the story was to illustrate the subject. Google and our use (of low-resolution, tightly cropped thumbnails) is to inform people of the original work and direct people to visit it. As the court wrote, a thumbnail “transforms the image into a pointer directing a user to a source of information.”

    The Google case was guided by an earlier one, Kelly vs. Arriba Soft, which held that thumbnails are fair use in search results. Again, while we’re not a search engine, the court’s analysis was so broad that it even felt compelled to explicitly add that it was not a blanket defense, that in some circumstances thumbails may not be fair use … lest their ruling give the wrong impression.

    The court wrote that in the context of search, it is necessary to copy the entire image rather than merely a portion, which goes significantly beyond the thumbnails we use here now and again. “Even making an exact copy of a work may be transformative so long as the copy serves a different function than the original work”

    But we’re not doing that! We’re just using thumbnails! Thumbnails were also held not to damage the market or the value of the original work, because they “guide” the viewer to work they would not otherwise be familiar with, without reproducing it in whole:

    “They would still
    have to go to Kelly’s site to see the full-sized image. The thumbnails would not be a substitute for the full-sized images
    because the thumbnails lose their clarity when enlarged”

    Blogs like ours (see also: Drudge. haha) also benefit from a well established tradition of fair use in journalistic contexts that search engines cannot; Arriba had to defend their use as a commercial operation with no credible critical purpose whatsoever. Google even used the thumbnails in marketing materials for consumer products, leading “users to sites that directly benefit Google’s bottom line.”

    The court hinted at but didn’t define technical elements that matter: sufficiently low quality and linking to the originals.

    We do not suggest that the inferior display quality of a reproduction
    is in any way dispositive or will always assist an alleged infringer in demonstrating fair use. In this case, however, it is extremely unlikely that users would download thumbnails for display purposes, as the quality full-size versions are easily accessible from Kelly’s web sites.

    In the two rulings on thumbnails, the court seeems to place the greatest weight in the issue of whether it harms the market for the original. Have we harmed the artist? If he or she believes so, we’ll do what we can to accomodate his wishes. Links, excerpts and thumbnails are as of today legal, and many people find them to also be a positive generally, so long as you don’t reproduce too much of the original — which we don’t.

    Anyone who complains to us about how we’ve reproduced their work will find us very reasonable. And yet the only time it’s happened in the years I’ve been here was when someone submitted another person’s work without indicating that it was not their own, and we published it at full size.

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