Image Search and Meta Tags: Copyright Issues?

Under the right circumstances, image search engines don’t violate copyright laws, and using another company’s trademarks in meta tags isn’t infringement, according to two separate court rulings.

In the case involving image search engines, the U.S. Ninth Circuit Court of Appeals ruled that displaying thumbnail images of pictures found across the Web was fair use. However, it also ruled it’s not fair use to link directly to images or to show them on their own, within a frame. Instead, links must be to the page containing the image, rather than the image itself.

The ruling seems to have come out as a draw in the case between photographer Les Kelly and image search engine Ditto (formerly Arriba Soft). Kelly won the appeal, but to collect damages he’ll have to prove to a lower District Court that full-sized images from his site were accessed through direct links or framing. Sorceron, Ditto’s owner, claims there’s no evidence of this.

“We are pleased with the court’s decision validating ‘fair use’ of thumbnail images and believe there will be a positive outcome on remand,” said Jason E. Hardiman, Sorceron’s general counsel, in a statement. “There has been no evidence that the full-size images were accessed via the Arriba Web site, in addition to the fact that inline linking and framing have been abandoned by Arriba. These factors will be taken into account by the court in its future analysis.”

In response, Kelly said, “Sorceron.com has claimed that there was no access to the images. It will be interesting to see how they can support that claim in court, and its relevance, given the facts as we know them.”

Whatever happens regarding damages in the case, there’s no dispute that the enlightened ruling by the court helps ensure image search engines can continue helping Web searchers while the rights of artists remain protected. Even Kelly is happy with the compromise.

“I am quite pleased to see that copyright owners worldwide now have case law to enhance their protection from rogue startup image search engines,” Kelly said. “I am also pleased to see the decision that image search engines can use thumbnail images under ‘fair use’ so long as they link directly to the Web page to show the image in its original context as it was intended by the Web site owner! This puts them on the same par as text engines and will enhance their usefulness for all concerned.”

At Ditto, image searching complies with the new rules handed down by the court. The other popular image search engines run by Google, AltaVista, and FAST don’t comply with the court’s ruling, in various ways.

Of course, the ruling technically applies only to Ditto. But other search engines could be sued, and the appellate court decision would carry great weight in finding against them. Given this, it seems likely they’ll consider changes. Google and FAST said they were reviewing the decision. AltaVista went further and said it would implement change to comply.

In another ruling by the U.S. Ninth Circuit Court of Appeals, former Playboy Playmate Terri Welles was found not to have violated Playboy’s trademark rights by using the terms “playboy” and “playmate” within her Web site’s meta tags.

“A large portion of Welles’ Web site discusses her association with Playboy over the years. Thus, the trademarked terms accurately describe the contents of Welles’ Web site, in addition to describing Welles. Forcing Welles and others to use absurd turns of phrase in their metatags, such as those necessary to identify Welles, would be particularly damaging in the Internet search context. Searchers would have a much more difficult time locating relevant Web sites if they could do so only by correctly guessing the long phrases necessary to substitute for trademarks,” the court wrote, in supporting Welles’ use of the terms.

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