A Picture Worth a Thousand Lawsuits

Author:Mr Lawrence Robins
Profession:Finnegan, Henderson, Farabow, Garrett & Dunner, LLP

Originally published in Managing IP, March 2002

A recent judgment in the US found that unlicensed linking and framing constitutes copyright infringement. All website operators should take note, explains Lawrence R Robins

There is a vast body of internet IP law in the US. Much legislation has been passed and numerous judgments made to clarify the uncertainty generated by the new technology. Yet no legislative or judicial authority has addressed the legality of framing or inline linking copyrighted works on others' websites. That is, not until now.

A recent decision by the US Court of Appeals for the Ninth Circuit leads to the inescapable conclusion that unlicensed inline linking and framing of copyright images violates the public display right of copyright owners and, therefore, in the absence of a legitimate legal defence, constitutes copyright infringement.

On February 6 2002, the Ninth Circuit affirmed in part and reversed in part the ruling of the US District Court for the Central District of California in the case of Kelly v Arriba Soft Corp. In that case, the district court found that the copying of images for use in an image search engine was permissible under the fair-use exceptions in the Copyright Act of 1976. The Ninth Circuit agreed with the district court in finding that the use of low-resolution, thumbnail reproductions of copyrighted images in the results pages of an image search engine is a fair use under the Act. But the display of full-size, full-resolution images of the copyrighted works in frames or inline links on the defendant's website was not protected under the fair-use exception and infringed the plaintiff's copyrights.

A bundle of rights

Copyright is actually a bundle of rights comprising the right to reproduce, distribute, perform, publicly display and create derivative works from the copyrighted work. Infringement of any one of these rights constitutes copyright infringement. Understanding that reproduction or copying is not an essential element of a copyright infringement claim is central to understanding the court's ruling. Also essential to understanding the ruling are the court's definitions of 'inline linking' and 'framing' (see box).

Inline linking and framing defined

"The process of importing an image from another website is called inline linking. The image imported from another website is displayed as though it is part of the current web page, surrounded by the current web pages' text and...

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