SIVACRACY.NET: Feminism and Copyright Law

Today (as Siva noted below) a court in the Central District of California enjoined Google from displaying "thumbnail" replicas of the plaintiff's photographs when it displays results from its "image search" function. This ruling appears upon cursory inspection to be in conflict with the Ninth Circuit's holding in Kelly v. Arriba Soft Corp.

Plaintiff Kelly was a professional photographer who tried unsuccessfully to "protect" his images of the American West from thumbnailization by Arriba Soft. The plaintiff in the Google case is "Perfect 10" which operates a subscription website that "feature[s] high-quality, nude photographs of 'natural' models." Guess which gender the "models" are.

The judge distinguished the cases in part by concluding that Google's use of the Perfect 10 thumbnails is "more commercial" than Arriba Soft's was, and is "consumptive" because people can download the Google thumbnails onto cell phones, which disrupts part of the Perfect 10 business model (see Order linked above, at pages 29 and 30). Apparently pictures of naked women seemed more like valuable commercial commodities to the judge than photographs of the American West did, and therefore more deserving of copyright "protection." He (you already guessed that the judge is a man, right?) noted early in the Order that Perfect 10 "has invested $36 million to develop its brand" including "$12 million spent to photograph over 800 models and create 2,700 high quality images that have appeared in its magazine, along with an additional approximately 3,300 images that have appeared on perfect10.com." (Order at 3).

Tracking the case through the media requires me to read articles with titles like: "Girlie Photos Land Google in Legal Limbo." Oh joy.

Cross-posted at Feminist Law Professors.

Comments

Huh? What do you mean "Apparently pictures of naked women seemed more like valuable commercial commodities than photographs of the American West did,"

The only thing the judge said directly comparing them was: "photographs of nude women can, like photographs of the American West, vary greatly"

He distinguished _Kelly_ on commercial use by others, not that naked women are somehow more scenic. There's nothing to indicate that the result would be different if _Kelly_ had been the plaintiff in this particular set of facts.

Anyway, I have a post specifically about the amusing aspects here:
Perfect10 vs Google, and copyright aspects of nude women pictures
http://sethf.com/infothought/blog/archives/000977.html

Posted by: Seth Finkelstein | February 24, 2006 10:20 AM

I would think the real issue is not whether Kelly v. Arriba Soft Corp. applies here because of the gender of those portrayed in the photographs, but a question of provenance. (And empirically, in any case, the market for female featured erotica is larger.) The Google thumbnails in question are obtained from infringements found on third-party sites. If this was simply a matter of Google accidentally crawling a "member only" site, they could easily stop. However, since that is not the case, does that mean Google has to know the provenance (the original owner and the associated license) of every single image on the Web? Now, that's scary.

Posted by: Joseph Reagle | February 24, 2006 03:14 PM

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