Remember photographer Les Kelly’s battle with the search engines to stop displaying photographers' photos on the web without permission from the photographers? Well, he lost that battle. A ruling February 6^th 2002 by the Ninth Circuit Court of Appeals says that, yes, search engines CAN display thumbnails of images found on the web. This applies to any and all search engines who are providing "a transformative service with relevant information." (In other words – don’t try this at home…)

            But can a search engine display large-size images? No, it cannot, the ruling says. So Kelly did win that part of the battle, against Ditto.com, who in the early days had displayed large-sized images of Kelly's. We would all agree no one should be allowed to do that. Kelly will attempt to collect the usual copyright infringement damages for Ditto.com’s "exploitation" of Kelly’s images. The court said each party would have to pay its own court fees.

            We have written on this search engine dilemma in several back issues. For example, the following appeared in PhotoStockNotes, February 2000:

            "There are two sides to this story. Kelly has a point when he says photographers could lose control of the whereabouts of their photos on the Internet if DITTO.COM and the others prevail. However, in the early birth pangs of the World Wide Web, here at PhotoSource International we have not seen a rash of thievery when it comes to published photos on the Internet. Yes, there have been a rare few publicized cases, but they usually turn out to be innocent infringers, school newspapers, or plain ol' one-time mistakes.

            "Opponents of 'fair use' are somewhat akin to those who argued for isolationism in the first half of the 20th century in this country. We can protect our products with rules and regulations, but history has shown that those countries or companies that take this closed attitude most often lose out in competition to open trade policies.

            If as stock photographers we are going to be successful on the Internet and in E-Commerce, we should be prepared to share our images on the Web and place trust in viewers that the Web exhibits of our pictures will serve as an invitation to prospective buyers to purchase, rather than to steal. Risk and trust pervade our lives, if we're truly living. –RE

            For detailed background information on this case: http://www.photosource.com/photoaim/kelly.html http://www.computeruser.com/news/02/02/09/news3.html

http://pub.bna.com/ptcj/99-560.htm For a press release from the Kelly office: http://www.netcopyrightlaw.com