Visual search engine succeeds in fair use defence

Ditto.com (formerly Arriba Vista) has successfully defended a copyright infringement claim by US photographer Leslie A. Kelly.  A California court found that ditto.com’s indexed thumbnail search system amounted to fair use.

Ditto.com indexes millions of images on the Internet, relying on automated web-crawling technology as well as submissions by site owners.  If you type in the word “Madonna”, for example, it produces 626 thumbnail Madonna images with links to the sites from which they have been sourced.   (Some of these 626 images are of the performer Madonna, others are more traditional religious icons.)

Ditto.com warns on its site that images located by its searches must not be used without permission.  It will, on request, remove a site from its search index along with all thumbnails.

Kelly had two web sites showing images of Californian gold rush country and promoting his book on the subject.  Thumbnail images from Kelly’s websites were indexed by ditto.com without his permission.

Fair use defences in the USA involve four factors: (1) the nature and purpose of the use (including whether the use is commercial); (2) the nature of the copyright work; (3) the proportion of the work used and its “substantiality” and (4) the effect of the use on the market for the work.

The court found that ditto.com’s use had been fair, bearing in mind both the general importance of search engines to the Internet and the fact that the thumbnails were low resolution.  The court also took into account ditto.com’s potential for combating infringement: copyright owners can use it to track down infringing uses of their images on the Internet.

The US fair use defence is a general “fair practice” rule.  There is no comparable defence in the UK.  There is a specific defence of fair dealing for the purpose of “research or private study”, but these terms were held in an Australian case to have their ordinary dictionary meaning and it is questionable whether ditto.com is a “research” facility.  Visual search engines of this type could therefore come up against greater legal barriers outside the USA.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.