What about using images from other Web sites on my own site?

Thursday, November 21, 2002

It’s generally not a good idea to take someone else’s graphic, logo, photo or other image and post it online without permission. The principle of fair use provides some leeway, for example in posting images that have themselves become the crux of a news story — for instance, a Newsweek cover some years ago showing O.J. Simpson’s face tones altered to make him appear darker. The controversy that ensued had the effect of placing that image in the public arena.

Some Web sites seeking to direct users to images elsewhere simply link to those pages, rather than pirating the images.

In Kelly v. Arriba Software Corp., a 2002 case, the 9th U.S. Circuit Court of Appeals held that when copyrighted images are used on a Web site, a prima facie case of copyright infringement is made. However, the infringement charge can be rebutted if the way in which the images are used complies with the doctrine of fair use. In Kelly v. Arriba, an operator of a search engine used “thumbnail” pictures of the plaintiff's copyrighted images in search-result displays. The owner of the images brought suit for copyright infringement, and although the search-engine site displayed the thumbnails for commercial purposes, its use of them was so different from the function of the original images that the court said the thumbnails “did not supplant the need for the originals.” Therefore, the thumbnails were a fair use. However, the court also found that the additional inclusion of the copyright owner's full-sized images on the search site “infringed [the copyright owner's] right to publicly display his works,” and therefore was not a fair use.