Google Loses Significant Copyright Battle - The Fair Use Issue, continued
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The second issue concerns the nature of the copyrighted work. We’re talking nude photos of “beautiful natural women,” according to Perfect 10. Photographs can certainly be copyrighted, but Google tried to argue that Perfect 10’s photos weren’t creative. Works that are creative, according to legal precedent, are closer to the core of intended copyright protection than more fact-based works. Aesthetic, creative photographs thus fit right within these intentions. But Google insisted that P10 “emphasizes the objects of the photographs (nude women) and [P10] assumes that persons seeking Perfect 10’s photos are searching for the models and for sexual gratification.” Therefore, according to Google, the photos are of a more “factual” rather than creative nature.
Judge Matz rejected this argument, and rightly so. Good nude photography demands a greater level of skill than you might think. Many considerations go into a quality picture, including lighting, posing the model, general composition of the picture, photo angle, and so on. The fact that these are nudes does not mean that the photos are of a more “factual” rather than “creative” nature: is the Venus de Milo more factual than creative because it is scantily clad?
The third issue to consider is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Google displayed thumbnails of the photos. A thumbnail is a lower-resolution version of the full photo. P10 argued that Google could have used text to help searchers find images rather than the thumbnails, but the court rejected this argument.
It’s a bit of a sticky issue. Normally, wholesale copying of a work would tend to militate against a finding of fair use. However, another legal precedent states that, if the secondary user (that would be Google in this case) copies only as much of a copyrighted work as is necessary for the intended use, then it won’t weigh against him or her. Judge Matz ruled that the thumbnails constituted an amount of copying required for Google’s intended use, which is “quickly and accurately conveying the content of indexed full-sized images.”
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