Thumbnails no fair use

12 May 2004

Sibylle Gierschmann

The Hamburg County Court finds “thumbnails” provided by a search engine to infringe German copyright law.

(LG Hamburg of September 5, 2003 – 308 O 449/03 – not yet final; BGH of July 17, 2003 – I ZR 259/00 – “Paperboy”)

The County Court (Landgericht) of Hamburg has issued a preliminary injunction against a provider of a search engine offering so-called “thumbnails” of photographic and graphic images as search results. “Thumbnails” are smaller, lower-resolution copies of original images. The decision was based on infringement of (1) the right to make available and (2) the right to duplicate. The decision is not yet final, however, it is very unlikely that any challenge would be upheld.

This decision is particularly interesting, in two respects: firstly because it follows a recent landmark Federal High Court (Bundesgerichtshof- BGH) decision (“Paperboy”) where the court found that hyperlinks to newspaper articles do not infringe the rights of the copyright owner even if the hyperlinks contain short descriptions of the articles and are used to offer a “personal newspaper”; secondly, the decision is in contradiction to a recent United States Court of Appeal order and opinion, Kelly v. Arriba Soft Corp., No. 00-55521 (9th Cir. July 7, 2003), where the use of “thumbnails” was regarded as “fair use”.

In “Paperboy” the Federal High Court decided that hyperlinks merely facilitate access to works that the author had already made publicly available. Hyperlinks neither duplicate the work nor do they in themselves make the work available. Furthermore, the Federal High Court denied infringement of the rights of the database owner, since the use of the database through hyperlinks did not replace the database; rather it animated the use of the database.

The County Court of Hamburg distinguishes its case from “Paperboy” since the hyperlink in “Paperboy” did not contain any copyrighted material (under German law mere textual fragments are not regarded as qualifying for copyright protection). Whereas, the County Court of Hamburg had to decide, if the defendant did not solely provide hyperlinks, whether the full image was reproduced. The Court found that the defendant could have merely provided a textual link stating “See photo here”.

Concerning Kelly v. Arriba Soft Corp. the US Court of Appeal found the use of “thumbnails” as a means to show search results to be “fair use” and therefore permissible. In short, the “fair use” doctrine allowed the judge to avoid rigid application of the copyright law when it would stifle the very creativity the law is designed to foster. To this end, the judges in Kelly v. Arriba Soft Corp. ruled that the use of a photographic image as a “thumbnail” was neither highly exploitive nor did it harm the value of these images. The use by Arriba of the “thumbnails” served to improve access to information and did not substitute the full-size images that could only be obtained from Kelly. In addition the court acknowledged that it was necessary for Arriba to copy the entire image to allow users to recognise the image and decide whether to pursue more information about the image or the originating website.

A comparison of these two decisions discloses the difference in concepts between a case law oriented jurisprudence as opposed to a statute law oriented one such as exists in Germany. Under German law, the rights of the copyright owner are limited only by certain “public interest” exemptions provided for by law. According to the Hamburg court, the use of “thumbnails” did not fall under any of these exemptions. In particular, it could not be regarded as a transformation of the original picture or a mere “citation” of the picture. Since these exemptions are to be interpreted narrowly, the court did not consider some of the arguments that were relevant under the Kelly v. Arriba decision. Specifically, the Hamburg court did not take into account the purpose of the ”thumbnails”, i.e. to provide adequate access to information on the Internet. Rather, the court refers to the legislator as being in charge of providing for further exemptions where necessary.

The Hamburg court decision is not only of relevance to German companies as the court ruled that German Copyright law would be applicable as soon as the infringing content can be accessed from Germany. Accordingly, any web site provider can be subject to a German court decision under German law. Notwithstanding this, the court left open the issue of whether this view would change if the “thumbnail” provider had a disclaimer on its website making reservations with regard to retrievals from Germany. This question was left unanswered since the website in question was in German and therefore undoubtedly directed towards the German market.


Important - The information in this article is provided subject to the disclaimer. The law may have changed since first publication and the reader is cautioned accordingly.