Paris Court applies US fair use law to Google Image Search

18 July 2008

Jeanne Méhaud

In this case, the French Civil Court held that US law will apply in a copyright infringement case, even though the party suing was a French organisation. Consequently, the French court had to consider the concept of “fair use” under US law. It held that Google's Image search did not infringe according to the US fair use criteria.

Google Inc. and Google France were sued before a French Civil Court by SAIF (“Société des Auteurs des Arts Visuels”), a French royalty collection organisation for artists. SAIF argued that Google’s image search engine had infringed its intellectual property rights by offering Web users an opportunity to see thousands of works belonging to SAIF’s members without its authorisation.

In its judgment on 20 May 2008, the Paris Civil Court of First Instance agreed with the numerous arguments presented by Google.

The Court ruled that Google France had been improperly sued by SAIF. The infringements were related to the search engine business carried out by Google Inc., including searches from the French website ( by French or international web users. It also covered acts taking place on the French territory.

The Court also ruled that SAIF’s claim on behalf of its members was inadmissible, due to the fact that these members were not identified - only ten members were identified. Additionally, SAIF had failed to describe the alleged infringement. It had also failed to adequately assess the amount of damages claimed, on a member by member basis, for the ten members identified in SAIF’s writ. However, SAIF’s claim on its own behalf, which was based on the defence of the collective interests of its members, was held to be admissible by the Court. Bringing such a claim was also permitted under SAIF's articles of association.

With regards to applicable law, Google relied upon the Berne Convention, under which the applicable law is that of the country in which the protection is sought. It also relied on decisions of the French Supreme Court, which stated that the applicable law is not necessarily the law of the Court before which the case is brought, but the law of the country where the events that caused the damage arose. The Paris Court followed this judicial interpretation. It considered that the alleged acts of infringement were carried out by (a) collecting the images and referencing them in the Google Image search engine, and (b) by the access to the server. According to the Court, the search engine development business is obviously Google Inc.’s core business. Consequently, the Court considered that the applicable law should be determined by Google Inc’s registered office. This was the place where decisions were taken and where the search engine business is implemented on Google Inc’s premises.

US law (i.e. the U.S. Copyright Act) therefore applied to the case of infringement. Under Section 107 of the U.S. Copyright Act, a use of a work may be regarded as “fair”, depending on the applicability of the four following criteria:

1. Purpose and character of the use- the Court ruled that the Google search engine was reproducing protected works for cultural purposes and that the Google Image search engine activity was a non-profitable one, as it does not directly generate earnings.

2. The nature of the copyrighted work - this was not debated by the parties, therefore the court did not rule on this.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole - the Court considered that reducing the images displayed as thumbnails was not an alteration of the works, but a mere adaptation aimed to inform the web users. Moreover, the caching operations consisting in an automatic temporary storage of the images was ruled to be the result of an automatic activity of Google’s server.

4. Effect of the use upon the potential market for, or value of the copyrighted work - the Court judged that the referencing of images found on the internet by the Google Image search engine and displayed as thumbnails did not substitute the works and did not prevent authors from exploiting their works. The Court also noted that SAIF failed to demonstrate that the authors had noticed a decrease in the exploitation of the works . Also, SAIF had not shown that its own business had decreased in this context (notably because it did not have implemented its own stock photography of the works contained in its directory).

As a consequence, the Court ruled that these four “fair use” criteria were all met by Google, which was thus not found liable for infringement.

It is worth noting that one month ago, in a summary order dated 14 April 2008, the Paris Civil Court of First Instance also decided to apply US law in a case raising data protection issues.