Today a court in the Central District of California issued an Order enjoining Google from displaying “thumbnail” replicas of the plaintiff’s photographs when it displays results from its “image search” function. This ruling appears upon cursory inspection to be in conflict with the Ninth Circuit’s holding in Kelly v. Arriba Soft Corp.
Plaintiff Kelly was a professional photographer who tried unsuccessfully to “protect” his images of the American West from thumbnailization by Arriba Soft. The plaintiff in the Google case is “Perfect 10″ which operates a subscription website that “feature[s] high-quality, nude photographs of ‘natural’ models.” Guess which gender the “models” are.
The judge distinguished the cases in part by concluding that Google’s use of the Perfect 10 thumbnails is “more commercial” than Arriba Soft’s was, and is “consumptive” because people can download the Google thumbnails onto cell phones, which disrupts part of the Perfect 10 business model (see Order linked above, at pages 29 and 30). Apparently pictures of naked women seemed more like valuable commercial commodities to the judge than photographs of the American West did, and therefore more deserving of copyright “protection.” He (you already guessed that the judge is a man, right?) noted early in the Order that Perfect 10 “has invested $36 million to develop its brand” including “$12 million spent to photograph over 800 models and create 2,700 high quality images that have appeared in its magazine, along with an additional approximately 3,300 images that have appeared on perfect10.com.” (Order at 3).
Tracking the case through the media requires me to read articles with titles like: “Girlie Photos Land Google in Legal Limbo.” Oh joy.