Legal Rulings On Image Search & Meta Tags
In the right circumstances, image search engines don't violate copyright and using another company's trademarks in meta tags isn't infringement, two separate court cases have found.
In the case involving image search engines, the US Ninth Circuit Court of Appeals ruled this month that displaying thumbnail images of pictures found across the web was fair use. However, it also ruled that it wasn't fair use to link directly to images or to show them on their own, within a frame. Instead, links need to be to the page containing the image, rather than the image itself.
The ruling seems to have come out as a draw in the case between photographer Les Kelly and image search engine Ditto, formerly called Arriba Soft. Kelly won the appeal, but to collect damages, he'll have to show in a lower District Court that full-sized images from his site were accessed through direct links or framing. The owners of Ditto, Sorceron, claim there's no evidence of this.
"We are pleased with the court's decision validating 'fair use' of thumbnail images and believe there will be a positive outcome on remand," said Jason E. Hardiman, Sorceron's general counsel, in a statement. "There has been no evidence that the full-size images were accessed via the Arriba web site, in addition to the fact that inline linking and framing have been abandoned by Arriba. These factors will be taken into account by the court in its future analysis."
In response to this, Kelly said, "Sorceron.com has claimed that there was no access to the images. It will be interesting to see how they can support that claim in court, and its relevance, given the facts as we know them."
Whatever happens regarding damages in the case, there's no dispute that the enlightened ruling by the court helps ensure that image search engines can continue helping web searchers while the rights of artists also remain protected. Even Kelly is happy with the compromise.
"I am quite pleased to see that copyright owners worldwide now have case law to enhance their protection from rogue start up image search engines," Kelly said. "I am also pleased to see the decision that image search engines can use thumbnail images under 'fair use' so long as they link directly to the web page to show the image in its original context as it was intended by the website owner! This puts them on the same par as text engines and will enhance their usefulness for all concerned."
At Ditto, image searching complies with the new rules handed down by the court. When searching in default "compact mode," thumbnail images are shown, and clicking on them links back to the pages containing the images, rather than to the images themselves. In "default mode," the file name of the image is shown, but clicking on the file name also leads back to the page containing the image, not the actual image.
The other popular image search engines run by Google, AltaVista and FAST don't comply with the court's ruling, in various ways. Of course, the ruling technically only applies to Ditto. Nevertheless, these other search engines could be sued, and the appellate court decision would carry great weight in finding against them. Given this, it seems likely they'll consider changes. Certainly Google and FAST said they were reviewing the decision, and AltaVista suggested it might be considering changes.
At Google, full-size images are displayed in a top frame when someone clicks on a thumbnail, while the page containing the image is shown in a bottom frame. The top frame display seems to violate the court's guidelines, suggesting it may have to go. Google's looking into the issue.
"We're certainly aware of the decision and we're currently analyzing it. We'll modify our implementation if we determine it's required by the court's opinion," said Google spokesperson Cindy McCaffrey.
At AltaVista, clicking on a thumbnail brings up a direct link to the image. This also seems a violation. AltaVista said they plan to change this.
"We do provide a direct link to the image itself, outside its original context. Therefore, we are going to remove this direct link. We will most likely continue to use frames," said spokesperson Krista Thomas. "We will continue to frame the referring page, with the top frame still containing the thumbnail. The direct links to the object will be removed. Additionally, we will probably provide a help link that will describe some of the reasons why a user may not be able to immediately locate the object they're searching for."
FAST's AllTheWeb also provides direct links to images, if you select a thumbnail photo. Choosing a thumbnail also displays the image in a much larger format, though not full-sized, so it's a gray area as to whether the courts might rule that a violation. As with the other search engines, FAST is reviewing the situation.
"Our legal team is analyzing the impact that this will have on the FAST Image Search Service," said Stephen Baker, FAST's director of business development and marketing.
In another ruling this month by the US Ninth Circuit Court of Appeals, former Playboy Playmate Terri Welles was found not to have violated Playboy's trademark rights by using the terms "playboy" and "playmate" within the meta tags on her web site.
"A large portion of Welles' website discusses her association with Playboy over the years. Thus, the trademarked terms accurately describe the contents of Welles' website, in addition to describing Welles. Forcing Welles and others to use absurd turns of phrase in their metatags, such as those necessary to identify Welles, would be particularly damaging in the internet search context. Searchers would have a much more difficult time locating relevant websites if they could do so only by correctly guessing the long phrases necessary to substitute for trademarks," the court wrote, in supporting Welles' use of the terms.
A key portion of the ruling also notes that Welles only used the terms in her meta tags "as reasonably necessary." This is important, because it suggests that excessive repetition -- a search engine spamming tactic -- could work against someone in future cases involving search engines and trademarks.
"The metatags use only so much of the marks as reasonably necessary and nothing is done in conjunction with them to suggest sponsorship or endorsement by the trademark holder. We note that our decision might differ if the metatags listed the trademarked term so repeatedly that Welles' site would regularly appear above PEI's in searches for one of the trademarked terms," the court wrote.
This is both fair and chilling, at the same time. The chilling part is that we have no published or official rules about what is excessive repetition in meta tags, not from the search engines nor enshrined in law. Indeed, we don't have this definition for repetition for anywhere on a web page, such as in body copy.
The fair part is that there is some ability to assess whether repetition is reasonable or not, at least in the keywords tag. For example, a meta keywords tag like this probably would be seen as having reasonable use for someone selling Microsoft Word, along with other Microsoft products:
"microsoft word, excel, powerpoint, access, discount software"
Here's more repetition, but it would probably still seem reasonable, given that the proximity of "micrsoft" next to the actual product names might help enhance the page being found for them:
"microsoft word, microsoft excel, microsoft powerpoint, microsoft access, discount software"
Here's what I think would commonly be considered unreasonable:
"microsoft word, microsoft excel, microsoft powerpoint, microsoft access, discount software, microsoft word, microsoft excel, microsoft powerpoint, microsoft access, discount software"
In that case, why are all the terms being repeated more than once? Probably because the person believes that by doing so, they'll rank more highly. That act suddenly changes the situation from trying to help ensure that they can be found fairly to perhaps trying to "beat" the trademark holder in being ranked. Perhaps the intention really isn't to beat the trademark holder, but it could be read that way and argued that way to a court.
Then there's this situation
"microsoft word, microsoft word, microsoft word, microsoft excel, microsoft excel, microsoft excel, microsoft powerpoint, microsoft powerpoint, microsoft powerpoint"
The repetition is even more noticeable and harder to defend.
Finally, last newsletter I'd mentioned I'd be following up with the search engines named in the Body Solutions case over paid listings. I haven't heard back from Kanoodle, and AltaVista said it couldn't comment on the case. Overture said it is still reviewing the case but expect to be able to comment in the near future.
FindWhat was also named, and they responded:
"We fully respect the intellectual property rights of others, but, as you can imagine, we really can't comment on ongoing litigation, or our legal position on the issues raised," said Phillip Thune, FindWhat's chief operating and financial officer. "The one thing we have noted to various members of the media who have called us is that Mark Nutritionals never tried to contact us before filing a lawsuit against us, and as a result we question their motives. They have certainly generated a lot of publicity for themselves."
Bigger Not Better With Copyrighted Web Photos
The Recorder, Feb. 7, 2002
Summary of issues in the image case.
Image Search Faces Renewed Legal Challenge
SearchEngineWatch.com, Aug. 22, 2001
Background on the image search engine case, along with links to the image search engines mentioned.
Ruling On Playboy Appeal In Welles Case
US Court of Appeals, For the Ninth Circuit, Feb. 1, 2002
PDF file above has the court opinion rejecting Playboy's appeal in the Terri Welles case.
Former Playmate Wins Next Round In Playboy Web Suit
Newsbytes, Feb. 4, 2002
More quotes out of the Terri Welles ruling, and it touches on a Playboy victory in the case involving watermark images on the Terri Welles site.
Playmate Checkmates Hef's Mag
Wired News, Feb. 7, 2002
In case you read this article, here are some important corrections. "At least right now, Welles is playing it straight," the article writes -- suggesting that Welles was doing something wrong. That's odd to say, considering Welles keeps getting upheld in court cases. "At the bottom of every page is a disclaimer -- though it appeared only after the suit," the article continues. Actually, to my recollection, that disclaimer was present before the case was filed. "Before Playboy sued her, she repeated the term "Playboy" in hopes of higher rankings," the article says. Again, my recollection is that this was not the situation at all. Indeed, the appellate court specifically noted that she had repeated the terms unreasonably.
Meta Tag Lawsuits
A rundown on major cases involving meta tags.
More About Meta Tag Lawsuits
Is it safe to use trademarked terms in your meta tags? This article for Search Engine Watch members examines the pros and cons to help you avoid trouble. A new section, "Avoiding Problems," has further specific guidelines.
Lawsuit Over Paid Placements To Define Search Engines
The Search Engine Report, Feb. 4, 2002
Must something that calls itself a "search engine" provide trademark holders with some degree of visibility, regardless of payment, if they also carry ads for searches involving those trademarks? That will be determined in a $440 million legal action filed by the maker of the Body Solutions weight-loss program against AltaVista, FindWhat, Kanoodle and Overture.
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