Google to appeal thumbnail copyright defeats in Germany

Out-Law News | 14 Oct 2008 | 2:46 pm | 1 min. read

Google has lost two German court cases over copyright in images displayed as thumbnails in search results. German courts ruled in both cases that Google's display of miniature versions of pictures without permission infringed copyright in the originals.

Advert: The Sourcing Summit, 18 & 19 November 2008, Queen Elizabeth II Conference Centre, LondonThe search giant will lodge one appeal covering both cases, it told OUT-LAW.COM.

Photographer Michael Bernhard took the case against Google when thumbnail versions of his photographs appeared in the Google Image Search service.

Artist Thomas Horn also won his case over the appearance in a Google search of comic images in which he owns the copyright.

The court ruled that the fact that the pictures displayed were smaller than the original images was irrelevant, according to news agency Bloomberg.

"It doesn't matter that thumbnails are much smaller than original pictures and are displayed in a lower resolution," the ruling said in Bernhard's case, according to the agency. "By using photos in thumbnails, no new work is created."

Google said that it will deal with both rulings through one appeal. "Google is disappointed and intends to appeal the ruling to the German Supreme Court because we believe that services like Google Image Search are entirely legal," a company statement said.

"Today’s decision is very bad for internet users in Germany, it is a major step backwards for German ebusiness in general, and it is bad for the thousands of websites who receive valuable traffic through Image Search and similar services," it said.

The use of small versions of images in Google's image search facility has proved controversial before. The US Court of Appeals ruled last year that Google's creation and display of thumbnail versions of copyrighted images was not a copyright violation.

A lower court had said that Google infringed the copyright in images owned by nude pictures publisher Perfect 10. The Court of Appeals agreed that copies of the images were made and distributed by Google but said that that activity qualified for protection as 'fair use' of the material.

Under US copyright law, a 'transformative use' of a work an be a fair use, i.e. where a work is put to a use completely different to that of the original.

The Court said that in the case of Google's search technology the use was sufficiently different to qualify. "A search engine provides social benefit by incorporating an original work into a new work, namely, an electronic reference tool," said the ruling.