FAQ: Questions and Answers

[back to notice text] Question: What is inline linking and framing? Answer: Inline linking allows an internet service to import an image from another website and then include it on the server's own website. The user is able to click on an image and then open a new window to display the full size image, within the server's website. [back to notice text] Question: Can I post a copyrighted image on my website? Answer: Maybe. In order to determine whether you can post a copyrighted image on your website, a court would apply the four factor fair use analysis. First, it is important to determine the purpose and character of the use. If the use is commercial in nature, rather than for nonprofit education purposes, it less likely to be considered a fair use. To determine if it is commercial, a court would consider whether the use was exploitative and for direct profit, or if instead any commercial character was incidental. Also, if the use is transformative and for a different purpose than the original work, it is more likely the first factor will weigh in favor of finding a fair use. For example, in Kelly v. Arriba Soft Corporation, the court found that posting "thumbnail" images on a website was a fair use because such images served a different purpose than the original images. Second, the court would consider the nature of the copyrighted work. The reproduction of a predominantly factual work is more likely to be considred a fair use than the reproduction of a highly creative one. Third, it is important to consider the amount and substantiality of the portion of the copyrighted image used. This inquiry looks at not only the quantity, but also on the expressive value, of the portion used. If a large amount of the original image is copied, or if the portion copied is substantially significant to the work as a whole, it is less likely the court will find such copying to be a fair use. Finally, the most important factor in this inquiry is the effect of the use on the potential market for the copyright owner's work. If posting the image on the website leads to a reduction in sales of the copyrighted work or discourages people from accessing the copyright owner's website, a court is more likely to find that the use is not fair and has an adverse impact on the copyright owner's market. These four factors will be evaluated by a court in a factual inquiry to determine whether the posting of the image would constitute a fair use. [back to notice text] Question: Does the fair use doctrine permit an operator of a visual search engine -- or other Internet web site -- to "import" or provide an inline link to a copyrighted, full size image, where such importing/linking does not involve making a copy of the image? Answer: As of now, there is no official decision with regard to this issue. The Ninth Circuit Court of Appeals withdrew its previous decision in which it held that a search engine may not display the full size images without the copyright owner's permission because such a use infringed on the owner's exclusive right to publicly display his or her works. In its recently-issued opinion (July 2003), the court determined that this issue did not need to be addressed, and the issue was remanded back to the lower court.

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