It appears that a coalition of photogaphers and illustrators led by the American Society of Media Photographers is about to file suit against Google for copyright infringement based on the Google Books project. You may remember the dispute a few months back about whether these groups would be allowed to intervene in the current lawsuit. They were upset at being excluded from the settlement, which currently applies only to textual materials. Given that the parties responded to this objection by saying that the visual artists wouldn’t be hurt by the settlement since they wouldn’t be bound by it, they were all but inviting the artists to file their own lawsuit. Looks like that bluff has been called.
The central fact distinguishing this lawsuit from the Authors Guild suit is likely to be the fact that Google isn’t indexing or displaying pictures. On the one hand, this is an argument in Google’s favor: it’s not doing anything that cuts into any kind of market for the images. This is true copying in the abstract. On the other hand, doesn’t that tend to undermine the fair use claim? Google can’t claim the benefit of a transformative purpose in the images, since it’s not offering a search service tied to them. On balance, I’d be inclined to call the digitization of the pictures a fair use, on the theory that it’s a necessary incident to the fair-use digitization of text for the transformative purpose of indexing. You can’t scan the text without also scanning the pictures. But that’s tentative and potentially contestable—and we’ll see, soon enough, what the visual artists are actually alleging.
A few paragraphs from the Financial Times story:
The American Society of Media Photographers and a number of related trade associations are expected to file the case against Google on Wednesday in the US District Court for the Southern District of New York.
The action is separate but similar to a class action that is the subject of a pending $125m settlement filed against Google by authors and publishers related to the Google Library Project, which aims to scan some 18m books on to an online database. Photographers and illustrators were not allowed to join the existing class action suit, and have opted to file their own case.
“Google is scanning in books and publications with visual images, which impedes the rights of the copyright holders of those images. We are seeking compensation for that,” said James McGuire, founding partner of law firm Mishcon de Reya, who is leading the case.
Hat tip: Resource Shelf