In the last few years search engines have started to scan the Web not only for text but for pictures too. Today, with a few keywords, anyone on the Web can gain access to a trove of images, from cartoons and graphics to personal photographs and celebrity shots. So if you are one of the few Americans who have not yet passed judgment on Jennifer Lopez's risque dress from the 2000 Grammy Awards, you now have your chance.
But to make such gawking possible, search engines are taking a controversial step. Their technology, which uses Web searching tools called spiders, now makes copies of every image they come across, whether the search engines have permission to do so or not. Those images, many of which are reduced to thumbnail size, are then displayed in the search engine's results listings, again without explicit approval from the artists who created the images in the first place.
Leslie A. Kelly, a photographer in Huntington Beach, California, who maintains Web sites featuring his work, calls this blatant theft. To prove his point, he filed a lawsuit two years ago accusing Ditto.com, one of the earliest image-search engines, of copyright infringement.
"They take the work of artists, photographers and others and then use them for their own commercial benefit," Kelly said.
A federal judge ruled in Ditto.com's favor in late 1999. Next Monday, in Pasadena, the 9th Circuit US Court of Appeals will hear oral arguments in an appeal of that decision. Kelly -- and several artists' associations that have sided with him -- want the court to consider the harm that may come to them if search engines are allowed to copy and distribute their work without permission.
Think Napster, they say. The search engines, they argue, are enabling computer users to pilfer online art, since they can use the search sites to view and download images without setting foot on the artists' sites. The search engine essentially becomes a "clip-art service," Kelly says, that gives artists no credit and cheats them of revenue.
Search companies and Internet-based artists are watching closely. So are lawyers, since the dispute is yet another twist in the debate over how copyright laws should be applied on the Internet.
The case even has relevance for anyone who has copied an image from a Web site through no more effort than a right-mouse click.
Many people assume that anything on the Web is free for the taking. Not so, according to copyright experts. Almost any creative work that is posted on the Web is protected by copyright, even if it has not been registered with the copyright office. The exceptions are works for which copyrights have expired (like Huckleberry Finn or turn-of-the-century recordings) and works declared to be in the public domain by their creators.
But just because something is copyrighted does not mean it cannot be lawfully copied. So the real question is, are there images -- or any other works for that matter -- that can be legally copied without asking permission?
The answer, it turns out, varies depending on what the copy will be used for and who is doing the copying. Here is where the concept of "fair use" comes in, which holds that unauthorized copying is permissible if it is for educational use, for scholarship or to provide commentary.
Most lawyers, for example, agree that an individual is allowed to copy and post a photograph on a Web site if it accompanies a critical review of the photograph. But people who post unauthorized images on their Web sites simply to add splash, or even use them as wallpaper on their computer desktops, may be violating the law, even though it is unlikely that a company will go to the effort to sue them over such an infraction.
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