It was this act of indexing and analyzing that, in part, convinced Judge Gary L. Taylor of US District Court in the Central District of California that the images in the Ditto.com case were used fairly because the search engine's purpose was "significantly transformative." Lawyers have interpreted that to mean that copying is permissible because the search engine performs an entirely different service than that of Kelly's Web sites.
Kelly argues that the judge missed the point. For example, some of the images captured by the search engine are from a site that promotes California's Gold Rush Country, a book of nearly 500 color photographs that he took. Although he has not presented evidence that he has lost book sales or clients because of such instances, he argues that the potential is there.
Most search engine operators say that as soon as an artist complains, an image is taken off their servers, and that they have programmed their search spiders to avoid images on Web pages that are marked off limits for searching. In fact, Google officials say, most complaints that it receives are from Web site owners whose images or pages have not been included in search results and want to know why.
But such steps to avoid copyright infringement do not satisfy the artists' groups. "It totally violates the concept of prior permission," said Reid Stott, the editor of a Web log called PhotoDude. "These companies are saying, `We will take your copyrighted image until you specifically tell us we shouldn't.' I already do that on every page with a copyright disclaimer."
Without stronger protection, some artists have resolved to keep their work off the Web. "I've known many digital artists that have left the Internet completely," said Jann Johnson, a graphic artist in Phoenix who started a campaign called Rights, for Redistribution in Graphics Has to Stop. "Their work has been reproduced and blatantly stolen."
Perhaps artists can take heart that few people seem to be endorsing visual plagiarism. Siva Vaidhyanathan, for example, the author of a new book called Copyrights and Copywrongs, said he sided with the search engines in the Ditto.com case. But he does not believe that the law should protect someone who is clearly trying to undermine an artist by stealing images.
"The real villain in this case would be the person who decided to make his own gold rush Web site out of images that this photographer put up," he said. "That would be a real problem."?
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