Protection from Chaos Part VII: Thumbnail Images

http://bodinelaw.com/images/ThumbnailGoogleSearch.png

Recently, Paizo was said to have issued a cease and desist letter ("C & D") to Obsidian Portal on account of a campaign on their website. Apparently, the campaign manager was including thumbnail images of Paizo’s item cards, a product sold by Paizo.

What actually happened? We’re not sure. We don’t have access to the C & D, and the comments from the dime-store Constitutional scholar that runs the campaign aren’t helpful in understanding what’s happened. Accordingly, I can’t speak, even in theory, to the merits of Paizo’s case. Paizo has a rather generous policy for how they enforce their intellectual property (available here if you want to read it), and the campaign owner completely mischaracterizes what this policy says. The only statement we have from Paizo was from Erik Mona, and it suggests the campaign manager is overreacting; however, this doesn’t necessarily mean that Paizo is in the right.

Instead of engaging in the foolish process of handing out legal advice through the Internet, I’m simply going to go over a case that will have influence over whether Paizo wins any hypothetical lawsuit they would have. Because the campaign manager has taken down the thumbnail images, no such lawsuit is likely to occur here, but this is an issue that could easily arise again.

Fair Use

First, let’s briefly remind ourselves of the campaign manager’s likely defense to a charge of infringement, Fair Use. As I said in Part IV of this series, Fair Use is a risky concept on which to rely. It’s a vaguely-defined affirmative defense to copyright infringement, which means 1) you have to admit you infringed a copyright; and 2) you (often) have no idea whether the court will agree with your justification. For most gamers that are too cheap to buy hardcover sourcebooks from their local gaming store instead of Amazon.com, it’s better to avoid the issue altogether than risk the penalties I discussed in Parts I and II of this series. (This argument, of course, falls on deaf ears, as gamers continue to create, download, and share PDFs in great numbers without concern, and based on his ridiculous rant in the comments, that attitude is apparently shared by the campaign manger.)

Thumbnail Images: Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007)

Side note: This case was really about legal procedure. As a result, Amazon.com's activity was not at issue on this holding. However, they're the first named defendant in this case, so it bears their name. Google's actions were the only ones still at issue when the Court gave us it's holding.

Perfect 10, Inc. sold pornographic pictures, but they also sold small versions of those pictures (i.e., thumbnails) for use on people’s phones. Other websites infringed Perfect 10’s copyrights by posting those pictures in areas accessible freely by the web-surfing public. Google regularly searched the Internet for photos, indexed them, converted them to thumbnails, and included the thumbnails as search results. All of this was done automatically (i.e., without human intervention), so inevitably, Google grabbed photos from the infringing sites. Perfect 10 filed a civil action for copyright infringement, and Google claimed a Fair Use defense.

The court found that the thumbnails did directly infringe Perfect 10's thumbnail images, but that the thumbnails did not directly infringe on the full-sized images, which is interesting in light of the present hypothetical case with Paizo. In holding that the direct infringement of the thumbnail images was justified anyway, the Court applied the four statutory fair use factors (found in 17 U.S.C. § 107), which include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The Court deemed the first factor, "the purpose and character of the use," to be controlling, holding that Google’s use of the work as highly “transformative,” which in this context means that the works (i.e., the images) are being used for a completely different purpose by Google (i.e., searching) than by Perfect 10 (i.e., use your imagination; this post is PG-13 at worst). The Court recognized the benefits provided by the service to the public. So, even though the entire copyrighted work (the thumbnail images that Perfect 10 sells) were used, the first factor was so well satisfied that it overrode all other considerations, and the use was deemed fair.

Can the Obsidian Portal site say that these thumbnail images were used for anything other than what Paizo intended? Without access to the campaign website, we can’t answer that, but it would seem that their only use was exactly that which Paizo intended (or at least, that's how people would use them).

On the other hand, the Perfect 10 case also shows us that the use of thumbnails doesn’t necessarily infringe that of full-sized images. Let’s make sure you understand exactly what the court was saying. It did not say that the thumbnails infringed on the full-sized images but that it was a justified fair use. What it did say is that the thumbnails didn’t infringe the full-sized images in the first place. Considering that the thumbnails I’ve seen on Google search engines are clear images, just smaller, it seems like using unclear thumbnails that can’t be expanded to the full image are even less likely to represent direct infringement.

Did the campaign manager do that? Again, we don’t know. Still, even if he did, there may be other extenuating factors that make this infringement anyway. For example, does Paizo sell or distribute thumbnail images of the item cards? I don’t know, though I expect many of you do know. As always, the issue of fair use turns on the application of four vague factors on the particular facts of the case, and I warn all of you not to rush to judgment in a situation like this where many of the facts are unknown.

The Court left open the possibility that Google could be liable for contributory negligence (i.e., helping others commit copyright infringement) because Google helped web-surfers find websites that were clearly infringing Perfect 10’s copyrights in the large images. The Court returned the case to the lower court to determine whether Google had “actual knowledge that specific infringing materials are available using its system . . . [could] take simple measures to prevent further damage . . . and failed to take such steps.” To my knowledge, there are no follow up cases, which means that either the case is ongoing or has been settled/dropped.

The ENWorld Thread

A thread popped up at ENWorld on this subject, and like many threads on many websites, it was full of strong statements on law that are flat out wrong. I didn’t comment because, when I have in the past, my comments and references proving the truth of my statements has been ignored. There’s just no talking to some people. Here are just three of those assertions and some food for thought on each.

You can lose your copyrights if you don’t enforce them.

False, at least in this context. This is yet another example of people confusing trademark with copyright. Would someone please tell that woman on FX Network’s “DVD on TV” show that “Let’s get ready to rumble!” is a trademark, not copyright, of Michael Buffer?

You can lose your trademarks if you don’t enforce them, because one of the conditions of your ownership of a trademark is that you’re using it exclusively (in a particular jurisdiction or jurisdictions) in conjunction with the sale of goods and services. Allowing others to do so removes their distinctiveness, and thus their value to the public as an identifier of the source of the goods and services, and so the trademark goes away.

Not so with Federal copyright. You get a copyright because you created a tangible expression of an idea, representing a minimum amount of originality, etc. That’s the (oversimplified) requirement, and if you meet it, you have a copyright. Whether you write nasty letters or file lawsuits are irrelevant. However, there are certainly some actions you can take that will cause the material to pass into the public domain. There just aren't any (relevant) non-actions you can take to lose your federal rights in a copyright.

There are some obscure copyright concepts (e.g., termination) that one could rationalize as "non-action resulting in a loss of copyright." These issues are obscure and irrelevant here, and arguably aren't really "non-action," so I'm not going to discuss them. The point is that failing to yell at people for infringement doesn't invalidate your copyright.

The Campaign Manager will likely face jail time for this.

Not even close. See Parts I and II of this series. With what little information we have about this case, it doesn’t seem that there’d be any criminal liability under 17 U.S.C. § 506. The campaign manager isn’t making a profit off of the images, and these aren’t DVDs, so the only way for criminal liability to attach would be if the collective value of the item cards he posted were in excess of USD $1,000.00. Even assuming he posted 100 item cards, unless Paizo is charging $10.01 per card, that threshold hasn’t been met. According to my search results, Paizo charges about $20 for a pack of 110 cards. Unless a pack of 110 cards includes only two types of cards (55 cards of each of two types), there’s no way to rationalize that a single card costs $10.01 or more. (In fact, because 55 cards are sold for $10, you could easily argue that the value of a card remains only $0.18 per card even if the images are the same, though fair use factor #4 would become a more important factor.)

Point: The infringement, on a quick glance, seems pretty inconsequential. At least as described. I can't see it anymore because it's been locked away.

Counterpoint: Whether or not the infringement is of consequence only matters when you're measuring damages.

Either it’s unjustified, unexcused infringement, or it isn’t, and if it is, statutory damages are always available without having to do any measuring yourself. Of course, the counterpoint is still valid, as a court will measure the damages for you. As I showed in Parts I and II of this series, there’s a wide variance in what a court can award for statutory damages. Also, in fairness to the person making the initial point, while the "degree" of infringement is irrelevant to a finding of infringement, it can clearly have an impact on the subsequent question of whether fair use will apply.

Conclusion

Because the law is vague, we don't have all the facts, and at least one of the parties is angry, we don't know whether this case would ever result in recovery for Paizo. Moreover, it's a non-issue. Instead, this article is intended just to give you a little more knowledge on the subject. Like a gun, such knowledge can be abused. Please try to avoid that.

If you want more information on the subject, the standard hourly rate applies.

Aside #1: The Ninth Circuit

The Ninth Circuit has a well-deserved reputation for being a little loopy. They are constantly interpreting the United States Constitution to suit their own needs rather than based on what’s actually written, and while that’s something every circuit does from time to time, the Ninth almost always seems to be at odds with the rest of the country. However, the Court’s opinion in Perfect 10 was detrimental to its own selfish interest lending it not only credibility but also reliability as the way other courts might rule. That is, the Ninth Circuit, home to Hollywood, often rules in favor of copyright owners (the one and only big-business bias that Circuit has), but here they’re broadening the scope of Fair Use to the detriment of the entertainment industry. That’s something to consider as far as predicting how other circuits might rule. FYI, the Second Circuit, home to Broadway and 30 Rock (and its ilk), and the Sixth Circuit, home to Nashville, also share this same bias.

Aside #2: State Copyright Law

There are some copyrights subject to state regulation, and that could change the discussion a bit here or there. However, state law doesn’t apply to the Paizo issue or Perfect 10, so there’s no need to open that can of worms here. Perhaps I have a topic for Part VIII . . . .

Rob Bodine is an Intellectual Property and real estate attorney in Virginia. He is also an avid gamer and proprietor of the East Coast's premier gaming convention-- synDCon (www.syndcon.net). You may follow him on Twitter at @RobertEBodine (politics and law), @GSLLC (gaming), and @synDCon (convention announcements only). If you’re a sports fan, follow him @MMADork and read his blog.