Federal Court Ends Injunction on Perfect 10 Thumbnails

Steve Javors
SAN FRANCISCO — A federal appeals court has issued a ruling that permits Google to display thumbnail-sized images from Perfect 10, ending a preliminary injunction.

A lower court ruled that Google’s thumbnail images violated Perfect 10’s copyright, but that the search giant was “probably not” responsible for posting the underlying images. The 9th U.S. Circuit Court of Appeals reversed those findings.

“We reverse the district court’s ruling and vacate the preliminary injunction regarding Google's use of thumbnail versions of Perfect 10's images,” Judge Sandra Ikuta said. “We reverse the district court’s rejection of the claims that Google and Amazon.com are secondarily liable for infringement of Perfect 10’s full-size images.”

Perfect 10 also named Amazon in the complaint after filing a similar claim.

Ultimately, the three-judge panel concluded that the thumbnails didn’t constitute infringement because they were “highly transformative.”

“We conclude that the significantly transformative nature of Google’s search engine, particularly in light of its public benefit, outweighs Google's superseding and commercial uses of the thumbnails in this case,” Ikuta said. “We conclude that Perfect 10 is unlikely to be able to overcome Google’s fair use defense and, accordingly, we vacate the preliminary injunction regarding Google’s use of thumbnail images.”

However, the 9th Circuit said that the lower court should reconsider its finding that Google was not liable for displaying the images in its Google image search service, thus allowing users to link to or use unauthorized content.

“There is no dispute that Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials,” Ikatu said. “Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10’s copyrighted works and failed to take such steps.”