Les Kelly, photographer, author, and activist, has been battling the search engine industry for several years, claiming that search engines that display photographers’ images in their massive databases are doing this illegally and shouldn’t be displaying photos on the Web unless they receive permission from the individual photographers.

I believe we would all agree that if search engines are making profits from photos that that they put on display, then the search engines should share those profits with the photographers.

The search engine people retort, "We're not making profits from your pictures. Heck, we are giving you photographers free publicity. You should be paying us! When was the last time someone provided you with a free exhibit of your work?"

Kelly answers them by saying that since the search engines solicit advertising, the displays of photos are profitable for them because the images attract more visitors, which in turn attracts more advertisers.

"If the search engines are making profits from individual photos, then they should share those profits with the photographers…"

All of this will be decided, one day, in the courts. (For details about Kelly's appeal of the court ruling against his initial suit, "Kelly vs. Arriba Soft": http://www.photosource.com/photoaim/kelly.html ). Kelly and his attorney, Steven Krongold, continue to swim upstream through increasing complications as the Internet swells to a size few of us would have ever imagined. Today, for example, there are more than 1,600,000,000 websites.

What if They Win?

Let’s say that Kelly, and the photographer and graphic groups that support him, win the court battle. Photos would no longer be available in this manner for photo research (or for 'stealing'). What would that mean to those photographers who prefer to see their images displayed, in the spirit of free enterprise, on the various search engine sites? Kelly proposes that the search engines get permission first before displaying an image, and be allowed to display either by invitation only or by licensing agreements only. This would certainly cramp the efforts of researchers, who generally experience no such restrictions on material in their text research projects. Some photographers already are threatening to remove their images from the Web if the search engines prevail in the suit.

If, as is currently the case, Pete Turner (http://www.peteturner.com), Jay Maisel (www.jaymaisel.com), and Arnold Newman (www.arnoldnewman.com) feel disposed to display their photography on the Web, with no restrictions other than to register (free) to see samples of their work, they must see the benefit of the widespread promotion the Internet can give their images.

If it transpires that we do need stringent laws to protect us from image thievery (which is not likely, in my opinion), we know that Bill Gates (Corbis) and Mark Getty (Getty Images) would be jumping in to be part of the battle.

The baby is going out with the bath water if Kelly wins his appeal. In contrast, if he loses the appeal, the free-flow of information will be allowed to prevail. And in the meantime, as the general public becomes increasingly educated as to the penalties involved in copyright infringement, both opinions will survive.

"...The search engines should be required to give either the photographer's credit line or the source website for each photo, with an overall warning about unauthorized use of copyrighted photos..."

We stock photographers will enjoy the promotional advantage of search engines displaying our images, the only caveat being that the search engines be required to give either the photographer's credit line or the source website for each photo, with an overall warning about unauthorized use of copyrighted photos. Photographers' copyright attorneys would take violators to court.

It's important to note that Kelly is not a stock photographer. He is a commercial assignment photographer, and perhaps doesn't have a complete understanding of the stock photography world and facets of the marketing of stock photos. For example, in the accompanying interview (see page 2, column 2), he states, "I am not aware of a large number of photographers who make their livelihood selling their images on the Net."

Photos, in the Information Age, are bytes of information. Kelly's position translates to restricting the free flow of information, and especially at this time, seems somehow out-of-date, even inappropriate, given the entrepreneurial spirit of the Internet.

In my experience in the stock photo field, neither image viewers nor image borrowers are out to steal from authors and photographers. And except for rare exceptions, crime, usually, doesn’t pay. Especially if it’s out on the Internet where all can see it happening.

There's an interesting parallel that has surfaced in connection with Kelly's efforts, that seems germane here. If someone makes a photocopy of a copyrighted newspaper article and sends it to a business associate, does that denote copyright infringement? Certainly not. It's "fair use." The New York Times website states, for example, "All materials contained on this site are protected by United States Copyright Law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of The New York Times Company. However, you may download material from The New York Times on the Web (one machine readable copy and one print copy per page) for your personal, noncommercial use only."

Now here’s the connection: In my e-mail, today, as a newsletter publisher, I received from the Kelly organization a substantial PDF file copy of a New York Times newsarticle outlining the Kelly vs. Arriba Soft court case dilemma. A copyright statement, "Copyright 2001 The New York Times Company," was displayed at the end of the article I received. I saw nowhere anything that referred to "Used With Permission." The beginning of the article does encourage readers to "E-mail this article." But it seems this would be restricted to one copy, as per the Times Copyright statement quoted above. Because Les Kelly stands to receive a significant award for damages as a result of vicarious infringement in this case, it could be construed he is using copyrighted material for influence and promotion purposes.

Question: Was the Kelly organization in this instance practicing the same "benign" infringement action that Kelly is warning against (i.e. fearing that search engine photo displays would give rise to an explosion of illegal "borrowing" of images)? Well, I don’t think so. I think Kelly felt the free flow of information about his upcoming appeals case was important to distribute to news organizations such as ours. But it does pose a paradox.

I point this out because it’s important to separate copyright thievery from beneficial broadcasting of information. And that includes newspaper articles as well as photos. Is Kelly's suit asking us to return to the last century, where it was predominantly only "well-known" photographers who could enjoy substantial promotion of their photography because of their recognized "name"?

Although the middle ground has not yet been discovered, there should be a way to continue to promote and disseminate our photographs on the Internet and yet be protected from those who might profit from them illegally. I don’t think cutting the whole tree down because someone might steal some of the apples is the right way to go about it.

Comments on this column? Send them to the editor.

Rohn Engh, Photosource International.