A recent Court of Appeals decision makes the use of frames in Web sites potentially more dangerous from a copyright infringement standpoint.
Internet copyright issues — downloading music, software piracy, cybersquatting — all have received media attention. But last February, with very little fanfare, the U.S. Ninth Circuit Court of Appeals made a decision that could affect the way in which Web sites link to one another. In the first decision of its kind in this country, the court held a company guilty of copyright infringement for using frames to display pictures from another Web site.
The case involved two issues and generated two specific decisions. The first concerned the use of thumbnail pictures of images from the claimant’s Web site appearing on the defendant’s site. The defendant’s site used thumbnails (the quality of which was degraded from the originals) to index and display the results of search engine queries.
The Ninth Circuit held that this use was a fair use and did not violate copyright law. The court, however, held that the use of frames on the defendant’s site to display complete images from the claimant’s site constituted copyright infringement.
When the user clicked on a thumbnail, the site displayed the exact picture from the other site, with the same resolution as the original. The Ninth Circuit noted “the user typically would not realize that the image actually resided on another Web site.”
The Ninth Circuit acknowledged the complete images were not downloaded to the defendant’s server, so the case did not involve illegal copying. However, it held that use of the images infringed the claimant’s exclusive right to display the copyrighted work publicly and “created a public display” of copyrighted works.
The Ninth Circuit concluded such framing did not constitute fair use: “[Claimant’s] markets for his images include using them to attract advertisers and buyers … By giving users access to [claimant’s] full size images on its own Web site, [defendant] harmed all of [claimant’s] markets. Users will no longer have to go to [claimant’s] Web site to see the full-size images, thereby deterring people from visiting his Web site.”
The court stated the defendant was liable for contributory infringement: “[Defendant] actively participated in displaying [claimant’s] images by trolling the Web, finding [claimant’s] images, and then having its program online link and frame those images within its own Web site. Without this program, users would not have been able to view [claimant’s] images within the context of [defendant’s] site.”
Although frames are a type of link, the court did not analyze the legality of links in general. Simple links should be viewed differently than frames. When users click on a simple link, they are taken to the other site and know they are viewing another site.
Unless that link allows users to circumvent password protection or other mechanisms to control access, users are simply responding to what in essence is the second site owner’s invitation to visit.
The lesson is that a company is taking a significantly greater risk by using frames to display images from other sites than it is by simply linking to them. Although linking is not without risk, the risk of liability from framing is significantly greater. How to reach: Douglas Rogers is a partner in the Intellectual Property group of Vorys, Sater, Seymour and Pease LLP. He can be reached at (614) 464-6400.
