Home > Insights > Blogs > In Focus > Can you make an infringement claim over thumbnail images?

Can you make an infringement claim over thumbnail images?

Mike Nepple May 12, 2016

Thumbnail images are used all over the web, but it’s the use of smaller reproductions of photographs in a recent print book that caused The New York Times to file an unusual copyright lawsuit in the Southern District of New York.

The suit was filed in December 2015 against the publisher of David Shields’ 2015 book, “War is Beautiful: The New York Times Pictorial Guide to the Glamour of Armed Conflict.” In his book, Shields, a critic of the Times’ coverage of the war in Afghanistan, argues that the newspaper has consistently selected war photographs for its front page that “glamorized” war. Shields supports his hypothesis by analyzing 64 war photographs that appeared on the front page of the Times between 2002 and 2013. Before publication, Shields’s publisher, powerHouse Books, secured a license from the Times to use each of the 64 photographs that appear full-size in his book.

However, on the inside back cover of the book, the corresponding front pages of the New York Times containing each photograph are reproduced in their entirety. The 64 front pages are each approximately 2” x 3” in size. The Times sued for copyright infringement based on these thumbnail reproductions of its front page.

New York Times - David Shields book jacket

In an interesting twist, the publisher named the law firm that gave them a fair use opinion letter as a third-party defendant. Essentially, the publisher claims that if it is liable to the Times because the thumbnails weren’t fair use, then its law firm is liable for giving it bad fair use advice.

Courts last addressed the issue of the use of thumbnail reproductions in the Second Circuit almost a decade ago in Bill Graham Archives v. Dorling Kindersley Limited, 448 F.3d 605 (2d Cir. 2006). In Bill Graham Archives, the district court found seven Grateful Dead posters in a historical retrospective about the band to constitute a fair use. Each of the seven posters was reproduced in its entirety – but in thumbnail size (also approximately 2” x 3”) and they appeared in chronological order in the book. The district court granted summary judgment of fair use, found that biographies fit within the fair use framework, and that the reduction of the posters to thumbnail size “indicates an entirely different use of the image.” On appeal, the Second Circuit affirmed the fair use determination, finding that the use of thumbnails in a biographical work to be highly transformative, citing to Judge Pierre Leval’s seminal law review article, “Toward a Fair Use Standard,” 103 Harv. L.Rev. 1105 (1990).

The New York Times’ infringement lawsuit is moving forward in the Southern District of New York; we’ll find out if these tiny photographs will cause a big problem for the book’s publisher.

Mike Nepple is an partner in Thompson Coburn’s intellectual property group. He can be reached at (314) 552-6149 or mnepple@thompsoncoburn.com.