Photographers in Copyright Infringement Suit Against Google

The National Press Photographers Association (NPPA) recently announced that it is joining the other cast of characters who have filed a class action complaint against Google, claiming (as the other plaintiffs have) that Google’s “Google Book Search” program violates the copyrights of several photographers and visual artists. The other plaintiffs include individuals Leif Skoogfors, Al Satterwhite, Morton Beebe, Ed Kashi, John Schmelzer, Simms Taback and Gail Kuenstler Living Trust, Leland Bobbe, John Francis Ficara and David Moser, and associations The American Society of Media Photographers, the Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photography Association, the Professional Photographers of America, and American Photographic Artists.

So what brought on this class action suit in the first place?  Well, it would seem that whenever someone conducts a search using the Google Books program, that search brings up images that are contained in both books and periodicals–images that are copyright protected. And apparently, this isn’t the first time Google Books has been under fire in litigation–even the writers of some of the books and periodicals that come up when using the search have also claimed copyright infringement.

The Allegations in the Complaint

The amended complaint details the claims that are typical to the members of the Class, and it specifically notes several questions of law that are common to the Class, including, but not limited to:

• Whether Google’s alleged conduct constitutes infringement of the visual works held by members of the Class and the individual plaintiffs;
• Whether Google gains direct financial and related benefits from the infringing acts complained of;
• With regard to the acts complained of, whether Google acted willfully;
• Whether injunctive and/or declaratory relief is appropriate; and
• Whether the individual plaintiffs, along with the Class, are entitled to receive damages for Google’s wrongful conduct.

The plaintiffs, who are representing the Class, first make it clear that they exclusively own the rights to all the visual works that have been, or potentially will be, “reproduced, distributed and displayed by Google without authorization.”

The common allegations begin with a discussion of Google’s general business, which, as we all know, is the Internet search business. The company eventually decided to build a database online of all the books in the world–lofty idea, right?  Well, they started their mission by obtaining agreements from several major U.S. university libraries, to include the Universities of Virginia, Michigan, California and Wisconsin, as well as Stanford University.  So you might be asking, “Well, what’s wrong with that?” The problem is that Google is collaborating with these libraries to “digitally copy and reproduce books and the visual works therein from their collections and distribute and display this content through Google Book Search.”

Additionally, Google has shared those digital copies with others, and the company provides the scanning technology that permits the aforementioned books (along with the soon-to-be added collections) to be copied, distributed and displayed.  In furtherance of Google’s mission, the company created a partner program whereby book publishers (and periodical publishers) can give Google either the hard or digital copies of books or periodicals (and the visual works that they contain) that they have published.

Google has conceded that it has already scanned over 12 million books and has identified 174 million books that it “might” seek to copy, distribute and display.  One of Google’s reasons for using the books and periodicals–to draw not only interested visitors but also advertisers to its site.  Given these facts, the plaintiffs and Class members reiterate that Google has already reproduced various books and periodicals that contain visual works that the plaintiffs and Class members own exclusively. Furthermore, Google has done so and continues to do so without the permission of the copyright holders and in violation of their exclusive rights under the Copyright Act.

Moreover, Google has made it clear that it intends to continue copying the books and periodicals in further development of their online database, sell subscriptions to the database to its institutional customers and general online consumers, and expand future revenue streams from sales of consumer subscriptions to its database, print on-demand services, PDF download services and other services.

The plaintiffs claim that Google’s actions have caused and will continue to cause damage and irreversible harm to the plaintiffs, unless Google is restrained.  The lead plaintiffs in this action stated that they decided to take on Google because they believe that it is their responsibility to support those artists whose copyrighted work is, in essence, being cheapened by Google.  Mike Borland, president of NPPA, agreed with Executive Director Mindy Hutchinson who stated in an interview that, “it was only natural for the association to join its peers in this suit.”  Mr. Borland added that it is crucial that they (meaning the plaintiffs) don’t “allow companies like Google to infringe upon our rights uncontested.”