Copyright on Thumbnails

30 May 2014

Region: Headquarters

What do you consider to be an 'insubstantial portion' of one of your photographs ... and is it something that you would be willing to 'give' freely to the world?

This question is important when it comes to copyright. It is often possible to freely reproduce a tiny part of a copyright work without restriction: a sentence from a book perhaps. But what is the equivalent of a sentence when it comes to an image. Is it like the riff from the tune Colonel Bogey, which made for a famous test case of just what is 'insubstantial' when a boys brigade band marched past during the filming of a newsreel many years ago? Whistle me the right eight notes, maybe even the first two, and I'll name that tune. Is 'Reader, I married him' an insubstantial part of Jane Eyre? Insubstantial is not a quantitative item. But you can write the words 'Colonel Bogey' or 'Jane Eyre' in a list.

I ask this because of a fundamental problem that arises with databases of images. How do you list them? Words are not enough. There will always be a few photographs, such as 'Moon and Half Dome by Ansel Adams', where many people will be able to conjure up the image from memory by being told the title, but those images are few and far between. Even if you give your photograph a title, does anyone else know it?

The technical solution is a thumbnail copy of the image: one that is large enough to be recognisable but not large enough to be useful as anything but a thumbnail. Say 100 or 150 pixels along the larger side. This would not be insubstantial since the image would be recognisable.

In fact Google already do this but they don't have permission to do so and successfully claimed 'fair use' under American law. To be technical about it, the thumbnail was judged to be 'transformative' since Google transformed the images from a piece of art or entertainment into a mechanism for retrieving information. But that was in the USA and the law in Europe isn't the same.

Would you be willing to 'give up' your rights in a thumbnail copy of your photographs in order for the images to be freely indexed and linked across the internet? What do you think?

Andy Finney is an RPS member and also writes for

Comments (1)

03 June 2014

I recently attended a meeting at the Photographer's Gallery under the title "Does copyright still exist?" One of the speakers emphasised that full application of UK copyright law prevented her talk including any illustrations to cover the subject. The general thesis of the event was that UK copyright law was a long way behind the existence of the internet age and its norms and US copyright was only a little further ahead.

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