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Say, I use a thumbnail photo, as a smaller or cropped version of the original photo on a site/blog. The thumbnail is used as a preview to the post/article that has the full photo along with the original photo and credit/source of that photo.

Since the full photo is already credited in the post details, do I also need to credit the thumbnail?

That's assuming of course that I am allowed to use that photo to begin with as long as I credit the source/author.

gdaniel
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  • Copyright requires the work to be at least transformative which a thumbnail is assuming you are creating a reasonably smaller version of the original image. I have two answers that covers copyright and transformative work along with other answers. Here are the links. https://webmasters.stackexchange.com/questions/86631/can-you-be-sued-for-using-publicly-used-images-on-a-blog-without-copyright-permi/86637#86637 https://webmasters.stackexchange.com/questions/95356/is-it-legal-to-cache-rss-images-on-my-server/95374#95374 – closetnoc Feb 12 '18 at 19:12

2 Answers2

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Several court cases have held that using thumbnail images is fair use when:

  • They are small enough that they don't don't satisfy the users' desire to see the larger original.
  • They serve a different purpose than the original, especially when that different purpose is to direct users to the original.

Here is an article written by a lawyer that lays it out in more detail: http://garson-law.com/thumbnail-images-infringement-or-fair-use/

As far as crediting the thumbnail, when you use something under fair use, you are not required by law to credit that usage. See http://cmsimpact.org/resource/fair-use-frequently-asked-questions/ That article suggests that credit is important to artists and it is good etiquette to provide the credit. I'd say that your link to the original would satisfy most creators' desire for credit.

This answer was written with US law in mind.

Stephen Ostermiller
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The above answer from @Stephen Ostermiller is incorrect. ANY use of an image that is unauthorized, regardless of size, is copyright infringement and you would be liable for damages. If you don't believe me, call any copyright lawyer and tell them someone is using your images as thumbnails on their website and you want them taken down and the lawyer will offer to take your case and send DMCA takedown requests. The only instance where you can get away with it is when users of your website are uploading the images and you have a DMCA section on your site that explains what a copyright owner must do in order to have the image removed. This is because your website is crowdsourced. If you, however, are the one posting the image, you are not protected by DMCA. The only reason large websites like Google and Pinterest get away with it is because they have a lot of money to sink into legal fees and most copyright owners don't. Even if the images are crowdsourced, you can be held liable for damages since you are using the image commercially. The only way around this is to not monetize your site.

Source: https://www.copyright.gov/fair-use/more-info.html

Regarding using the item in a commercial sense, the weight of using it in a commercial sense, and of course determining damages (although, yes, damages are an afterthought), here is an excerpt from the above government URL (my emphasis is bold):

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

....

Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

Clearly, the DMCA says that commercial use has an impact on the decision if the impact on the original copyright owner's business without permission is apparent. And what plaintiff wouldn't argue that?

zoltar
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    This is beyond completely wrong. I specialized in copyright law for my many years of technology consulting. I know the subject matter well and have written about it extensively. – closetnoc Feb 13 '18 at 01:16
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    I cited credible sources in my answer while you cite none. You assert that violating copyrights in a commercial setting makes you liable. That is a common myth about copyright. The act of copying is what makes it illegal, not the money made from it. Making money by violating copyright can increase awarded damages, but it in no way changes whether or not you are held liable. See: http://www.templetons.com/brad/copymyths.html – Stephen Ostermiller Feb 13 '18 at 01:34
  • It's funny that you two would downvote me when the information is so readily available just a google search away, but there, I added the only source that matters. Again, call a lawyer as a plaintiff, not a defendant, and see what they tell you. If they say anything different, they simply don't know the law. – zoltar Feb 13 '18 at 02:22
  • Consideration of commercial use is limited to harm. There are many criteria involved. Thumbnails are not copyright violations. Period. Here is a landmark case on the subject. https://en.m.wikipedia.org/wiki/Kelly_v._Arriba_Soft_Corp. Even in your own edit, the citation you provide discussed the harm requirement. – closetnoc Feb 13 '18 at 03:04
  • What is your point, @closetnoc ? You are not disproving anything I've said. Plus, the link you provided leads to a blank wikipedia page. To say "thumbnails are not copyright violations" when the law itself doesn't even mention thumbnails proves that you don't even understand the law in the first place and are trying to add to it. That isn't how it works. You are to abide by the law, not amend it at your own free will. The court will see that the plaintiff is not given credit to a monetized use of their copyrighted material and will decide in their favor. – zoltar Feb 13 '18 at 05:10
  • I found the wiki article about the case. https://en.wikipedia.org/wiki/Kelly_v._Arriba_Soft_Corp.#Result_of_the_analysis

    However, this case is regarding a search engine. I don't disagree with the ruling, for the record. But if you want to cite this case, then what really matters is if the OP is running a search engine or not. If not, they are treading in different territory and will have to make the same argument on each of the four pillars, which I doubt they can since it sounds like they are using the images for something that benefits them and not the source.

     – zoltar Feb 13 '18 at 05:27
  • The point is a thumbnail is transformative and cited in another work. It is as simple as that. Perfectly legal for anyone to do. I know copyright. Your answer is just plain wrong. And what's more is your stubbornness to listen to those who have been around the block and know a thing or two. There are enough cases involving this issue that it has been settled law for quite some time. It is not opinion. It is fact. I am done here. – closetnoc Feb 13 '18 at 05:56
  • Being transformative simply isn't enough, as outlined by the law. To say "The point is a thumbnail is transformative and cited in another work. It is as simple as that." is a straight up lie since we can all click the link to the actual law and see that there is more to it than that. In fact, we've been talking about these 4 criteria, so for you to choose only one and say that's all that matters is just bonkers. – zoltar Feb 13 '18 at 06:24
  • Thank you for editing your question and adding a reference. I've removed my downvote because you did that. – Stephen Ostermiller Feb 13 '18 at 10:33
  • The article I linked to has three court cases in it. The search engine case as well as Bill Graham Archives v. Dorling Kindersley Ltd where low res photos were used to annotate a timeline in a book. Also Stephen Kennedy v. Gish, Sherwood & Friends, Inc. in which low res images were used in advertising mockups. – Stephen Ostermiller Feb 13 '18 at 10:36
  • Advertising mockups seem irrelevant, but the Bill Graham Archives v Dorling Kindersley Ltd case is troubling to say the least, yet enlightening.

    The argument regarding transformative-use markets vs traditional-use markets would make sense if DK had altered the images. But if "transformative" means merely using the image differently than how it was originally intended to be used, then ultimately that is a pretty large loophole that anyone can use to effectively steal copyright.

    Because you brought this eye-opening case to my attention, I am conceding.

     – zoltar Feb 13 '18 at 11:41