German Federal Supreme Court finds that Google’s image search does not infringe the rights of copyright holders

On 19 October 2011 the German Federal Supreme Court (Bundesgerichtshof) affirmed its decision issued last year in Vorschaubilder I (case reference I ZR 69/08 of 29 April 2010) that Google’s image search does not infringe the rights of copyright holders (decision not yet available, but official press release available here in German).

In this case, the claimant was a photographer whose photos had been reproduced by unauthorized websites and indexed in Google image’s search results as preview pictures (thumbnails) with a link to such websites. However, this case differed from Vorschaubilder I in that the original photos had not been uploaded to the Internet by the copyright owner; instead, the images were uploaded by websites that had been granted the right to publish the photo. The claimant brought action against Google, claiming that he had never consented to the exploitation of his photographs by Google or the websites to which Google referred in its Google image search.

As in Vorschaubilder I, the Bundesgerichtshof held that Google was not liable for copyright infringement; either the rights holder or the websites that were granted the right to publish these photos could have implemented any of the technical means Google provides to prevent a website or file, including a photo, from being indexed on Google’s image search. By not using this option, the rights holder had, therefore, implicitly consented to the reproduction of his images as thumbnail preview pictures. [Béatrice Martinet Farano]