In the latest twist in the Google Book Search settlement saga, graphic artists and photographers today filed a class action suit in a federal court in New York claiming Google's book-scanning and display infringes the copyrights of artists and photographers. The suit, which seeks "monetary, injunctive, and declaratory relief," comes weeks after a contentious, daylong fairness hearing on the Google settlement, and months after Judge Denny Chin, now deciding the fate of that settlement, denied a request by the artists to join the $125 million class action settlement as a party. While photos and illustrations not explicitly licensed or in the public domain are not included in the Google Book Search settlement, and are not displayed, that exclusion of visual artists and their works formed the basis of this latest, not unexpected, suit.
"In a sense the artists are doing what the parties and Judge Chin all but invited them to do," New York Law School's James Grimmelmann told PW. "The parties said ‘we're not required to include you in our settlement,' and Judge Chin said ‘you can't join as additional plaintiffs to negotiate, but you can have your own lawsuit.' The artists have called that bluff."
In a statement, Google spokesman Gabriel Stricker, said the company is "confident that Google Books is fully compliant with U.S. and international copyright law."
Eugene Mopsick, president of the American Society of Media Photographers (ASMP), one of the lead plaintiffs in the suit, told PW he was "surprised, shocked, chagrined," that visual artists were denied a role in the settlement crafted by authors and publishers. "At one point, visual artists were included in the original suit, and we were excluded just prior to the settlement. I would have thought that on the sheer basis of similarity, coupled with judicial economy and public interest, it would have been painfully obvious that we should have been included. We were left with little choice but to go away, or to file our own class action."
In terms of similarity, the suit, (filed on behalf of the ASMP, the Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photography Association, Professional Photographers of America, photographers Leif Skoogfors, Al Satterwhite, Morton Beebe, Ed Kashi and illustrators John Schmelzer and Simms Taback), makes many of the same allegations originally made by publishers and authors, charging Google with ongoing and willful copyright infringement connected to the company's library scanning efforts. And in one spot of judicial economy, the case appears to have been assigned to Judge Denny Chin.
The "central fact distinguishing this lawsuit from the Authors Guild suit," Grimmelmann explains, is that Google isn't indexing or displaying the pictures it scans. But that could either help or hurt the company's fair use argument. "Google will argue that the scanning is fair use," Grimmelmann notes, and maintain that its scanning the images in books is incidental in its attempts to acquire the text, and that the company is "not doing anything that cuts into any kind of market for the images." On the other hand, he adds, "Google can't claim the benefit of a transformative purpose in the images, since it's not offering a search service tied to them." While Grimmelmann says he tends to see the scanning of the pictures as fair use with "the transformative purpose of indexing," he acknowledges that's a "tentative and potentially contestable" view.
And, he adds, it seems unlikely that the fair use claim in this case will ever make it to judgment. "Maybe they are going to litigate this though to judgment, but my guess is that both sides are more than happy to work out a deal."
Mopsick told PW that the plaintiffs are indeed more concerned with an agreement going forward than a ruling on fair use. "What we're interested in, in the long run is a place at the table, and an opportunity to be involved the creation of a system that will ultimately lead to compensation by Google or those others who use our members' images online. By no means are we interested in prohibiting those uses. We're not trying to bury our heads in the sand and say these uses shouldn't be made. What we want is a hand in crafting a system."
The case is certainly less interesting as a fair use exercise, than as more confirmation of a major policy shift for the digital age. "What we are seeing is the commencement of the age of filing copyright class actions as a way of creating universal licenses," Grimmelmann told PW. For the parties involved, that makes sense, he acknowledges. "But as somebody concerned with the rule of law and the judicial system, this is an awful way to create copyright policy."