“Don’t Confuse Me With The Facts”: Image Linking and Distribution

Carolyn Wright is a lawyer who specializes in photo-related copyright issues, and writes a low-volume blog on the subject, Photo Attorney. She sometimes has interesting or informative posts, such as stories of people improperly arrested just for taking photographs in public.

As you might imagine, the subject of photographic copyright sometimes crosses paths with technology, and that spells trouble for someone who doesn't understand the technology. Carolyn doesn't make gaffes of the series-of-tubes nature, but I've cringed at times when she tries to talk about technology.

Such was the case the other day, in a post about “hotlinking”. Hotlinking is the embedding of a reference to someone else's image directly in your web page, as opposed to linking to the image-owner's web page with the image. She referred to the author of the image reference as someone who “infringes” by “reproducing your image”.

Whether something is or isn't copyright infringement is solely determined by the law (copyright is a concept of the law, not a physical process subject to absolute truth), but it's ludicrous to refer to an image reference as “reproducing an image”.

If referring to an image is copyright infringement, I will be infringing on Carolyn's copyright in this box:

http://www.photoattorney.com/uploaded_images/GrizGrowl-711860.jpg

This is not hotlinking, but on one level it's technically identical in that I've included a reference to another person's image in my page.
(This clarification sentence was added after initial publication)

I'd better hope I'm right in believing that it's not copyright infringement to simply refer to the web address of another's image, because I've actually placed two references to the same image in that box: the reference your browser shows you (the letters “h”, “t”, “t”, “p” ....), and a separate reference your browser is not showing you, in HTML code, that your browser may interpret as the address of a web page to visit, should you click on the text of the first reference (the one showing).

Double, willful infringement.

In referring to what I believe to be the web address of one of Carolyn's images – there's no guarantee there's even an image there – at no time do I make a copy of Carolyn's image, store Carolyn's image, serve Carolyn's image, reproduce Carolyn's image, or distribute Carolyn's image. I don't do anything with Caryoln's image, any more than I do anything with Carolyn herself by writing her name.

Anyone who knows the least bit about web technology would never seriously say that referring to the web address of an image is “reproducing the image”, so I sent a kindly note to Carolyn. She replied “Hotlinking reproduces the image”. Um, no, that's what I was writing to correct.

So, I wrote to Carolyn again, being more verbose, using simpler wording. Her reply was what one might expect from a lawyer: ignoring what was addressed, and reiterating what she said the first time.

Sigh. Sorry to have confused you with the facts.

Be clear about one thing: in this post, as in my messages to Carolyn, I make no statement about whether I think hotlinking is good or bad. There are many cases where hotlinking is evil, but like anything, it can good or bad.

I also don't make any statement above as to whether I believe hotlinking is, or should be, considered copyright infringement, but I'll offer that opinion here: how can it be considered copyright infringement to talk about an image? An HTML link is just that, a passive reference to an image. It's an entirely unrelated third party – the reader's web browser – that decides to follow up on that reference and ask the image's server for a copy of the image to display to the reader.

If merely referring to the web address of a copyrighted work is actually copyright infringement, I have no doubt that Carolyn will be angered at my double, willful infringement above. But she'd better not be too angry, because she's a copyright infringer herself: she willfully infringed on my copyright by linking to my copyrighted web page in a post last year about image metadata.


All 7 comments so far, oldest first...

Well said!

If she’s so against hotlinking to images, how then does she justify the legality Google Image Search (actually, she links to an article on how to remove images from this service)? While this service cites where the image comes from, it actually displays the image to the user for them to right click on and download. It’s one thing to steal bandwidth and content from another site and not give credit. But I cannot fathom how hotlinking itself can be considered illegal.

While I have read Carolyn’s website from time to time, I have always had a problem with her format. She sometimes posts great information, but then does not have any way for readers to comment or discuss the topic at hand.

I’ve felt the same frustration from time to time about the inability to comment, but I understand why she might not want to host those discussions. I feel the same about Seth Godin’s amazing blog: the rare time that I feel I can actually add to something he’s said, I have no easy outlet in which to do so. I understand, though, that not everyone wants to host an interactive discussion, and I respect that. —Jeffrey

— comment by Mark on August 6th, 2008 at 9:08am JST (9 years, 4 months ago) comment permalink

I think you are mistaken about what constitutes a hotlink and what constitutes a link.

A hotlink, like a regular link, like the textual representation of a link, are all just sequences of characters. The only difference is where they show up on a web page. My description of hotlinks is accurate, so clearly I know what they are. I gave examples using textual representations and “normal” links to highlight the ludicrousness of considering them to be images in and of themselves.

Here is an illustration: http://mpxstockimages.com/hotlinking.htm

You give examples of a link only, not a hotlink. Carolyn is correct (she always is!). You are not when you accuse her of infringing your copyright. I looked at the article and did NOT see your image embedded in the article.

You are suggesting copyright infringement can’t happen if hotlinking is not taking place, that is, that hotlinking is the only way one can infringe on copyrights. That seems pretty silly.

Search engines, I believe, are allowed to store images on their servers and to “hotlink” for the purposes of cataloguing only.

I don’t know why you bring up search engines, but are you suggesting that they have some moral or legal exemption?

Hope this helps.

Not at all. —Jeffrey

If it does, I would revise the article — before you get sued!

— comment by Shangara Singh on August 6th, 2008 at 5:43pm JST (9 years, 4 months ago) comment permalink

Great post. My understanding of “hotlinking” was that you actually put the image on your webpage (Using the tag) so that it displayed on your page, forcing the location’s host to serve up the data. To the viewer, the source of the image is not at all obvious unless they actively look so see where the image is hosted. I didn’t realize that just putting a link to the image was considered the same thing by some.

It is the same on a technical level, in that in both cases it’s just a passive reference to an image’s location. Depending on what kind of web browser you apply those references to, the user experience could be the same for both, but commonly, they do result in a very different user experience. That difference leads to different emotions. If you don’t understand what’s going on, an embedded image reference certainly feels as if the image itself has actually been included, but that doesn’t make it so.

To be clear, it’s my opinion that hotlinking is not copyright infringement, but the main point I intend to present in my post is that it’s fact that hotlinking is not “reproducing an image”. I doubt that my opinion carries much weight with a court, but the facts should. I would suspect that any finding by a court that hotlinking – referring to the address of an image – is copyright infringement would be met with a First-Amendment rebuttal, but I’ll leave that kind of talk to the lawyers… —Jeffrey

— comment by Keith on August 6th, 2008 at 11:52pm JST (9 years, 4 months ago) comment permalink

“You are suggesting copyright infringement can’t happen if hotlinking is not taking place, that is, that hotlinking is the only way one can infringe on copyrights. That seems pretty silly.”

Not sure how you came to that conclusion.

Because that’s what you said. You said, essentially, “she didn’t hotlink, therefore, she didn’t infringe”.

One example clearyly shows infringement and the other doesn’t.

Clearly, it would not be subject to discussion if it was so clear.

The reality is hotlinking that “embeds” the image in a page permanently is copyright infringement while simply referencing it, as you did in your example and Caroline in her article, so that it appears as a hypertext link only, is NOT copyright infringement.

You put “embeds” into quotes, so you seem to know that it doesn’t actually embed an image, yet you base your entire position on the belief that it does. That just makes no sense.

“To be clear, it’s my opinion that hotlinking is not copyright infringement, but the main point I intend to present in my post is that it’s fact that hotlinking is not “reproducing an image”.”

Not sure how you are squaring that circle either. I gave you an example of a hotlink that clearly infringed your copyright. No sane court would say I did NOT reproduce your image in my dummy website (how it’s done technically is neither here nor there. The fact is I DID reproduce your image without your consent by hotlinking).

I’ll end the discussion here because you clearly don’t understand what’s going on, or if you do, choose to ignore it. I looked at what you had on that page, and my image wasn’t there. You did not reproduce my image. If you created that page, you know this… you know that you did not copy the file into the page, and that the server under your control did not send that image to me. You know this, yet you claim otherwise. Goodbye.

— comment by Shangara Singh on August 7th, 2008 at 8:00pm JST (9 years, 4 months ago) comment permalink

@Shangara Singh – As Jeff has pointed out, on the dummy webpage you created the image itself hasn’t actually been copied. The image still resides on his server and is being served by his web provider.

In my mind, the only way you’re infringing on his copyright is to claim that you took the image in question. You didn’t do this.

Frankly, I really feel that images from outside sources should be properly credited with a proper link to the originating page. Do I feel that this is legally necessary? No. Not in all cases. Personally, I would credit the creator as I would wish to be credited — “that whole do onto others” thing.

I’ll end it here.

— comment by Mark on August 8th, 2008 at 3:33am JST (9 years, 4 months ago) comment permalink

As far as I know, this still falls within a legal grey area, as does most of copyright law. For example, if a site provides a bunch of links to pirated software, they can be prosecuted for contributing to copyright infringement. However, most cases have found that the web is inherently a medium designed for linking. This case is made stronger by all the ways that a server owner can prevent images from easily being linked to (referrer checks, making the image url short-lived, authentication).

Any argument about reproduction is also pretty silly. By putting an image on the web, you must expect it to be reproduced. It gets downloaded and stored on people’s computers.

— comment by Andrew S on August 16th, 2008 at 11:47am JST (9 years, 4 months ago) comment permalink

I’m not a lawyer, I’m not even good in English, but I feel that hotlinking is copyright infringment. Jeffrey is right that he and Shangara knows that the hotlinked image is not served from Shangara’s host and not even embedded really in his page. I know it as well. But there are millions of people (well educated, but not perfect in html) who thinks that Shangara is a brilliant photographer, just look at his site, which is full of really good photos.
And to make it from a different point: if someone (maybe Shangara) prints the website with hotlinked image (and probably sells it), is it infringment? Is it the same “document” as the webpage?
Which counts: the intent to mislead people or the wires the data is arriving in?
Actually, I also feel that a correct textual reference (note, caption, something that is readable near the image) of the source of the hotlinked image could make it legal.

— comment by MyName on September 29th, 2008 at 4:29pm JST (9 years, 3 months ago) comment permalink
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