Thumbnails in Search Engine Results: Copyrighted?

When searching the www for pictures, often you get the thumbnails within the search results. The Thuringian OLG Jena had to determine whether such thumbnails violate a copyright (judgment of February 2, 2008, re 2 U 319/07). In this particular case, there might be an infliction but no grounds for a cease and desist in the future.


Anne is a graphic artist. Since 2003, she has had her own domain and homepage where she published pictures of her paintings. She added on all relevant pages a copyright reference. She sued Google because she believed her copyright to be violated. Google's search results showed automatically created thumbnails of her paintings. In order to enhance her chances to be found in the Internet, she regularly optimized her presentation for search engines. Anne of course wants her homepage to be found in the Internet but she does not want her works be shown as thumbnails.

Google denies this allegation. Anyhow, this company assumes an implied acknowledgement for use can to be seen in the fact that Anne put her pictures ‘freely accessible' into the Internet. She did not implement even the simplest precautions against misuse by programming her site so that crawlers of search engines have no access to the contents she put into the Internet. On the contrary Anne regularly optimized the meta content of her site in order to better be found.

The court held that thumbnails shown in search results violate artist's copyright under §23 UrhG, i.e. the reserved right to adaption and remodeling of pictures. However, grounds for damages have been forfeited in accordance to the legal rule "venire contra factum proprium" (§242 BGB). This rule simply means that it constitutes a misuse of your rights whenever you contradict yourself in a legal interaction. In other words, you can't have your cake and eat it, too. It is considered a misuse of your rights when you optimize your site for search engines but do not want them to index your contents. This is especially true as in this case, when you literally lure the crawlers to your site.

Even though Google infringed Anne's copyright, Anne is not entitled to any damages or cease and desist


OLG Jena herewith confirms the lower court's decision - though with totally different arguments (judgment of March 15, 2007, re Az.: 3 O 1108/05).

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