A new wrinkle has recently appeared in the legal landscape surrounding Google’s Google Books project. While the parties to the authors’ and publishers’ lawsuit await a court decision on approval of their proposed settlement, a different group of plaintiffs has filed a new class action lawsuit against Google on behalf of photographers, visual artists, and other copyright owners whose pictorial works appear in the books and periodicals included in the Google Books project.
The named plaintiffs in the new case include the American Society of Media Photographers, the Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photography Association, and Professional Photographers of America, along with several individual photographers and illustrators whose works are included in books within the university library collections Google has scanned for inclusion in Google Books.
Many of the same plaintiffs previously moved to intervene in the main Google Books lawsuit, but Judge Denny Chin denied the motion as untimely. In an order issued November 4, 2009, denying the would-be intervenors’ motion to reconsider, the Court stated that intervention could upset “thousands of hours of discussion, compromise, and legal draftsmanship” underlying the proposed settlement and concluded that “[f]rom the perspectives of fairness and efficiency, it makes more sense for the movants to file their own lawsuit than to be permitted to delay this lawsuit.”
The visual artists have now done exactly that, filing their complaint in the Southern District of New York on April 7, 2010. The complaint alleges that Google Books represents “the most widespread, well-publicized, and uncompensated infringement of exclusive rights in images in the history of book and periodical publishing” and seeks monetary damages for willful infringement of copyright, a declaratory judgment, and preliminary and permanent injunctions. Google has yet to file an appearance of counsel in the suit.
The filing of a lawsuit relating to copyrights in visual works draws attention to the fact that the long-pending authors’ and publishers’ lawsuit, now apparently close to resolution, applies only to textual materials and excludes pictorial works. In Judge Chin’s view, “in the context of an online database that is searchable using keywords, it makes sense to prioritize the rights to word-based material.” Nevertheless, it now appears that even if the main Google Books settlement is approved, Google may find that it faces further hurdles before the legal status of the Google Books project is fully resolved.
Those interested in further details can read Judge Chin’s order denying intervention (PDF), the full text of the new class action complaint (PDF), and the press releases of the various associational plaintiffs, including the American Society of Media Photographers and the Graphic Artists Guild.