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If Alice is a photographer, she takes a photo, owns the copyright and posts it on her public website, then Bob links to that photo on his public website, is he infringing on her copyright? Does it matter if the link is an <a> vs an <img>? To be clear, his server is not serving the image, only HTML that directs browsers to the image.

Alternatively, consider the following cases.

  • Clickable link to a page on Alice's site that contains the image
  • Clickable link directly to the image
  • Clickable link directly to the image with a note suggesting that users use a plugin like Hover Zoom (this allows the user to hover her mouse pointer over the link and see a preview of the image without leaving the current page)
  • Clickable link to the image and Bob makes his own plugin that changes the link into a displayed image
  • Embedding the image so that it displays on Bob's page, but is still served from Alice's server
  • Embedding the image and serving it from Bob's server

I am pretty sure that the first scenario is okay and that the last one is not, but at what point does Bob cross the line?

This question is very similar, but is more focused on iframes and does not quite address my question:

Can you be accused of hotlinking/copyright violation if you use an iframe?

What if Bob only posted a thumbnail version of the image? Is that fair use or does he have to be a search engine? If it is fair use, how much smaller does it have to bee?

Can Google legally host images for its search results without permission?

Benjamin Cuningham
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    When is it illegal? When a judge doesn't understand how links work. :P – cHao Mar 21 '18 at 18:06
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    In what way does that answer, especially the cited ruling, not answer the issues that you raise? – user6726 Mar 21 '18 at 18:17
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    @user6726 I am trying to create as granular of a scale as possible to demonstrate the minimal difference between different technical operations. The cited case is only one particular point on the scale and according to apsillers answer appears to be in "fundamental disagreement" with the other case. – Benjamin Cuningham Mar 21 '18 at 19:00
  • So you are looking for case law that specifically addresses each of your listed hypotheticals? I think the answer to your question is "we do not know for certain", because the Supreme Court has not articulated a definitive "law"; however, circuit court is superior to district court, so that kind of answers the question about which one was right (to the extent that the questions asked are comparable). – user6726 Mar 21 '18 at 19:36
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    @user6726 Possibly. Perhaps a better way of asking the question would be, "some of these are legal and some are not; why? What is the differentiating feature between two actions that are extremely similar?" Also, thank you for reminding me that without precedent, some of these specific scenarios are simply unknowable as to their legality. I really appreciate your perspective. – Benjamin Cuningham Mar 21 '18 at 21:50
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    All but one currently valid precedent holds that linking is not copying. An outlier case is currently being litigated in a circuit appellate court. Embedding can be muddier. – ohwilleke Mar 22 '18 at 05:23
  • For an EU perspective, it's basically been determined that it's exactly at that last bullet point that Bob crosses the line. – DPenner1 Nov 30 '18 at 05:04
  • By hotlinking an image, you are not actually copying or storing anything. It's the user, the visitor that is actually making the request to the server, downloading the image (locally stored in the browser), and seeing it. So I think the answer would depend on whether forcing people to infringe the copyright is legal or not. I think I might post a related question here about this. – reed Mar 27 '19 at 15:08
  • The answer with respect to copyright law is simple. The answer in the general case of all possible laws are not because one could imagine circumstances where the link is one critical element of an overall course of conduct that was illegal. – ohwilleke Aug 29 '22 at 19:00

2 Answers2

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By posting an image (or any other content) on an openly accessible page, a person such as Alice is implicitly giving permission to anyone to view or read that content, although not necessarily to make copies of it. A link from a page operated by Bob to such content is not making a copy, nor is it any other form of infringement.

However, there are other possible cases. For example, if Alice sells access to her pictures, placing them behind a paywall, so that only those who have paid have a valid ID/PW set to gain access, then if Bob provides a link that bypasses the paywall, that may well be contributory infringement (CI).

When Bob builds a business model on encouraging or facilitating infringement, that will be CI.

If Alice does not post her pictures, but Charlie gets copies and posts them without permission, a link from Bob's site to Charlie's may be CI, particularly if Bob gets per-click revenue or other benefits for increased traffic.

David Siegel
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At the time of using copyrighted material from another website or server, it must be made sure that you are using it with permission, and if you are using it without permission it is crucial to provide image credits to the original website.

Also, when you are giving a clickable link to the image on Bob’s server from Alice’s server, it is actually profitable for Alice. This will aid in boosting the traffic on Alice’s server. Bob cannot link the copyrighted material if there is a specific instruction given on Alice’s server that a foreign user cannot use the image or any other content to link from the server.

Check for specific instructions given for the use of the content. In the given scenarios, some of the ways are acceptable and legal.

  • Clickable link to a page on Alice's site that contains the image: Completely legal and acceptable
  • Clickable link directly to the image: Legal and acceptable.
  • Clickable link directly to the image with a note suggesting that users use a plugin like Hover Zoom: Legal and acceptable.
  • Clickable link to the image and Bob makes his own plugin that changes the link into a displayed image: Legal and not always acceptable
  • Embedding the image so that it displays on Bob's page, but is still served from Alice's server: Legal, acceptable if allowed by the owner
  • Embedding the image and serving it from Bob's server: Illegal and unacceptable.
Pat W.
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Mugdha Pardesi
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  • "Also, when you are giving a clickable link to the image on Bob’s server from Alice’s server, it is actually profitable for Alice." It's not directly profitable; more traffic means more expense. Only if Alice can monetize this traffic, such as serving ads, is it profitable. – Acccumulation Jun 25 '19 at 15:05
  • Also, your wording is confusing. "clickable link to the image on Bob’s server" makes it sound like the image is on Bob's server, when presumably you mean that the link is on Bob's server. Assuming I understand what you mean correctly, "a clickable link on Bob’s server to the image on Alice’s server" would be clearer. There are other similar issues with your wording in your answer. – Acccumulation Jun 25 '19 at 15:05