In 2007 the Ninth Circuit decided Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, and answered two questions that still govern image disputes online. First, a search engine's low-resolution thumbnails are fair use, the index does not need the photographer's permission to shrink and show a picture in results. Second, the court adopted what practitioners now call the server test: the party whose server stores the image file is the one who displays it under the Copyright Act, and a site that merely links to a copy stored elsewhere does not directly infringe.

The split that follows is blunt. Google survived because it indexed; the websites that actually hosted Perfect 10's photographs were the infringers. If a scraper has copied your images onto its own server, this case explains exactly why that site is liable while the search engine showing its results is not, and it hands you a working method for acting on the difference.

The Fight Over Google Image Search and Amazon's A9 Results

Perfect 10 was an adult entertainment company, a magazine plus a subscription website built around copyrighted photographs. It also ran a licensing business, selling thumbnail-size versions of its images to a mobile content company, Fonestarz, for cell-phone downloads. Small images suited small screens, and that licensing market ended up carrying more weight in the litigation than anything else.

Google Image Search did two separate things. It crawled the web, created reduced-size thumbnails, and stored those copies on Google's own servers. When a user clicked a result, Google used inline links, or a framing feature that kept its header on the page, to pull the full-size photograph from the website hosting it. The full-size file never left that host's server. Amazon got pulled in because its A9 search site licensed Google's image results. That is a completely different posture from a marketplace seller lifting a competitor's listing photos, a situation we cover separately in our Amazon and eBay copyright infringement guide.

Perfect 10 sent DMCA notices, sued, and in 2006 won a preliminary injunction from the Central District of California against the thumbnails, on the theory that small, phone-sized images could substitute for its cell-phone licensing market. The district court declined to block the inline linking, and each side appealed what it lost. The Ninth Circuit took the consolidated case in 2007 and split the result in a way that still defines the field.

Why Search Thumbnails Qualified as Fair Use

The appeals court analyzed the thumbnails under the four factors of 17 U.S.C. § 107, leaning on an earlier Ninth Circuit thumbnail case, Kelly v. Arriba Soft Corp. (2003), whose odd procedural history meant the panel treated its reasoning as persuasive rather than binding.

  • Purpose and character. The court found the search use highly transformative. Perfect 10 displayed photographs to entertain and sell subscriptions; Google used thumbnails to help users find information. Invoking Campbell v. Acuff-Rose, the court stressed that the more transformative the use, the less weight market harm carries. Advertising on results pages did not change the answer.
  • Nature of the work. Creative photographs weigh against fair use, but the court gave this factor little weight.
  • Amount used. Google copied the whole image, but a thumbnail has to be complete to be recognizable, and the resolution drop sharply limited its value as a substitute.
  • Market effect. The district court had credited harm to the Fonestarz phone-download market. The Ninth Circuit found the record thin, nothing showed users would save Google's thumbnails for their phones, and noted Google's income came from advertising generally, not from selling these images.

On balance, the thumbnails were likely fair use. The injunction came down, and Amazon's A9 displays were freed along with Google's index. The same transformative-search logic later carried Google Books past the Authors Guild, and it still does most of the work when a court is asked about indexing today.

The Server Test: Whoever Stores the Copy Displays It

The Copyright Act gives owners the exclusive right to display their works publicly, 17 U.S.C. § 106(5). Under § 101, to display means to show a copy, directly or by any device or process, and a copy is something fixed in a tangible medium for more than a transitory duration. Stack those definitions on top of an inline-linked image and you get the central question of the case: when a browser shows a photograph, who showed it?

The Ninth Circuit's answer became the server test. Google's servers held HTML containing links, not the photographs. The visitor's browser fetched the file from the third-party website's server, so the host website performed the display. Google sat in the position of a card catalog pointing to the shelf. The court applied the same logic to the distribution right: the copy traveled from the host to the viewer's browser and never passed through Google.

For enforcement, the test has teeth. The party whose server holds the file is your direct-infringement target, so a takedown starts by confirming where the copy actually lives. When the page URL hides the host, a host lookup is the first move, not the last.

Secondary Liability and the Safe Harbor Aftermath

No direct infringement did not mean no exposure. The court sent back a question the district court had not resolved: whether Google could be contributorily liable by materially contributing to the host websites' infringing displays while knowing about them. The comparison that frames that analysis is Napster, where the Ninth Circuit in 2001 affirmed liability because the service was the engine of the infringement itself, the lessons from Napster's shutdown still draw the boundary between those two postures. Vicarious liability failed on its elements. Google had no right or ability to control sites it did not host, and its ad revenue was not a direct financial benefit tied to particular infringing images.

The litigation then ground on for years, and Google won the rest of it. The district court ruled for Google on the remaining claims, and in 2011 the Ninth Circuit affirmed, accepting that Google's image search fit inside the DMCA safe harbors, the § 512 framework protecting providers that respond properly to takedown notices. Google had a record of processing notices, and that record mattered to the ending. A site that ignores notices never builds one.

Why Search Engines Survive and Scrapers Do Not

Cited on its own, the case is about search thumbnails. Its real value is the contrast it draws, because search engines and image thieves look alike from a distance, both put other people's pictures in front of visitors. The court separated them on four details:

  • Purpose. Organizing content so users can locate it is transformative. Republishing a photo so visitors consume it instead of visiting the owner is substitutive.
  • Form. A reduced-resolution thumbnail does not replace the original. A full-size copy does.
  • Location. Linking to a copy on someone else's server avoids the display right under the server test. Copying the file to your own server is a reproduction, a display, and often a distribution in one.
  • Conduct. A provider that honors DMCA notices builds a safe harbor record. A scraper that ignores them builds a lawsuit.

Most scrapers fail all four at once: full-size files, hosted on their own servers, republished for traffic, notices ignored. Commercial intent was not what beat Perfect 10 against Google, the ads on results pages did not sink fair use. What made the host sites liable was that they displayed the actual copies. When a site calls itself a search engine or an aggregator but the image file sits on its own domain, the server test tells you exactly how to test that claim. And where a service exists to promote infringement, the index-and-link posture stops helping, because the inducement rule from Grokster reaches services built around piracy.

What the Case Means When Someone Copies Your Photos

Run the logic on a live problem. A website copies your full-size photographs onto its server and runs them to attract visitors. That site is the server-test defendant: it reproduced the images, it displays them publicly, and the fair use factors cut against it because its pages substitute for your site or your licensing. Your path is the one that worked against Perfect 10's host sites. Confirm the hosting behind the domain with a website detective lookup, and assemble proof that you own the work before anything else.

Then send the DMCA notice to the host's registered agent, and request removal of the infringing URLs from Google search so the copies lose traffic while the host decides what to do. Our guide to stolen photos covers the notice itself, and the DMCA process for photographers adds tools many photographers do not know they have.

Hotlinking is the mirror case. Someone embeds your image while the file stays on your server, so under the Ninth Circuit's rule your server performs the display and the embedder may not be a direct infringer. There the fixes are technical and commercial, hotlink protection, watermarking, a report to the embedder's platform, rather than a display-right claim.

The Server Test Today, and the Risk of Filing the Wrong Notice

The server test remains the rule in the Ninth Circuit, home to most major US platforms, and other courts have followed it; the Seventh Circuit applied the same reasoning to video embedding in Flava Works v. myVidster (2012). The strongest challenge came from New York, where a federal district court held in 2018, in the Goldman case over photos embedded from Twitter, that outlets embedding a photographer's images could infringe the display right and that the server test was wrong. The Second Circuit reversed in 2021, but on fair use grounds, leaving the embed question unsettled outside the Ninth Circuit. If your dispute lands in another circuit, the direct-infringement theory for embeds is genuinely open.

Foreign law is a different frame. EU courts analyze linking under a communication-to-the-public doctrine rather than a hosting test, and the EU Court of Justice held in Svensson (2014) that linking to content already freely available is not a new communication unless it reaches a new audience or circumvents restrictions. This page assumes US law; if the copy sits abroad, check which rule governs before assuming the server test travels. Platform policy layers on top of all of it, Google removes infringing pages from its results on a valid notice regardless of who hosts the file, a remedy that moves faster than any display-right analysis.

Filing against the wrong target has a price. The Ninth Circuit's 2016 Lenz decision, the dancing baby case, requires notice senders to consider fair use before filing. A demand that a search engine stop thumbnailing your images presses on a use the courts have treated as fair since 2007, and 17 U.S.C. § 512(f) imposes liability for knowingly misrepresenting infringement, the exposure confirmed against copyright owners in Rossi v. MPAA. When the analysis is uncertain, pause before filing. The workable line: a thumbnail in an index is fair-use territory; the page it points to is your target.

Frequently Asked Questions About Perfect 10 v. Amazon

Are image-search thumbnails of my photos copyright infringement?

Usually not. Under Perfect 10 v. Amazon, low-resolution thumbnails that help users locate images are generally fair use. The analysis is fact-specific, and a thumbnail used to replace downloads of your work could weigh differently, but courts have applied this holding to search indexes consistently since 2007. The full-size copy on the infringing page is the actionable target.

What is the server test in copyright law?

A Ninth Circuit rule from Perfect 10 v. Amazon: a party violates the public display right only when the copy it shows is stored on its own server. A site that supplies an inline link sends instructions to the viewer's browser; the host holding the file performs the display. The test determines who your takedown targets, the host, not the linker.

Can I send Google a DMCA notice for images hosted on another site?

Yes, but with the right ask. Google is not the host under the server test, so a notice cannot force its index to stop thumbnailing. Google will, however, delist infringing pages from search results on a valid notice, which cuts the copy's traffic. The durable fix is a notice to the host that stores the file.

Does the server test apply outside the Ninth Circuit?

Directly, no, it is Ninth Circuit law that other courts have often followed, including the Seventh Circuit in a video-linking case. A New York district court rejected it for embeds in 2018, and the Second Circuit's 2021 reversal avoided the question by deciding the case on fair use. Outside the Ninth Circuit, embedding disputes remain unsettled.

Someone embedded my photo with an inline link, can I get it removed?

Often, yes, just not by attacking the embed alone. Under the server test, the embedder may not directly infringe while your file stays on your server or the host's. Identify where the file lives, notice the host, delist the page from search, and use hotlink protection or watermarks for the technical side. Platform policies frequently help as well.

If a Scraper Copied Your Images, Work the Case in This Order

Perfect 10 lost to the search engines and beat the hosts because the law rewards precision about where a copy lives. Apply that precision to your situation:

  1. Locate the file. Open the image and read its URL. If the copy sits on the infringer's own domain, the server test gives you a direct-infringement claim against that site.
  2. Document ownership. Registration, originals with metadata, and dated publication build the record; a takedown evidence checklist keeps it organized.
  3. Notice the host. File the takedown yourself or hand it to a service; the recipient is the host's registered DMCA agent, not the search engine.
  4. Delist the pages. Ask the search engines to remove the infringing URLs so the traffic stops regardless of how the host responds.
  5. Escalate if ignored. Follow the copyright removal escalation ladder, registrar, advertisers, upstream providers, and know when to hire a copyright lawyer or a professional takedown service. When a host is anonymous, offshore, or ignores notices outright, that is the point where experienced help earns its fee.