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I have a website about tourist attractions all around the world and we use automatic geolocation based searches in Flickr/Panoramio/Foursquare/500px photo bases using their public APIs. To filter out private data we use mandatory parameter "public only".

So, the question is: is it legal to display such search results on our pages or not? Say, in accordance with the terms of Flickr (http://www.flickr.com/services/api/tos/) and Panoramio (http://www.panoramio.com/api/data/terms.html) API usage -- any person or company that uses its API can use the images found by it in non-commercial goal while linking back to Flickr/Panoramio.

If your answer is "no" then why and how do Google, Yahoo and other search engines display search results in services like Google Images? And Facebook and other social networks displays such images in Share posts?

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  • It seems unlikely that your website is non-commercial; is it? Are you making money from it?
    – phoog
    Feb 9, 2016 at 16:17
  • @phoog I guess that it would count as "commercial" even though we never have any profit from it as we don't cover expenses on server/domain/CDN/etc. with advertisement. But who care, right? :) It's a website with open community, all information (except those images from automatic searches, obviously) is provided under Creative Commons Attribution/Share-Alike.
    – WASD42
    Feb 9, 2016 at 21:33
  • Something marked as "public only" may be: 1. Made freely available by the copyright holder. 2. Marked incorrectly by the copyright holder. 3. Marked incorrectly by someone who is not the copyright holder. In cases 2 and 3 you could be asked to remove the material (and not put it back up again obviously). In case 2 it would be very hard to claim damages, in case 3 it would be possible.
    – gnasher729
    Jun 4, 2021 at 8:50

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In general, linking to a URL found by a search, and displaying a "thumbnail" image of that result has been held to be lawful under US copyright law, on the ground that such use is transformative and of public benefit. This is how search engines are allowed to display images in a much reduced format with their results.

The current (as of July 2021) Flickr Terms say: "If the primary purpose of your application is to derive revenue, it is considered a commercial application." They do not currently say anything about permission nto display search results, it seems that they have changed since this question was written.

In any case, it is unfortunately common for people to upload to Flickr and similar sites images which they did not create and do not own the rights to, and describe these as "public" or some other permissive tag without proper authority to do so. Any app displaying images obtained from Flickr or any similar sites must have a reasonable process to respond to copyright claims. Proper implementation of the DMCA takedown procedure might suffice. A prominent notice of the available procedure to make copyright claims, what ever it is, would be a very good idea.

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  • DMCA has little to do with it (you are copying the image, not a user of your site) unless you're merely hoping that someone will submit a takedown request and not sue you.
    – D M
    Jul 24, 2021 at 19:09
  • @D M If one uses an image posted publicly under a purported free license, reliance on that license is not irrational. If combined with an expressed willingness to honor any claims that are made alleging that the license is not authorized, it will be harder for a copyright owner to win any substantial damages. A degree of due diligence to verify the license claim might be advisable.
    – David Siegel
    Dec 21, 2021 at 17:15
  • I do agree that it's not irrational, but it's not really a total defense either. Innocent infringement does have lower statutory damages, so that might help in such a situation, but if they go after actual damages... well, that's going to depend on what the actual damages are. At least they won't get punitive damages, I guess?
    – D M
    Dec 22, 2021 at 20:04
  • @D M as I understand it, US copyright law does not provide for punitive damages. The same purpose is served, to some extent, by the possibility of a court imposing high statutory damages.
    – David Siegel
    Dec 22, 2021 at 20:46
  • A search turned up a scholarly paper that says "The U.S. Copyright Act does not provide for punitive damages per se to be awarded in cases of copyright infringement; however, in recent years a debate has arisen as to whether punitive damages may be awarded in addition to actual damages and profits under the Copyright Act... The statute is silent with regard to punitive damages but some experts have suggested that the silence does not necessarily mean that punitive damages are completely precluded by the Act." Not sure whether that argument is valid or not.
    – D M
    Dec 22, 2021 at 21:38

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