displayed on the site. The defendant then modified its own web site so that small, low resolution
thumbnail images of Batesville caskets were linked to the appropriate casket pages on the
Veterans Society website. When a shopper on the defendant’s site clicked on a thumbnail image,
the shopper was linked to a much larger image on a casket page on the Veterans Society web
site, which in turn displayed the defendant’s phone number. The casket web pages on the
Veterans Society site also had a link labeled “Back to Main Gallery” that would return the
viewer to the defendant’s web site.^3091
The plaintiff contended that both the previous and the modified arrangements violated
their copyrights in the photographs in question. The defendant argued, among other things, that
the Veterans Society, as an authorized Batesville dealer, had an implied license to display the
photographs, and that in any event the use of links on the Internet could never amount to
copyright infringement. Both sides moved for summary judgment.^3092
With respect to the implied license argument, the court noted that Batesville had supplied
the photographs to the Veterans Society as an authorized dealer, and that like any other
Batesville dealer, the Veterans Society was authorized to use those photographs for at least some
purposes. Batesville argued, however, that the Veterans Society had exceeded the scope of its
implied license by posting the photographs on its web site to promote a business other than its
own. The court rejected this argument, noting that there was no evidence that Batesville had
even asked the Veterans Society to change its arrangements or had ever communicated to the
Veterans Society its internal policy that its photographs were to be used to promote only the
authorized dealer’s business to whom the photographs were supplied. Batesville could have
revoked at any time the implied license to the Veterans Society or insisted that it revise its web
site in a way that satisfied Batesville, but had not done so. Accordingly, the factual record could
lead a reasonable jury to find that the Veterans Society’s implied licensed allowed the disputed
use of the images in question, and the court ruled that neither Batesville nor the defendant was
entitled to summary judgment on the implied license defense.^3093
Turning to the defendant’s linking defense, the court rejected the defendant’s argument,
based on the Ticketmaster Corp. v. Tickets case and the Bernstein case, discussed respectively in
Sections III.D.7 and III.D.5 above, that links can never amount to a copyright violation. The
court noted that those two cases suggest that the host of a web site who establishes a link to
another site that may be interesting to the host’s web site visitors does not undertake any general
duty to police whether the linked sites contain any material infringing the copyrights of others.
Those two cases, however, did not support a sweeping per se rule that links can never give rise to
infringement.^3094
(^3091) Id. at pp. 37,694-95.
(^3092) Id. at 37,695.
(^3093) Id. at 37,697-98. The court also rejected the defendant’s argument that its use of the Batesville photographs
was a fair use. Id. at 37,698-701.
(^3094) Id. at 37,701.