Image Search Technology Raises New Copyright Questions
Law360 (September 1, 2026, 3:06 PM EDT) -- When Pool World was accused of copyright infringement over a photograph that had been on its website for years, the Washington-based seller of pools, spas and grills had a predicament.While the business believed the image had been licensed, the employee who built the site was long gone and records showing how the image was obtained could no longer be found. The stock photo of vegetable skewers cooking on a grill was still online, however, and still discoverable.
Pool World's conundrum illustrates a copyright law dilemma that has been brought into sharper focus since reverse-image search technology became widely available over the past 15 years. Reverse-image tools such as Google Lens and TinEye, along with monitoring services including ImageRights and Pixsy, can identify alleged infringement years after an image appears online, when witnesses and licensing records may be unavailable or lost. Meanwhile, federal courts have long applied a judicially created "discovery rule" that can delay copyright's three-year limitations period until a rights owner discovers, or reasonably should have discovered, the infringement.
That asymmetry raises the question of when the ability to find alleged infringement becomes an obligation for copyright owners to look for it. Courts have confronted pieces of that question, though no clear rule has emerged tying a copyright owner's diligence obligations to available search technology.
Tyler Ochoa, a professor at Santa Clara University School of Law, said advances in detection technology are likely to affect that analysis because the legal standard is not static.
"A reasonableness standard by definition changes over time. Different societies, different time periods will have different views as to what is reasonable," he said.
The technology also cuts both ways. Defense attorneys say old online uses can force businesses to reconstruct licensing decisions after employees and records are gone. Rights holders and monitoring companies counter that even powerful systems miss vast amounts of the internet, making a broad duty to police it unrealistic.
What Technology Can Find
Even sophisticated copyright monitoring systems search only portions of the internet, leaving many potentially infringing uses beyond their reach.
"You could have the best technology conceivable, and there's no way you're going to find more than just a tiny fraction," said Joe Naylor, founder and CEO of ImageRights International Inc., which monitors online image uses for photographers and other rights holders. "Even Google doesn't index every image."
ImageRights uses crawlers and image-matching tools to search selected websites and compare results against clients' photographs, Naylor said. Clients identify authorized uses, and ImageRights assesses the remaining matches before recommending whether to pursue them, he said.
ImageRights sometimes finds photographs that have been online for 10 years or longer, particularly for new clients or on previously unsearched sites with archived material, Naylor said, adding that such sightings are a minority of its results and have not become more common.
Searching has actually become harder as artificial intelligence web crawling has prompted stronger anti-bot controls, and ImageRights is replacing its legacy crawler system in response, Naylor said.
Detection can establish when ImageRights first found an image, but not when the challenged use began. That distinction matters because the discovery rule turns on when the copyright owner discovered the infringement or reasonably should have discovered it, the latter known as constructive discovery.
Even major rights holders using monitoring services can miss a particular use when it first appears, Naylor said.
"So if that's somebody that's an agency using a service — they're seasoned, they know how it all works — if they're not finding stuff, then what's the regular rights holder supposed to do?" Naylor said.
When Owners Should Have Known
Court decisions over the last few years have generally resisted turning reasonable diligence into a continuing duty to monitor the internet. Instead, courts generally look for circumstances that should have prompted a copyright owner to investigate and ask when reasonable diligence would have uncovered the particular infringement.
In 2024, the Second Circuit rejected a heightened discovery standard for experienced infringement plaintiffs, saying there was no "sophisticated plaintiff" exception to the rule. And in a 2023 Florida case, a federal court found an aerial photography company acted reasonably by conducting annual reverse-image searches even though they missed the allegedly infringing use for years.
But this year, the Second Circuit held that constructive discovery can still bar a claim. In a case involving artist Jeff Koons' decades-old use of another artist's work, the court said the passage of time and a copyright owner's sophistication alone were insufficient to establish that the claim was time-barred, but decades of widespread publicity surrounding the challenged work supported a conclusion that the alleged infringement should have been discovered earlier.
Ochoa said once an owner has reason to suspect infringement, diligence may require reasonably available search tools at a reasonable cost, but not constant monitoring.
"You don't have a duty to consistently monitor for infringements, and at least at this stage of the technology, that strikes me that it makes sense," Ochoa said.
Defense attorney Rodrick Enns of Enns & Archer LLP, who wrote about the issue this year for The Trademark Reporter, argues that the growing availability of search technology should push courts to put more weight on whether copyright owners use those tools when assessing reasonable diligence.
"Courts should be saying: 'These tools are available. If you haven't chosen to use them when they're available and economical, that's a lack of diligence,'" Enns told Law360.
John Tehranian of One LLP, who represents copyright owners, similarly said the limitations of monitoring technology make a continuous search obligation inappropriate.
"Such a tack not only ignores the serious limitations of detection technologies but also threatens to reverse the burden of copyright compliance from infringers to rights holders," he said in written comments to Law360.
Courts' current approach rests on a doctrine with an unusual pedigree.
The Copyright Act says only that a civil action must be filed within three years after a claim "accrued." Ochoa said the discovery rule was historically a "rare and unusual exception," but within a few decades, lower federal courts had made it the default rule of accrual.
The U.S. Supreme Court has never decided whether the rule actually applies under the Copyright Act. In 2014, the justices said in Petrella v. Metro-Goldwyn-Mayer Inc. that infringement ordinarily accrues when the infringing act occurs but left the discovery rule unresolved. A decade later in Warner Chappell Music Inc. v. Nealy, the high court assumed the rule applied without deciding whether it was valid.
The court nevertheless held that when a claim is timely under the discovery rule, the Copyright Act does not impose a separate three-year limit on how far back the plaintiff may recover damages. Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito in dissent, wrote that the Copyright Act "almost certainly does not tolerate a discovery rule." But after Nealy, the high court declined review of two petitions challenging the discovery rule.
When the Proof Is Gone
By the time Pool World's case ended, the plaintiff made a payment to bring the suit to a close.
Prepared Food Photos Inc., a Florida stock-photo company with roughly 18,000 food images, sued Pool World in 2023 in Washington federal court over a grilled vegetable photograph posted to its website in 2010. PFP filed approximately 250 copyright lawsuits from 2021 through 2023, and its counsel said it had handled about 1,800 infringement matters for the company through the end of that period, according to declarations filed in the case.
Pool World's defense centered on how difficult the licensing history had become to reconstruct and whether PFP should have discovered the use sooner. PFP said it had manually reverse-image searched each photograph in its library six or seven times annually since at least 2017, while also using outside monitoring services, but did not find Pool World's use until May 2022.
Hundreds of licenses to the photograph had been sold through iStock, owned by Getty Images, whose licensing terms in the record allowed customers in some circumstances to provide images to clients. PFP said Getty had no record of issuing Pool World a license directly, but Getty also told PFP that an agency or designer could have licensed the use.
Paul Levy, a former Public Citizen attorney who represented Pool World pro bono, said the company's position was that given the age of the alleged infringement, "the burden ought to shift to PFP to make a showing of no license."
"And they also did not retain records of licensing," he added.
Counsel for PFP did not respond to requests for comment.
PFP tried to dismiss the suit without prejudice in 2024, arguing in part that Pool World's pro bono lawyers were using the case to wage a "veritable crusade" against the company's enforcement practices, according to its voluntary dismissal motion.
U.S. District Judge Thomas O. Rice denied the motion, finding that dismissal could deprive Pool World of an opportunity to seek attorney fees. Pool World eventually sought summary judgment on limitations, but before Judge Rice ruled, PFP agreed to pay Pool World an undisclosed amount and dismiss the case with prejudice in September 2025.
"I think they got to the point where they realized they weren't going to get any money out of it," Levy said. "And there was some risk that they would get a decision that would cause problems for their litigation."
Rights holder attorneys dispute that the evidentiary problem runs only one way. Tehranian said the passage of time also can make it harder for plaintiffs to establish infringement or willfulness, while inexpensive digital storage has made it easier for businesses to retain licensing records.
"If businesses can afford the server and bandwidth costs of keeping up old materials (which they do so that they can continue to monetize their old content), they can incur the comparatively lower cost of keeping licensing records," Tehranian said in written remarks.
Enns said one possible compromise would preserve a copyright owner's ability to seek removal of unauthorized material while imposing a firmer time limit on monetary recovery.
"There's a point at which the compromise of the defendant's ability to defend outweighs your right to get monetary relief," Enns said.
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