• by Wendy Davis , Staff Writer @wendyndavis, April 7, 2010

Google has been hit with another lawsuit stemming from its book digitization project, this time by the American Society of Media Photographers and other trade groups.

In a lawsuit filed in the U.S. District Court in New York, they allege that Google's "reproduction, distribution, and public display of the visual works" contained in books and periodicals infringes copyright. The photographers seek monetary damages and an injunction banning Google from making any further copies.

Of course, this isn't the first time Google has been sued for its book digitization initiative. The company is still dealing with a lawsuit filed in 2005 by authors and publishers. The parties in that case arrived at a controversial $125 million settlement -- which calls for Google to fund a new book rights registry and sell downloads of books at prices that it sets with the registry -- but it's not at all clear that the court will approve of the deal.

Amazon and other companies, as well as consumer advocates, argue that the settlement will give Google an unfair advantage because it allows the company to publish orphan works -- books under copyright whose owners can't be located -- without fear of liability. Other potential publishers of such books would continue to face copyright damages of up to $150,000 per infringement.

When Google was first sued by authors and publishers, many observers expected the company to argue that digitizing books and making snippets available was a fair use. Instead, the parties pursued a settlement, which left the legal issue unresolved.

Whether the lawsuit by visual artists can be resolved remains unknown. But if it goes forward, the case could finally force a decision about what constitutes fair use in the age of search engines.

New York Law School professor James Grimmelmann, who has followed the book search litigation closer than anyone, says on his blog that Google probably has made fair use of the images.

But, he says, the issue isn't clear-cut. Grimmelmann says this case appears different from the one brought by authors and publishers because Google allegedly is only copying pictures, not indexing or displaying them. If Google doesn't display the images it allegedly copied, then the company isn't in any way affecting photographers' ability to exclusively sell those images -- which is one factor that would weigh in Google's favor in a fair use analysis. At the same time, Grimmelmann says, Google also has a harder time arguing that its copies of images are "transformative" -- another factor that goes into fair use decisions -- because the company isn't making them searchable.