## Facts

- Leslie A. Kelly, a professional photographer, owned copyrights in photographs of the American West and licensed them through his website and other online partners.
- Arriba Soft Corporation operated an image-focused internet search engine that located images on the web and presented results as small, low-resolution “thumbnail” pictures.
- Arriba’s crawler downloaded full-sized copies of images to Arriba’s servers to index them, generated thumbnails, and then deleted the full-sized copies.
- In search results, Arriba displayed Kelly’s photos as thumbnails; clicking a thumbnail allowed the user to view a larger version of the image within the context of an Arriba webpage (through framing/inline linking).
- Kelly sued for copyright infringement based on Arriba’s reproduction and display of his photographs.
- The district court granted summary judgment to Arriba, finding a prima facie case of infringement but holding Arriba’s reproduction and display were fair use under 17 U.S.C. § 107.
- Kelly appealed the fair-use ruling.

## Issues

1. Whether Arriba’s copying of Kelly’s images to create and display thumbnails in an image search engine constituted fair use under 17 U.S.C. § 107.
2. Whether Arriba’s presentation of larger versions of Kelly’s images within Arriba’s webpages (via framing/inline linking) infringed the public display right under 17 U.S.C. § 106(5) or was protected by fair use.

## Decision

- The Ninth Circuit held that Arriba’s creation and use of thumbnails in its image search engine was fair use under § 107, affirming judgment for Arriba on that part of the claim.
- The court held that Arriba’s display of larger images within Arriba’s webpage context violated Kelly’s exclusive right of public display and was not fair use.
- The court remanded for determination of damages and whether injunctive relief was warranted as to the larger-image display.

## Legal Principles

- Fair use under 17 U.S.C. § 107 is determined by balancing: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount and substantiality used, and (4) market effect.
- A use may be fair where it is transformative and functional, serving an indexing/search purpose distinct from the original expressive purpose, even if the user is commercial.
- Copying an entire work can be reasonable under factor three when necessary to achieve a legitimate transformative purpose (such as identifying and indexing images), particularly where the resulting copy is substantially reduced in size and quality.
- Market harm is less likely where the secondary use is not a substitute for the original or its legitimate licensing markets, and where it may direct users to the copyright owner’s site.
- Displaying a full or large version of a copyrighted image within the alleged infringer’s own webpage context can constitute an unauthorized public display under § 106(5) when it presents the work as part of the infringer’s site rather than merely directing users to the source.

## Conclusion

The court treated thumbnail reproduction and display by an image search engine as fair use because the thumbnails served a transformative indexing function and did not substitute for the market for full-sized photographs, but it found infringement where the search engine presented larger versions of the images within its own webpage context, violating the copyright owner’s public display right and requiring further proceedings on remedies.


Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir. 2002)