## Facts

- Leslie A. Kelly, a professional photographer, owned copyrights in photographs of the American West and licensed and sold them, including via websites.
- Arriba Soft Corp. operated an image-based Internet search engine that indexed images found on the web and presented search results as reduced-size “thumbnail” images.
- Arriba’s automated program copied images it encountered to create and store thumbnail versions; it copied and displayed thirty-five of Kelly’s images as thumbnails in search results.
- In an earlier system design, clicking a thumbnail caused a user’s browser to show a full-size image within an Arriba-framed page using inline linking/framing; the full-size image was not stored on Arriba’s servers.
- Kelly sued for copyright infringement based on (1) copying and displaying thumbnails and (2) displaying full-size images via inline linking/framing.

## Issues

1. Whether Arriba’s copying and display of Kelly’s photographs as thumbnails in an image search engine was fair use under 17 U.S.C. § 107.
2. Whether Arriba’s inline linking/framing that presented full-size images within an Arriba frame violated Kelly’s public-display right, and whether summary judgment was proper on that issue.

## Decision

- The Ninth Circuit affirmed summary judgment that Arriba’s creation and display of thumbnail images was fair use.
- The court held the thumbnail use was highly transformative because it served an indexing and search function distinct from the photographs’ artistic purpose.
- The court gave limited weight to the works’ creative nature because the photographs were published and the use was for search and identification.
- Although Arriba copied entire images, the court treated this as reasonable for the search function and not dispositive against fair use.
- The court found no meaningful market substitution or harm because thumbnails were low-resolution and not a replacement for full-size images, and could direct users to Kelly’s sites.
- The court reversed the portion of the judgment addressing the legality of the full-size image display via inline linking/framing and remanded for further proceedings.

## Legal Principles

- A commercial use may qualify as fair use when it is strongly transformative and serves a different function than the original work.
- Using copyrighted images as reduced-size thumbnails to enable search, indexing, and identification can be transformative under § 107.
- Copying an entire work does not foreclose fair use when the amount taken is reasonably necessary to achieve a legitimate transformative purpose.
- Market-effect analysis focuses on whether the secondary use substitutes for the original or harms actual or likely licensing markets; low-resolution thumbnails that are not substitutes weigh against finding market harm.
- When material issues remain regarding alleged public display through inline linking/framing of full-size images, summary judgment is not appropriate.

## Conclusion

The Ninth Circuit held that an image search engine’s copying and display of copyrighted photographs as thumbnails was fair use because the thumbnails served a transformative indexing function and did not substitute for or harm the market for the full-size images, while remanding for further proceedings on claims tied to framed display of full-size images via inline linking.


Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003)