West Case Update

Search Engine Thumbnail Image Reproductions Are Fair Use

Description Appeals court held that a search engine could display thumbnail-size images of copyrighted photographs as fair use. But display of full size images, brought up by clicking on the small image, is infringement of the copyrighted material.

Topic Cyberlaw

Key Words Copyright; Fair Use; Web Sites; Thumbnail Pictures; Search Engines

C A S E S U M M A R Y

Facts Kelly is a professional photographer who has copyrighted many of his images, some of which are on his web site, others are on web sites under a license agreement. Arriba runs an internet search engine that displays results in small (thumbnail) pictures rather than the usual text results. An Arriba user can click on the thumbnail image to see a larger version. Kelly sued to stop Arriba from displaying his copyrighted images. Arriba defended the images as fair use reproduction. The district court found for Arriba, holding that the reproduction was fair use. Kelly appealed.

Decision
Reversed in part. Arriba's use of the thumbnail images in the search engine is fair use. The use was transformative; it serves a different function than the original images and does not supplant the need for the original images. It benefits the public by enhancing Internet information gathering techniques. However, to use full-size images through inline linking and framing is not fair use. Importing the images from Kelly's site is not fair use and is infringement.

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

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Search Engine Thumbnail Image Reproductions Are Fair Use
Description	Appeals court held that a search engine could display thumbnail-size images of copyrighted photographs as fair use. But display of full size images, brought up by clicking on the small image, is infringement of the copyrighted material.
Topic	Cyberlaw
Key Words	Copyright; Fair Use; Web Sites; Thumbnail Pictures; Search Engines
C A S E S U M M A R Y
Facts	Kelly is a professional photographer who has copyrighted many of his images, some of which are on his web site, others are on web sites under a license agreement. Arriba runs an internet search engine that displays results in small (thumbnail) pictures rather than the usual text results. An Arriba user can click on the thumbnail image to see a larger version. Kelly sued to stop Arriba from displaying his copyrighted images. Arriba defended the images as fair use reproduction. The district court found for Arriba, holding that the reproduction was fair use. Kelly appealed.
Decision	Reversed in part. Arriba's use of the thumbnail images in the search engine is fair use. The use was transformative; it serves a different function than the original images and does not supplant the need for the original images. It benefits the public by enhancing Internet information gathering techniques. However, to use full-size images through inline linking and framing is not fair use. Importing the images from Kelly's site is not fair use and is infringement.
Citation	Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir., 2002)