Kelly v. Arriba Soft

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

Factual Background
In Kelly, the defendant Arriba Soft operated a “visual search engine” that allowed users to search for and retrieve images from the Internet. To provide this functionality, Arriba Soft developed a computer program that would “crawl” the Internet searching for images to index. It would then download full-sized copies of those images onto Arriba Soft’s server and generate lower resolution thumbnails. Once the thumbnails were created, the program deleted the full-sized originals from the server.

Arriba Soft altered its display format several times. In response to a search query, the search engine produced a “Results” page, which listed of a number of reduced, “thumbnail” images. When a user would double-click these images, a full-sized version of the image would appear. From January 1999 to June 1999, the full-sized images were produced by “in-line linking,” a process that retrieved the full-sized image from the original website and displayed it on the Arriba Soft Web page. From July 1999 until sometime after August 2000, the results page contained thumbnails accompanied by a “Source” link and a “Details” link. The “Details” link produced a separate screen containing the thumbnail image and a link to the originating site. Clicking the “Source” link would produce two new windows on top of the Arriba Soft page.

The window in the forefront contained the full-sized image, imported directly from the originating website. Underneath that was another window displaying the originating Web page. This technique is known as framing, where an image from a second website is viewed within a frame that is pulled into the primary site’s Web page. Currently, when a user clicks on the thumbnail, the user is sent to the originating site via a hyperlink (a link that directs the user from the linking-site to the linked-to site).2

Arriba Soft’s crawler copied 35 of Kelly’s copyrighted photographs into the Arriba Soft database. Kelly sued Arriba Soft for copyright infringement, complaining of Arriba Soft’s thumbnails, as well as its in-line and framing links.

Trial Court Decision
The district court ruled that Arriba Soft's use of both the thumbnails and the full-sized images was a fair use.3 Kelly appealed to the Ninth Circuit Court of Appeals.

Appellate Court Decision
On appeal, the Ninth Circuit affirmed the district court’s finding that the reproduction of images to create the thumbnails and their display by Arriba Soft’s search engine was a fair use.

An owner of a copyright has the exclusive right to reproduce copies of the work.5 To establish a claim of copyright infringement by reproduction, the plaintiff must show ownership of the copyright and copying by the defendant. There was “no dispute that Kelly owned the copyright to the images and that Arriba Soft copied those images. Therefore,” the court ruled, “Kelly established a prima facie case of copyright infringement.”6

However, a claim of copyright infringement is subject to certain statutory exceptions, including the fair use exception.7 This exception “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that statute is designed to foster.”8

To determine whether Arriba Soft’s use of Kelly’s images was a fair use, the court weighed four statutorily-prescribed factors:


 * (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;9
 * (2) the nature of the copyrighted work;
 * (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
 * (4) the effect of the use upon the potential market for or value of the copyrighted work.10

Applying the first factor, the court noted that the “more transformative the new work, the less important the other factors, including commercialism, become”11 and held that the thumbnails were transformative because they were “much smaller, lower-resolution images that served an entirely different function than Kelly’s original images.”12 Furthermore, it would be unlikely “that anyone would use Arriba’s thumbnails for illustrative or aesthetic purposes because enlarging them sacrifices their clarity,” the court found.13 Thus, the first fair use factor weighed in favor of Arriba Soft.

The court held that the second factor, the nature of the copyrighted work, weighed slightly in favor of Kelly because the photographs were creative in nature.14

The third factor, the amount and substantiality of the portion used, was deemed not to weigh in either party’s favor, even though Arriba Soft copied the entire image.15

Finally, the court held that the fourth factor, the effect of the use on the potential market for or value of the copyrighted work, weighed in favor of Arriba Soft. The fourth factor required the court to consider “not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant. . . would result in a substantially adverse impact on the potential market for the original.”16 The court found that Arriba Soft’s creation and use of the thumbnails would not harm the market for or value of Kelly’s images.17 Accordingly, on balance, the court found that the display of the thumbnails was a fair use.