Kelly v. Arriba Soft Corp. (2003)

“Using thumbnails in search engines to locate copyrighted images can be fair if it’s transformative and non-substitutive.”

Short Description :

The court held that displaying thumbnails of copyrighted images for an image search engine constitutes transformative fair use, even if the images themselves are copyrighted, as the use serves a new purpose without harming the market for originals.

Facts :

Kelly, a professional photographer, owned copyright for numerous images displayed on her website. Arriba Soft, an image search engine, created thumbnail versions of Kelly’s images without permission. These thumbnails were displayed in search results, allowing users to quickly find images and click through to original sources. Kelly sued, claiming copyright infringement and loss of licensing revenue.

Findings / Reasoning :

The Ninth Circuit analyzed the four fair use factors:

⦁ Purpose and character: Displaying thumbnails is transformative; it allows indexing and searching, a purpose different from the original display.

⦁ Nature of the work: Original photographs are creative; still, the societal benefit of search outweighs this factor.

⦁ Amount and substantiality: Only thumbnails (small, low-resolution) were used, not the full images.

⦁ Effect on market: Users still had to visit the original site for full images, so market harm was minimal.

The court ruled that Arriba Soft’s use was transformative fair use, supporting efficient image searching without substituting the originals.

Suggestions / Observations :

Search engines can use copyrighted material responsibly for indexing or preview purposes. Thumbnail use is a widely accepted method to balance copyright protection with public access to information. Copyright owners should focus on market substitution rather than incidental use.

Judgment & Date :

Judgment in favor of Arriba Soft Corp.; use qualified as fair use.

Date : December 16, 2003.