"Fair Use" on the Internet: Copyright's Reproduction and Public Display Rights

CRS Report for Congress
Received through the CRS W eb
“Fair Use” on the Internet: Copyright’s
Reproduction and Public Display Rights
Legislative Attorney
American Law Division
This report s ummarizes Kelly v. A r r i b a Soft C orporation , a case construing the
scope of the C opyright Act’s public displ a y, r eproduction and fair use rights on t he
In ternet. The Ninth C ircuit Court o f Appe als considered whether “thumbnail”
depictions — small, low resolution images — of copyrighted content constituted an
infringement o f t he copyrigh t holder’s reproduction and display rights. It held that the
thumbnail reproductions displayed b y an Int ernet v isual search engine constituted a non-
infringing “fair use” of the copyrigh ted content.
Kelly v. Arriba Soft C orp 1 is a s ignificant Internet copyrigh t case arising from t he
Ni nt h C i rcui t C ourt o f Appeal s. There, t h e court addressed t he in t e r f a c e between the
public’s fair use rights and two o f a copyrigh t holder’s ex clusi v e rights — those o f
reproduction and public display.
Factual a nd Procedural Background. In Kelly, t he defendant Arriba operated
a “vi sual search engi ne” t hat al l o wed u sers t o search for an d r e t ri eve i m ages from t he
Internet . To provide this functionality, Arriba developed a computer program t hat would
“crawl ” t h e Int ernet s earch i n g f or i m ages t o i ndex . It would t hen download full-siz ed
copies of those images onto Arriba’s server and generat e l ower resol u t i o n t hum bnai l s .
Once the t humbnails were created, t he program d el et ed the full-sized origi nals from t he
Arriba altered its display format s everal ti m e s . In response t o a search query, t he
search engi ne produced a “Results” p a g e , w h i c h listed o f a number o f reduced,
“thumbnail” images. W h en a u ser would double-c lick t hese images, a full s iz ed version
of the image would appear. From J anuary 1999 to J une 1999, the full-siz ed images were
produced by “inline linking,” a p rocess t hat ret ri eved t h e ful l s i z ed-i m age from t he
original website and d isplayed it on the Arriba web p age. From J u ly 1999 until sometime
after August 2000, the results page contai ned t humbnails accompanied b y a “S ource” link

1 336 F.3d 811 (9th Cir. 2003)
Congressional Research Service ˜ The Library of Congress

and a “Det ai l s ” l i nk. The “Det ai l s ” l i n k p roduced a s eparat e s creen cont ai ni ng t h e
thumb nai l image and a link t o t he originating site. C licking the “Source” link would
produce t wo new windows o n t op of the Arri ba page. The window in th e f o r efront
contai ned t he full-siz e d image, imported directly from t he originating website.
Underneath t hat was another window displayi ng the o rigi nating web page. This t echnique
is known as framing, where an image from a second website is viewed within a frame that
is pulled i nto t he primary site’s web page. Cu rrently, when a user clicks on the t humbnail,
the user i s s ent t o t he originating s ite via an “out line” link (a link t h a t d i rect s t he user
from t he linking-site to the linked-to site).2
Arriba’ s c r a wler copied 35 of Kelly’s copyrigh ted photographs into the Arriba
database. Kelly sued Arriba for copyright i nfringem ent, complaining of Arriba’s
thumbnails, as wel l as its in-line and framing li nks. T he district court ruled that Arriba’s
use o f both t he thumbnails and t he full siz ed images was a fair u se.3 Kelly appeal ed to the
Ninth C ircuit Court o f Appeals.
The Ninth Circuit’s Decision. On appeal , t he Ninth C ircuit affirmed the district
court’s finding that the reproduction o f images t o create t he thumbnails and t heir display
by Arriba’s search engi ne was a fair use. Bu t i t reverse d t h e l o w e r court holding that
Arriba’s in-line display of the l arger image was a fair use as well. 4
Thumbnails. An o wner of a copyrigh t h as the ex clusive righ t t o reproduce copies of5
the work. To establish a claim o f copyrigh t i nfringement b y reproduction, the p laintiff
must show ownership o f t he copyrigh t and co p yi n g b y t he defendant. T here was “no
dispute t hat Kelly owned t he copyrigh t t o t he images and that Arriba copied those images.
Therefore,” t he court rul ed, “Kel l y est abl i s hed a p r i m a faci e case o f copyri gh t6
i n fri ngem ent . ”
However, a claim of copyright infringement is subject to certain stat utory ex ceptions,
i n cl udi ng t h e fai r u se ex cept i on. 7 This ex ception “permits courts to av o i d r i gi d
appl i cat i o n o f t he copyri gh t s t at u t e when, o n o ccasi on, i t woul d s t i fl e t h e v ery creat i v i t y
which t hat s tatute is designed to foster.”8
To determine whether Arriba’s use o f K elly’s images was a f ai r u s e , t he court
weighed four factors: (1) t he purpose and character of the u se, i ncluding whether s uch u se

2 Arriba Soft subsequently changed its name to “Ditto.com”.
3 K e lly v. Arriba Soft Corp., 77 F. Supp. 2d 1116 (C.D. Cal. 1999)
4 In an earlier decision subsequently withdrawn by t he Ninth Circuit Court of Appeals, it held
that the i n-line display of the l arger i mage of Kelly’s work was not a f air use and was thereforeth
infringing. See K e lly v. Arriba Soft Corp, 280 F.3d 934 (9 Cir. 2002). In its revi sed opinion,
the court determi ned t hat t he issue of i n-line linki ng had not been adequately raised by the parties
and s hould not have been decided by t he district court.
5 See 17 U.S.C. §106
6 Kelly, 336 F.3d at 817.
7 17 U.S.C. §107
8 Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1399 (9th Cir. 1997).

is of a commercial n ature o r i s for nonprofit educational purposes;9 (2) t he nature of the
copyrigh ted work; (3) t he amount and s ubstantiality of the portion used i n relation t o t he
copyrigh ted work as a whole; and (4) the effect of the u se upon the potential m arket for
or value o f t he copyrigh ted work.10
Applyi ng the first fact or to this cas e, the court noted that the “more transformative
the new work, t he less important the other fact ors, incl uding commercialism, become”11
and h el d t hat t he t hum b n a i l s were t ransform at i v e b ecause t h ey were “m uch s m al l er,
lower-resolution images t hat s erved a n entirel y d ifferent function t han Kelly’s original
images.”12 Fu rthermore, it would b e unlikely “that anyone would u se Arriba’s thumbnails
for illustrative o r aesthetic purposes because enlarging t hem s acrifices their clarity,” the
court found. 13 Thus, t he first fair u se factor weighed i n favor of Arriba.
The court h eld t hat t he second factor, t he nature of the copyrigh ted work, weighed
slight l y i n favor of Kelly because the photographs were creative i n n ature.14 The t hird
factor, t he amount and s ubstantiality of the porti o n u s ed , w as deemed not to weigh i n
either party’s favor, even t hough A rriba copied the entire image. 15
Fi nally, t h e c o u r t h eld t hat t he fourth factor, t he effect of the u se on the potential
market for o r v alue of the copyr i gh t e d work, weighed i n favor of Arriba. The fourth
factor required t he c o u r t t o c o n s ider “not only t he ex tent of market harm caused b y t he
particular actions of the alleged i nfringer, but also whether unrestricted and widespread
conduct o f t he sort engaged i n b y t he defendant ... would result i n a substantially adverse
impact on the potential m arket for the origi nal.”16 The court found that Arriba’s creation

9 T he Supreme Court has held that “the central purpose of t his i nvestigation i s t o s ee ... whether
the new work merely supersede[s] the obj ects of t he original creation, or instead adds something
new, with a f urther purpose or different character, altering the f irst with ne w e x p r e s s i on,
meaning, or me ssage ; i t a sks, in other words, whether and t o wh a t e xtent t he new work i s
transformative.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
10 17 U.S.C. § 107
11 Kelly, 330 F.3d at 818 n. 14, citing Campbell , 510 U.S. at 579.
12 Kelly, 330 F.3d at 818. While Kelly’s images were artistic works used f or illustrative purposes
and t o portray scenes from t he American West in an aesthetic manner, Ar r i ba’s use of K elly’s
images in the t humbnails was unrelated to any aes thetic purpose. Arriba’s search engi ne
functions as a t ool to help index and improve access to images on the Internet and their r elated
13 Id. at 819.
14 See i d. a t 820.
15 See i d. W hile wholesale c opying does not p r e c l u d e f a i r use per se, c opying a n e ntire work
militates against a f inding of fair use. Howeve r , the extent of permi ssible copying varies with
the purpose and character of the use. “If the s econdary user only copies as much as is necessary
for his or her i ntended use, t hen t his f actor wil l n o t w eigh against him or her.” Id.at 821.
Applyi ng this principle, the court f ound that if Arriba only c opied part of the i ma ge, i t would be
more difficult to identify it, thereby r educing t h e usefulness of the visual s earch engi ne.
T herefore, the court concluded, it was r easonable t o copy the entire i mage.
16 Id. at 821, citing Campbell , 510 U.S. at 590. See also, 3 M . N i mme r & D . N i mme r , N IMMER

and u se of the t humbnails would not harm the m arket for or value o f Kelly’s images.17
Accordingl y, on balance, the court found that the d isplay of the t humbnails was a fair use.

16 (...continued)
ON COP YRI GHT § 13.05[A][4], at 13-102.61 (1993).
17 K e lly, 330 F.3d at id. T he court emphasized t hat “Arriba’s use of K elly’s images would not
harm Kelly’s ability to sell or license his f ull-sized i mages. Arriba does not sell or lice nse its
thumbnails to other parties. Anyone who downl oaded t he thumbnails would not b e successful
selling t he full-sized i mages because of the l ow-r esolution of t he thumbnails. T here would be no
way t o view, create, or sell a clear, f ull-sized i mage without going t o K ell y’ s w e b s ites.” Id. at