A federal appellate court has considered whether a website violated a photographer's copyright in its creation of "thumbnail shots" of the photographer's works and also by framing the full-sized image of the works.
Arriba Soft Corporation operated a website which contained an Internet search engine ("Website"). The Website returned search results with small "thumbnail shots" of images found on the Internet. This information was gathered by the Website's webcrawler program which would find images on the Internet, download the images onto the Website's servers, reduce the images to a thumbnail size, and then discard the full-size images from the Website's server. From January through June 1999, when the user clicked on the thumbnail image the user would be sent to a page which contained the original full-size image imported from the original web page, surrounded by information about the file's size, a link to the original website, and also advertising from the Website. This process (importing a full-size image from another website) is known as "inline linking." From July 1999 to August 2000, a user would receive search results containing a thumbnail shot with two links underneath the thumbnail shot. The "Details" link would produce a thumbnail sketch of the page surrounded by information about the file's size, a link to the original website, and also advertising from the Website. The "Source" link would create two new windows on top of the existing page. The first window, appearing in the forefront, would contain the full-size image imported from the original website. The second window, appearing in the background, would contain the original website page from which the image was drawn. This process is known as "framing," which is the pulling of an image from another website into a frame on the primary site's page.
Leslie Kelly ("Photographer") is a professional photographer who has copyrighted his photographs of western America. Some of the photographs appear on his website, others appear on websites which had received a license to use the images from the Photographer. In January 1999, the Website copied some of the Photographer's works into its database without the Photographer's permission. When the Photographer objected to the Website's use of his works, the Website removed the pictures obtained from the Photographer's website and placed the Photographer's website on a list of sites on which its program would not "crawl." When the Photographer discovered that some of his works were still appearing on the Website after being downloaded from the licensed third-party sites, the Photographer filed a lawsuit against the Website for copyright infringement. The trial court ruled in favor of the Website, and the Photographer appealed.
The United States Court of Appeals, Ninth Circuit, partially reversed and partially affirmed the rulings of the trial court. The court stated there were two issues before it: first, whether the creation of thumbnail shots of copyrighted images constituted copyright infringement; and second, whether the framing of full-size copyrighted images imported from other websites constituted copyright infringement.
To bring a lawsuit for copyright infringement, individuals must first show that they hold a copyright on works which were copied by another party. The Photographer met this requirement, and so the court had to next determine if the "fair use" exception found in the federal Copyright Act permitted the Website's copying of the Photographer's works. The Copyright Act sets forth four factors to evaluate in determining whether a copying constitutes "fair use:" first, the purpose and character of the use, including whether the use is for commercial purposes or is for nonprofit educational purposes; second, the nature of the copyrighted work; third, the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and finally, the effect of the use upon the potential market for, or value of, the copyrighted work.
The court first looked to see whether the creation of the thumbnail shots of the Photographer's copyrighted works constituted a "fair use." Applying the first factor, the court found that the use of the images by the Website had very limited commercial purpose, since the Website was not trying to profit from the use of the images. The court also found that the creation of thumbnail shots was transformative, because it was using the smaller images for purposes of displaying search results. This reduction made it unlikely that anyone would use the thumbnail images for any other purpose, since enlargement of the thumbnail images would cause the image to become distorted. Therefore, anyone who was interested in the full-size image would still need to download the original. Thus, the court found that the first factor favored the Website.
The court found that the second factor, which considers the nature of the work, favored the Photographer, since photographs are the type of creative works that the Copyright Act is designed to protect. Looking the third factor (amount of copyrighted work used), the court found that the Website's copying of the work did not favor either party because, even though the Website did copy the entire image, it used the image in a manner which still required the user to seek out the original image. Finally, the transforming of the images into thumbnail shots did not harm the market for the Photographer's works and so favored the Website. The court found that two of the four factors favored the Website, one favored the Photographers, and one factor was neutral. Therefore, the court ruled that the Website's the creation of thumbnail shots constituted a fair use of the Photographer's works and affirmed the trial court's ruling in favor of the Website on the issue of the thumbnail shots.
The court next considered whether the framing of full-size copyrighted images imported from other websites was a "fair use" of the Photographer's works. Applying the factors for determining whether a copying was a "fair use," the court found that the first factor favored the Photographer, since the Website was directly importing the full-size images to its website. Unlike the thumbnail shots, the importing of the full-size images allowed users to download the full-size images from the Website, rather than visiting the original website. The second factor favored the Photographer, since photographs are creative works which receive protection under the Copyright Act. The third step also favored the Photographer, since the importing of the full-size image was not a reasonable or legitimate use of the Photographer's copyrighted works. Finally, the court found that the fourth factor favored the Photographer, as the importation of the full-size image harmed the Photographer's market for his photographs, since a user did not need to visit the original website to download the image. Since all of the factors favored the Photographer, the court ruled that the framing of the Photographer's images constituted copyright infringement. Thus, the trial court was reversed on the framing issue but affirmed on the issue of the thumbnail shots.
Kelly v. Arriba Soft Corp., 280 F. 3d 934 (9th Cir. 2002).