Kelly v. Arriba Soft Corp.
| Decision Date | 06 February 2002 |
| Docket Number | No. 00-55521.,00-55521. |
| Citation | 280 F.3d 934 |
| Parties | Leslie A. KELLY, an individual, dba Les Kelly Publications, dba Les Kelly Enterprises, dba Show me the Gold, Plaintiff-Appellant, v. ARRIBA SOFT CORPORATION, An Illinois Corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Charles D. Ossola, Jule L. Sigall, David W. Leary, Jr., Arnold & Porter, Washington, DC, Steven L. Krongold, Arter & Hadden LLP, Washington, DC, for the plaintiff-appellant.
Judith B. Jennison, Perkins Coie LLP, Menlo Park, CA, for the defendant-appellee.
Victor S. Perlman, General Counsel and Managing Director, Philadelphia, PA, for Amici Curiae American Society of Media Photographers, Inc., The Authors Guild, Inc., North American Nature Photography Association, and National Music Publishers' Association.
Robert J. Bernstein, Cowan, Liebowitz & Latman, P.C., New York, NY, for Amici Curiae.
Appeal from the United States District Court for the Central District of California, Gary L. Taylor, District Judge, Presiding. D.C. No. CV-99-00560-GLT.
Before: B. FLETCHER, T.G. NELSON, and BERZON, Circuit Judges.
This case involves the application of copyright law to the vast world of the internet and internet search engines. The plaintiff, Leslie Kelly, is a professional photographer who has copyrighted many of his images of the American West. Some of these images are located on Kelly's web site or other web sites with which Kelly has a license agreement. The defendant, Arriba Soft Corp.,1 operates an internet search engine that displays its results in the form of small pictures rather than the more usual form of text. Arriba obtained its database of pictures by copying images from other web sites. By clicking on one of these small pictures, called "thumbnails," the user can then view a large version of that same picture within the context of the Arriba web page.
When Kelly discovered that his photographs were part of Arriba's search engine database, he brought a claim against Arriba for copyright infringement. The district court found that Kelly had established a prima facie case of copyright infringement based on Arriba's unauthorized reproduction and display of Kelly's works, but that this reproduction and display constituted a non-infringing "fair use" under Section 107 of the Copyright Act. Kelly appeals that decision, and we affirm in part and reverse in part. The creation and use of the thumbnails in the search engine is a fair use, but the display of the larger image is a violation of Kelly's exclusive right to publicly display his works. We remand with instructions to determine damages and the need for an injunction.
The search engine at issue in this case is unconventional in that it displays the results of a user's query as "thumbnail" images. When a user wants to search the internet for information on a certain topic, he or she types a search term into a search engine, which then produces a list of web sites that have information relating to the search term. Normally, the list of results is in text format. The Arriba search engine, however, produces its list of results as small pictures.
To provide this functionality, Arriba developed a computer program that "crawls" the web looking for images to index. This crawler downloads full-sized copies of the images onto Arriba's server. The program then uses these copies to generate smaller, lower-resolution thumbnails of the images. Once the thumbnails are created, the program deletes the full-sized originals from the server. Although a user could copy these thumbnails to his computer or disk, he cannot increase the resolution of the thumbnail; any enlargement would result in a loss of clarity of the image.
The second component of the Arriba program occurs when the user double-clicks on the thumbnail. From January 1999 to June 1999, clicking on the thumbnail produced the "Images Attributes" page. This page contained the original full-sized image imported directly from the originating web site, along with text describing the size of the image, a link to the originating web site, the Arriba banner, and Arriba advertising. The process of importing an image from another web site is called inline linking. The image imported from another web site is displayed as though it is part of the current web page, surrounded by the current web page's text and advertising. As a result, although the image in Arriba's Image Attributes page was directly from the originating web site and not copied onto Arriba's site, the user typically would not realize that the image actually resided on another web site.
From July 1999 until sometime after August 2000, the results page contained thumbnails accompanied by two links: "Source" and "Details." The "Details" link produced a screen similar to the Images Attributes page but with a thumbnail rather than the full-sized image. Alternatively, by clicking on the "Source" link or the thumbnail from the results page, the site produced two new windows on top of the Arriba page. The window in the forefront contained the full-sized image, imported directly from the originating web site. Underneath that was another window displaying the originating web page. This technique is known as framing. The image from a second web site is viewed within a frame that is pulled into the primary site's web page.2
In January 1999, Arriba's crawler visited web sites that contained Kelly's photographs. The crawler copied thirty-five of Kelly's images to the Arriba database. Kelly had never given permission to Arriba to copy his images and objected when he found out that Arriba was using them. Arriba deleted the thumbnails of images that came from Kelly's own web sites and placed those sites on a list of sites that it would not crawl in the future. Several months later, Arriba received Kelly's complaint of copyright infringement, which identified other images of his that came from third-party web sites. Arriba subsequently deleted those thumbnails and placed those third-party sites on a list of sites that it would not crawl in the future.
The district court granted summary judgment in favor of Arriba. Although the court found that Kelly had established a prima facie case of infringement based on Arriba's reproduction and display of Kelly's photographs, the court ruled that such actions by Arriba constituted fair use. The court determined that two of the fair use factors weighed heavily in Arriba's favor. Specifically, the court found that the character and purpose of Arriba's use was significantly transformative and the use did not harm the market for or value of Kelly's works. Kelly now appeals this decision.
We review a grant of summary judgment de novo.3 We also review the court's finding of fair use, which is a mixed question of law and fact, by this same standard.4 "In doing so, we must balance the nonexclusive factors set out in 17 U.S.C. § 107."5
This case involves two distinct actions by Arriba that warrant analysis. The first action consists of the reproduction of Kelly's images to create the thumbnails and the use of those thumbnails in Arriba's search engine. The second action involves the display of Kelly's images through the inline linking and framing processes when the user clicks on the thumbnails. Because these actions are distinct types of potential infringement, we will analyze them separately.
An owner of a copyright has the exclusive right to reproduce, distribute, and publicly display copies of the work.6 To establish a claim of copyright infringement by reproduction, the plaintiff must show ownership of the copyright and copying by the defendant.7 As to the thumbnails, there is no dispute that Kelly owned the copyright to the images and that Arriba copied those images. Therefore, Kelly established a prima facie case of copyright infringement.
A claim of copyright infringement is subject to certain statutory exceptions, including the fair use exception.8 This exception "permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster."9 The statute sets out four factors to consider in determining whether the use in a particular case is a fair use.10 We must balance these factors, in light of the objectives of copyright law, rather than view them as definitive or determinative tests.11 We now turn to the four fair use factors.
The Supreme Court has rejected the proposition that a commercial use of the copyrighted material ends the inquiry under this factor.12 Instead,
[t]he central purpose of this investigation is to see ... whether the new work merely supersede[s] the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative.13
The more transformative the new work, the less important the other factors, including commercialism, become.14
There is no dispute that Arriba operates its web site for commercial purposes and that Kelly's images were part of Arriba's search engine database. As the district court found, while such use of Kelly's images was commercial, it was more incidental and less exploitative in nature than more traditional types of commercial use.15 Arriba was neither using Kelly's images to directly promote its web site nor trying to profit by selling Kelly's images. Instead, Kelly's images were among thousands of images in Arriba's search engine database. Because the use of Kelly's images was not highly exploitative, the commercial nature of the use only slightly weighs against a finding of fair use.
The second part of the inquiry as to this factor...
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