By Stephen Filler, Esq.

         
          Individuals or businesses who display images on the Internet should be aware of an important decision in July by the United States Appeals Court in California.

          In the continuing saga of Kelly v. Arriba Software Corporation, the Court of Appeals for the Ninth Circuit in California, affirmed its prior ruling that an internet image search engine that copied and displayed thumbnail images was not a copyright infringement but rather a fair use. The Court also reversed its prior decision and remanded to the trial court the question of whether defendant's display of full-sized images -- through inline links from third party sites -- was a copyright infringement.

          Plaintiff Kelly is a professional photographer who displayed images on his website, and defendant Arriba, now known as Ditto.com, operated an internet search engine that searched for and displayed images. Arriba used a web crawler to search the web for images, and then downloaded copies of the images to its computers. Arriba then generated smaller, lower resolution thumbnails for display, and deleted the originals. When a user entered a search term into the query box, Arriba's servers displayed thumbnails responsive to the search. After Arriba copied Kelly's images into its database and made thumbnails returnable by search on the Arriba site, Kelly sued for copyright infringement.

          The Court found that Arriba had copied Kelly's images and displayed thumbnails without Kelly's permission. Nonetheless, the Court ruled that this was not copyright infringement because the copying and display of the thumbnails was fair use.

          Even though it was clear that Arriba's purpose in displaying the images was commercial (e.g., it sold advertising on its site), Arriba's use of the images was "transformative." Kelly's images were artistic works used to illustrate and esthetically

portray the American West. In contrast, Arriba's search engine did not use the thumbnails for illustrative or esthetic purposes, but rather as part of a tool to index and improve access to images on the Internet. Further, the thumbnails were of such low resolution that it was unlikely that a user would enlarge and use them, or that their use would harm the market or value of Kelly's images.

          The Court concluded that Arriba's use of the thumbnails did not "supplant the need for the originals," but instead "created a different purpose for the images" and benefited "the public by enhancing the information-gathering techniques on the internet."

Copyright © 2003 Stephen Filler. Stephen Filler is an attorney (www.nylawline.com) whose practice focuses on intellectual property, copyright, trademark, technology, media, contracts, corporate and photography law. His office is located at 303 South Broadway, Suite 222, Tarrytown, New York, 10591, 914-332-4114, sfiller@nylawline.com. This column is to be used for informational purposes only and should not be considered as legal advice. For legal advice, please consult an attorney.

           

Tommy Thompson

Kerry Kolb

Jon Saban

Jake Nelson