702-623-6362 
Kelly v. Arriba Soft Corporation is an American judiciary case linking a professional shutterbug and a search engine. While the case was moving forward, Arriba Soft morphed into Sorceron, the developer and manager of Ditto.com, an Internet search engine. The court ruled that American search engines are permitted to use thumbnail images. The concern of connecting to full-size pictures was not answered.
Kelly, the plaintiff, sold images to a variety of publications through his website. Arriba Soft, a co-defendant with Arriba Soft‘s CEO Michael J. Lyons, operated a search engine. Arriba’s search tool indexed images on the Internet which allowed users could search through millions of images. The returned images were postage stamp-size connected directly to the search term used.
The thumbnail picture was stored on Arriba’s network, but the whole image was not filed on their network. The image displayed as a thumbnail, and the full-size image was connected to by the user and displayed in a framework presented by Arriba. Kelly contested Arriba for copyright violation for using both the thumbnail picture and the full-size image.
In 2002, the court affirmed a lower court’s ruling that the use of thumbnails was prima facie violating Kelly’s copyright, but use was permitted under the fair use doctrine. The court also affirmed the freedom of search engines to show thumbnail copies within search results. The court did toss out a summary judgment decision for the defendant saying that fair use did not allow inline linking which presented Kelly’s pictures in Arriba’s website.
In July 2003, the court modified its first decision and allowed to hold the decision about thumbnails and fair use but walked back its ruling on inline links. The Court of Appeals Judge, T.G. Nelson, ruled that operative use of owner’s pictures as “thumbnails” was fair use.
Eventually, Kelly won $345,000 plus lawyer fees just over $6,000.
The courts reviewing the summary judgment request analyzed four factors laid out in the U.S. Copyright Act. Those four elements are:
Purpose and Character of Use
The images’ use was found to be business and transformative, not of the same type as innovative work as the pictures were not being marketed as pictures but were to aid in identifying the pictures in the search engine.
Nature of Copyrighted Work
The images are distributed original work accessible online. An original work supports a conclusion of violation.
Substantiality of Portions Used Amount and
The courts found this to be indeterminate, and it was important for Arriba to reproduce the complete picture to enable users to recognize the picture.
This required studying the effect to see if the offenses were broad and not merely the result of a distinct user. A transformative product is less apt to have a negative impact than one that replaces the original.
As the court analyzed the four fair use determinants, they determined that two weighed for Arriba, one was neutral, and one weighed, slightly, in Kelly’s favor. Therefore, the court concluded that Arriba’s use of Kelly’s pictures as postage stamp-size was a fair use.
SEARCH
