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Kelly v. Arriba Soft Corp. - 336 F.3d 811 (9th Cir. 2003)


17 U.S.C.S. § 107 sets out four factors to consider in determining whether the use in a particular case is a fair use. The four factors are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. A court must balance these factors in light of the objectives of copyright law, rather than view them as definitive or determinative tests.


Plaintiff Leslie A. Kelly was a professional photographer who copyrighted many of his images of the American West. Some of the images were located on Kelly's web site or other web sites with which Kelly had a license agreement. Defendant, Arriba Soft Corporation ("Arriba") operated an internet search engine that displayed 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 the small pictures, called "thumbnails," the user could view a large version of that same picture within the context of the Arriba web page. Kelly's photographs were part of Arriba's search engine database, and when Kelly discovered such fact, he filed a lawsuit against Arriba in federal district court alleging copyright infringement. The parties filed motions for summary judgment; the district court granted Arriba's motion. The district court found that Kelly established a prima facie case of copyright infringement based on Arriba's unauthorized reproduction and display of his works, but that the reproduction and display constituted a non-infringing "fair use" under § 107 of the Copyright Act, 17 U.S.C.S. § 107. Kelly appealed.


Did Arriba's reproduction and display of Kelly's works constitute fair use under § 107 of the Copyright Act?




The court of appeals affirmed in part and reversed in part the district court's judgment and remanded the matter for further proceedings. The court ruled that although Arriba made exact replications of Kelly's images, the thumbnails were much smaller, lower-resolution images that served an entirely different function than the original images. Kelly's images served an aesthetic purpose while Arriba's thumbnails were unrelated to any aesthetic purpose and were designed as a tool to help index and improve access to images on the internet. Users were unlikely to enlarge the thumbnails and use them for artistic purposes because the thumbnails were of much lower-resolution than the originals, making them inappropriate as display material. Thus, Arriba's use was transformative. Further, given the thumbnails' lack of artistic purpose, their use did not stifle creativity. The appellate court determined that two of the four factors under § 107 weighed in favor of Arriba, which was sufficient for a finding of fair use. However, the court ruled, because the parties did not seek summary judgment as to copyright infringement of the full-size images, the district court improperly addressed that issue. Consequently, the court remanded the case to the district court for it to decide whether Arriba's display of the larger image was a violation of Kelly's exclusive right to publicly display his works.

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