When the user double-clicked on the thumbnail, a full-sized version of the image was
displayed. During one period of time, the full-sized images were produced by “inline linking” –
i.e., by retrieving the image from the original web site and displaying it on the Arriba web page
with text describing the size of the image and a link to the originating site – such that the user
would typically not realize the image actually resided on another web site. During a subsequent
period of time, the thumbnails were accompanied by two links, a “source” and a “details” link.
The “details” link produced a separate screen containing the thumbnail image with text
describing the size of the image and a link to the originating site. Alternatively, by clicking on
the “source” link or the thumbnail itself, the Arriba site produced two framed windows on top of
the Arriba page: the window in the forefront contained the full-sized image, imported directly
from the originating site; underneath that was a second window displaying the home page
containing the image from the original site.^543
Arriba’s crawler copied 35 photographs on which the plaintiff, Kelly, held the copyrights
into the Arriba database. When he complained, 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, Kelly sued Arriba, identifying in the complaint other images
of his that came from third party web sites.^544 The district court ruled that Arriba’s use of both
the thumbnails and the full sized images was a fair use, and Kelly appealed.^545
The Ninth Circuit, in an opinion issued in July of 2003,^546 affirmed the ruling that the use
of the thumbnails was a fair use. Applying the first of the four statutory fair use factors, the
court held that the thumbnails were a transformative use of Kelly’s works because they were
much smaller, lower resolution images that served an entirely different function than Kelly’s
original images. Users would be unlikely to enlarge the thumbnails and use them for artistic
purposes because the thumbnails were of much lower resolution than the originals. Thus, the
first fair use factor weighted in favor of Arriba.^547
The court held that the second factor, the nature of the copyrighted work, weighed
slightly in favor of Kelly because the photographs were creative in nature. The third factor, the
amount and substantiality of the portion used, was deemed not to weigh in either party’s favor.
Although the entire images had been copied, it was necessary for Arriba to copy the entire
images to allow users to recognize the image and decide whether to pursue more information
about it or the originating web site.^548
(^543) Id. at 815-16.
(^544) Id. at 816.
(^545) Id. at 816-17.
(^546) The 2003 opinion withdrew an earlier and highly controversial opinion issued by the court in 2002, discussed
further below.
(^547) Id. at 818-19.
(^548) Id. at 820-21.