The plaintiff, a professional photographer, placed some of his images on his Web site, as well as on other web sites with which he had a license agreement. Arriba Soft operated an Internet search engine that displayed results in the form of small pictures (“thumbnails”). 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 appealed that decision, and the Ninth Circuit Court of Appeal affirmed in part and reversed in part. The creation and use of the thumbnails in the search engine was a fair use. However, it held that the District Court should not have decided whether the display of the larger image was a violation of Kelly’s exclusive right to publicly display his works. Thus, the case was remanded for further proceedings.
Kelly v. Arriba Soft Corp.
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