Kelly v. Arriba Soft Corporation

Kelly v. Arriba Soft Corporation, 280 F.3d 934 (9th Cir. 2002) withdrawn, re-filed at 336 F.3d 811 (9th Cir. 2003), is a U.S. court case between a commercial photographer and a search engine company. During the case ownership of Arriba Soft changed to Sorceron, the operator of the Internet search engine Ditto.com. The court found that US search engines may use thumbnails of images (size limits not determined), though the issue of inline linking to full size images instead of going to the original site was not resolved.

The plaintiff Kelly sold pictures to various publications from his web site. The defendants Arriba Soft Inc. and its CEO Michael J. Lyons ran a search engine. Defendant Arriba's search engine indexed pictures from the web so that web users can conduct image searches. The search engine returns a set of postage stamp-size image thumbnails that relate directly to the specific term searched on. Kelly's pictures appeared as thumbnails on defendants' search engine along with millions of other thumbnail images from all over the web. Clicking on the thumbnails from Kelly's website would connect the user with Kelly's website via a deep link. In addition to the display, a postage stamp size thumbnail image the user could also link to the full picture in a new web browser window. The thumbnail image was stored on Arriba's system, but the full picture was not stored in Arriba's system. The picture is displayed on the user's screen as a "thumbnail", and if the full picture was linked to by the user then it was presented in a frame environment provided by Arriba. Kelly sued Arriba for copyright infringement for both use of the thumbnail image and use of the full image.

The United States District Court for the Central District of California, Gary L. Taylor, J., 77 F.Supp. 2d 1116, granted summary judgment for search engine operator based on finding of fair use and owner appealed.

In 2002, the Ninth Circuit United States Court of Appeals in San Francisco, California affirmed the District Court's holding that thumbnails were prima facie infringing Kelly's copyright, but that the fair use doctrine permitted the use of the thumbnails in the image index. It upheld the right of image search engines to display thumbnail copies of images within their search results. However, the Circuit Court overturned a portion of the lower court summary judgment ruling in favor of the defendant, holding that fair use did not permit the inline linking or framing processes that displayed Kelly's images in the context of Arriba's web site.

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