As of September, 2003, it appears that US search engines may use thumbnails of images (size limits still not determined) and the issue of inline linking to full size images instead of going to the original site is unresolved. Caution suggests obtaining legal advice; linking to the original site in its own window appears a safe choice; with requesting permission remaining the most prudent course of action.
Facts
The plaintiff sold pictures to various publications. The defendant ran a search engine on which plaintiff Kelly's pictures appeared as thumbnails. Clicking on the thumbnails would connect with Kelly's website and display the full picture in a new browser window. The full picture was not stored in Arriba's system, but would nevertheless be displayed on the user's screen in a frame environment provided by Arriba.
Case history
In 2002 the Ninth Circuit United States Court of Appeals in San Francisco, California overturned a lower court summary judgment ruling in favor of the defendant, holding that:
Fair use analysis
Each of the courts that reviewed the summary judgment application conducted an analysis of the four factors which are stated in section 107 of the United States Copyright Act. What follows is the analysis done in the revised Ninth Circuit opinion of July 2003.
For other fair use and copyright cases see: List of leading legal cases in copyright law.
Purpose and character of the use.
The use was found to be commercial and transformative, not of the same type as the original work, because the images were not being sold as pictures but rather were to facilitate the identification of the images in the search engine: "This first factor weighs in favor of Arriba due to the public benefit of the search engine and the minimal loss of integrity to Kelly’s images".
Nature of the copyrighted work.
The pictures are a published creative work available on the internet. A creative work favors a finding of infringement. As a published work, the use is more likely to be fair: "This factor weighs only slightly in favor of Kelly".
Amount and substantiality of portion used.
The court found this factor to be neutral: "Copying an entire work militates against a finding of fair use ... If the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her ... This factor neither weighs for nor against either party ... It was necessary for Arriba to copy the entire image to allow users to recognize the image and decide whether to pursue more information".
Effect of the use upon the potential market for or value of the copyrighted work.
This requires considering the effect if the actions were widespread, not solely the effect of the particular user. A transformative work is less likely to have an adverse effect than one which merely supersedes the original: "Arriba’s use of Kelly’s images in its thumbnails does not harm the market for Kelly’s images or the value of his images". The thumbnails would guide people to Kelly's work rather than away from it and the size of the thumbnails makes using them instead of the original unattractive.Result of the analysis
"Having considered the four fair use factors and found that two weigh in favor of Arriba, one is neutral, and one weighs slightly in favor of Kelly, we conclude that Arriba’s use of Kelly’s images as thumbnails in its search engine is a fair use".External link