336 F.3d 811 (9th
Circuit Court of Appeals)
LESLIE A. KELLY, an individual, dba Les Kelly Publications, dba
Les Kelly Enterprises, dba Show Me The Gold, Plaintiff-Appellant, v. ARRIBA
SOFT CORPORATION, AN ILLINOIS CORPORATION, Defendant-Appellee.
No. 00-55521
UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
336 F.3d 811
September 10,
2001, Argued and Submitted, Pasadena, California, Opinion July 7, 2003, Filed
PRIOR HISTORY:
[**1] Appeal from the United States District Court for the Central District of
California. D.C. No. CV-99-00560-GLT. Gary L. Taylor, District Judge,
Presiding. Kelly v. Arriba Soft Corp., 280 F.3d
934, 2002 U.S.
App. LEXIS 1786 (9th Cir. Cal., 2002)
DISPOSITION: Prior
opinion withdrawn by order of the court. The decision of the district court was
affirmed in part, reversed in part and remanded for further proceedings.
COUNSEL: Charles
D. Ossola, Arnold & Porter, Washington, D.C., for the plaintiff-appellant.
Steven Krongold,
Arter and Hadden, Irvine, California, for the plaintiff-appellant.
Judith B.
Jennison, Perkins Coie LLP, San Francisco, California, for the
defendant-appellee.
Victor S.
Perlman, American Society of Media Phographers, Inc., Philadelphia,
Pennsylvania, for amici curiae National Music Publishers' Association.
Laura W. Brill
and Elliot Brown, Irell & Manella, L.L.P., Los Angeles, California, for
amici curiae AltaVista Co., Google, Inc., and Yahoo! Inc.
Fred von
Lohmann, Electronic Frontier Foundation, San Francisco, California, for amici
curiae Electronic Frontier Foundation.
JUDGES: Before:
Betty B. Fletcher, Thomas G. Nelson, and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Thomas G. Nelson.
OPINIONBY:
Thomas G. Nelson
OPINION: [*815]
T.G. NELSON, Circuit Judge:
This case
involves the application of copyright law to the vast world of the internet and
internet search engines. The plaintiff, Leslie Kelly, is a professional [**2]
photographer who has copyrighted many of his images of the American West. Some
of these images are located on Kelly's web site or other web sites with which
Kelly has a license agreement. The defendant, Arriba Soft Corp., n1 operates an
internet search engine that displays 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 these
small pictures, called "thumbnails," the user can then view a large
version of that same picture within the context of the Arriba web page.
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n1 Arriba Soft
has changed its name since the start of this litigation. It is now known as
"Ditto.com."
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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
[**3] works, but that this reproduction and display constituted a
non-infringing "fair use" under Section 107 of the Copyright Act. Kelly
appeals that decision, and we affirm in part and reverse in part.
The creation and
use of the thumbnails in the search engine is a fair use. However, the district
court should not have decided whether the display of the larger image is a
violation of Kelly's exclusive right
to publicly
display his works. Thus, we remand for further proceedings consistent with this
opinion.
I.
The search
engine at issue in this case is unconventional in that it displays the results
of a user's query as "thumbnail" images. When a user wants to search
the internet for information on a certain topic, he or she types a search term
into a search engine, which then produces a list of web sites that contain
information relating to the search term. Normally, the list of results is in text
format. The Arriba search engine, however, produces its list of results as
small pictures.
To provide this
service, Arriba developed a computer program that "crawls" the web
looking for images to index. This crawler downloads full-sized copies of the
images onto Arriba's server. The program [**4] then uses these copies to
generate smaller, lower-resolution thumbnails of the images. Once the
thumbnails are created, the program deletes the
full-sized
originals from the server. Although a user could copy these thumbnails to his
computer or disk, he cannot increase the resolution of the thumbnail; any
enlargement would result in a loss of clarity of
the image.
The second
component of the Arriba program occurs when the user double-clicks on the
thumbnail. From January 1999 to June 1999, clicking on the thumbnail produced
the "Images Attributes" [*816] page. This page used in-line linking
to display the original full-sized image, surrounded by text describing the
size of the image, a link to the original web site, the Arriba banner, and
Arriba advertising.
In-line linking
allows one to import a graphic from a source website and incorporate it in
one's own website, creating the appearance that the in-lined graphic is a
seamless part of the second web page. n2
The in-line link
instructs the user's browser to retrieve the linked-to image from the source
website and display it on the user's screen, but does so without leaving the
linking document. n3 Thus, the linking party can incorporate [**5] the linked
image into its own content. As a result, although the image in Arriba's Images
Attributes page came directly from the originating web site and was not copied
onto Arriba's server, the user would not realize that the image actually
resided on another web site.
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n2 Mark
Sableman, Link Law Revisited: Internet Linking Law at Five Years, 16 BERKELEY
TECH. L.J. 1273, 1297
(2001).
n3 Stacey L.
Dogan, Infringement Once Removed: The Perils of Hyper-linking to Infringing
Content, 87 IOWA L. REV. 829, 839 n.32 (2002).
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From July 1999
until sometime after August 2000, the results page contained thumbnails
accompanied by two links: "Source" and "Details." The
"Details" link produced a screen similar to the Images Attributes
page but with a
thumbnail rather than the full-sized image. Alternatively, by clicking on the
"Source" link or the thumbnail from the results page, the site
produced two new windows on top of the Arriba page. The window in the forefront
contained solely [**6] the full-sized image. This window partially obscured
another window, which displayed a reduced-size version of the image's
originating web page. Part of the Arriba web page was visible underneath both
of these new windows. n4
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n4 Currently,
when a user clicks on the thumbnail, a window of the home page of the image
appears on top of the Arriba page. There is no window just containing the
image.
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In January 1999,
Arriba's crawler visited web sites that contained Kelly's photographs. The
crawler copied thirty-five of Kelly's images to the Arriba database. Kelly had
never given permission to Arriba to copy his images and objected when he found
out that Arriba was using them. 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, Arriba received Kelly's
complaint of copyright infringement, which identified other images of his that
came from third-party web sites. Arriba subsequently deleted
[**7] those
thumbnails and placed those third-party sites on a list of sites that it would
not crawl in the future.
The district
court granted summary judgment in favor of Arriba. Kelly's motion for partial
summary judgment asserted that Arriba's use of the thumbnail images violated
his display, reproduction, and distribution
rights. Arriba
cross-moved for summary judgment. For the purposes of the motion, Arriba
conceded that Kelly established a prima facie case of infringement.
However, it
limited its concession to the violation of the display and reproduction rights
as to the thumbnail images. Arriba then argued that its use of the thumbnail
images was a fair use.
The district
court did not limit its decision to the thumbnail images alone. The court
granted summary judgment to Arriba, finding that its use of both the thumbnail
[*817] images and the full-size images was
fair. In doing
so, the court broadened the scope of Kelly's original motion to include a claim
for infringement of the full-size images. The court also broadened the scope of
Arriba's concession to cover the prima facie case for both the thumbnail images
and the full-size images. The court determined that two of the fair [**8] use
factors weighed heavily in Arriba's favor. Specifically, the court found that
the character and purpose of Arriba's use was significantly transformative and
the use did not harm the market for or value of Kelly's works. Kelly now
appeals this decision.
II.
We review a
grant of summary judgment de novo. n5 We also review the court's finding of
fair use, which is a mixed question of law and fact, by this same standard.
n6 "In
doing so, we must balance the nonexclusive factors set out in 17 U.S.C. §
107." n7
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n5 Los Angeles
News Serv. v. Reuters Television Int'l. Ltd., 149 F.3d 987, 993 (9th Cir.
1998).
n6 Id.
n7 Id.
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The district
court's decision in this case involves two distinct actions by Arriba that
warrant analysis. The first action consists of the reproduction of Kelly's
images to create the thumbnails and the use of those thumbnails in Arriba's
search engine. The second action involves the display of Kelly's larger images
when the user [**9] clicks on the thumbnails. We conclude that, as to the first
action, the district court correctly found that Arriba's use was fair. However,
as to the second action, we conclude that the district court should not have
reached the issue because neither party moved for summary judgment as to the
full-size images and Arriba's response to Kelly's summary judgment motion did
not concede the prima facie case for infringement as to those images.
A.
An owner of a
copyright has the exclusive right to reproduce, distribute, and publicly
display copies of the work. n8 To establish a claim of copyright infringement
by reproduction, the plaintiff must show ownership of the copyright and copying
by the defendant. n9 As to the thumbnails, Arriba conceded that Kelly
established a prima facie case of infringement of Kelly's reproduction rights.
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n8 17 U.S.C. §
106.
n9 Hustler
Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir. 1986)
(quoting 3 M. Nimmer & D. Nimmer, Nimmer on Copy-right § 13.01 (1985)).
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A claim of
copyright infringement is subject to certain statutory exceptions, including
the fair use exception. n10 This exception "permits courts to avoid rigid
application of the copyright statute when, on occasion, it would stifle the
very creativity which that law is designed to foster." n11 The statute
sets out four factors to consider in determining whether the use in a
particular case is a fair use. n12
[*818] We must
balance these factors in light of the objectives of copyright law, rather than
view them as definitive or determinative tests. n13 We now turn to the four
fair use factors.
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n10 17 U.S.C. §§
106, 107.
n11 Dr. Seuss
Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1399 (9th Cir. 1997)
(internal quotation marks omitted).
n12 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. 17 U.S.C. §
107.
[**11]
n13 Dr. Seuss,
109 F.3d at 1399.
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1. Purpose and
character of the use.
The Supreme
Court has rejected the proposition that a commercial use of the copyrighted
material ends the inquiry under this factor. n14 Instead, [t]he central purpose
of this investigation is to see . . . whether the new work merely supersede[s]
the objects of the original creation, or instead adds something new, with a further
purpose or different character, altering the first with new expression,
meaning, or message; it asks, in other words, whether and to what extent the
new work is transformative. n15
The more
transformative the new work, the less important the other factors, including
commercialism, become. n16
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n14 Campbell v.
Acuff-Rose Music, Inc., 510 U.S. 569,
579, 127 L. Ed.
2d 500, 114 S. Ct. 1164 (1994).
n15 Id.
(internal quotation marks and citation
omitted)
(alteration in original).
n16 Id.
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There is no
dispute that Arriba operates its web site for commercial purposes and that
Kelly's images were part of Arriba's search engine database. As the district
court found, while such use of Kelly's images
was commercial,
it was more incidental and less exploitative in nature than more traditional
types of commercial use. n17 Arriba was neither using Kelly's images to
directly promote its web site nor trying to profit by selling Kelly's images.
Instead, Kelly's images were among thousands of images in Arriba's search
engine data-base. Because the use of Kelly's images was not highly
exploitative, the commercial nature of the use weighs only slightly against a
finding of fair use.
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n17 See, e.g.,
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001)
("[C]ommercial use is demonstrated by a showing that repeated and
exploitative unauthorized copies of copyrighted works were made to save the
expense of purchasing authorized copies.").
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The second part
of the inquiry as to [**13] this factor involves the transformative nature of
the use. We must determine if Arriba's use of the images merely superseded the
object of the originals or instead added a further purpose or different
character. n18 We find that Arriba's use of Kelly's images for its thumbnails
was transformative.
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n18 Campbell,
510 U.S. at 579.
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Although Arriba
made exact replications of Kelly's images, the thumbnails were much smaller,
lower-resolution images that served an entirely different function than Kelly's
original images. Kelly's images are artistic works intended to inform and to
engage the viewer in an aesthetic experience.
His images are
used to portray scenes from the American West in an aesthetic manner. Arriba's
use of Kelly's images in the thumbnails is unrelated to any aesthetic purpose.
Arriba's search engine functions as
a tool to help
index and improve access to images on the internet and their related web sites.
In fact, users are unlikely to enlarge the thumbnails and use them for artistic
[**14] purposes because the thumbnails are of much lower-resolution than the
originals; any enlargement results in a significant loss of clarity of the
image, making them inappropriate as display material.
Kelly asserts
that because Arriba reproduced his exact images and added nothing [*819] to
them, Arriba's use cannot be transformative. Courts have been reluctant to find
fair use when an original work is merely retransmitted in a different medium.
n19 Those cases are inapposite, however, because the resulting use of the
copyrighted work in those cases was the same as the original use. For instance,
reproducing music CDs in computer MP3 format does not change the fact that both
formats are used for entertainment purposes. Likewise, reproducing news footage
into a different format does not change the ultimate purpose of informing the public
about current affairs.
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n19 See Infinity
Broad. Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998) (concluding that
retransmission of radio broadcast over telephone lines is not transformative);
UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 351 (S.D.N.Y. 2000)
(finding that
reproduction of audio CD into computer MP3 format does not transform the work);
Los Angeles News Serv., 149 F.3d at 993 (finding that reproducing news footage
with-out editing the footage "was not very transformative").
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Even in Infinity
Broadcast Corp. v. Kirkwood, n20 where the retransmission of radio broadcasts
over telephone lines was for the purpose of allowing advertisers and radio
stations to check on the broadcast of commercials or on-air talent, there was
nothing preventing listeners from subscribing to the service for entertainment
purposes. Even though the intended purpose of the retransmission may have been
different from the purpose of the original transmission, the result was that
people could use both types of transmissions for the same purpose.
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n20 150 F.3d
104.
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This case
involves more than merely a retransmission of Kelly's images in a different
medium. Arriba's use of the images serves a different function than Kelly's use
-- improving access to information on the internet versus artistic expression.
Furthermore, it would be unlikely that anyone would use Arriba's thumbnails for
illustrative or aesthetic purposes because enlarging them sacrifices their
clarity. Because Arriba's use is not [**16] superseding Kelly's use but,
rather, has
created a
different purpose for the images, Arriba's use is transformative.
Comparing this
case to two recent cases in the Ninth and First Circuits reemphasizes the
functionality distinction. In Worldwide Church of God v. Philadelphia Church of
God, Inc., n21 we held that copying a religious book to create a new book for
use by a different church was not transformative. n22 The second church's use
of the book was merely to make use of the same book for another church
audience. The court noted that "where the use is for the same intrinsic
purpose as [the copyright holder's] . . . such use seriously weakens a claimed
fair use." n23
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n21 227 F.3d
1110 (9th Cir. 2000).
n22 Id. at 1117.
n23 Id.
(internal quotation marks omitted) (alteration and ellipses in original).
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On the other
hand, in Nunez v. Caribbean International News Corp., n24 the First Circuit
found that copying a photo-graph that was intended to be used in [**17] a
modeling portfolio and using it instead in a news
article was a
transformative use. n25 By putting a copy of the photograph in the newspaper,
the work was transformed into news, creating a new meaning or purpose for the
work. The use of Kelly's images in Arriba's search engine is more analogous to
the situation in Nunez because Arriba has created a new purpose for the images
[*820] and is not simply superseding Kelly's purpose.
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n24 235 F.3d 18
(1st Cir. 2000).
n25 Id. at
22-23.
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The Copyright
Act was intended to promote creativity, thereby benefitting the artist and the
public alike. To preserve the potential future use of artistic works for
purposes of teaching, research, criticism, and news reporting, Congress created
the fair use exception. n26 Arriba's use of Kelly's images pro-motes the goals
of the Copyright Act and the fair use exception. The thumbnails do not stifle
artistic creativity because they are not used for illustrative or artistic
purposes and there-fore do [**18] not supplant the need for the originals. In
addition, they benefit the public by enhancing information-gathering techniques
on the internet.
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n26 17 U.S.C. §
107 ("[T]he fair use of a copyrighted work . . . for purposes such as
criticism, comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not an infringement of
copyright."); see also Campbell, 510 U.S. at 576-77.
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In Sony Computer
Entertainment America, Inc. v. Bleem,n27 we held that when Bleem copied
"screen shots" from Sony computer games and used them in its own
advertising, it was a fair use. n28 In finding that the first factor weighed in
favor of Bleem, we noted that "comparative advertising redounds greatly to
the purchasing public's benefit with very little corresponding loss to the
integrity of Sony's copyrighted material." n29 Similarly, this first
factor weighs in favor of Arriba due to the public benefit of the search engine
and the minimal loss[**19] of integrity to Kelly's images.
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n27 214 F.3d
1022 (9th Cir. 2000).
n28 Id. at 1029.
n29 Id. at 1027.
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2. Nature of the
copyrighted work.
"Works that
are creative in nature are closer to the core of intended copyright protection
than are more fact-based works." n30 Photographs that are meant to be
viewed by the public for informative and aesthetic
purposes, such
as Kelly's, are generally creative in nature. The fact that a work is published
or unpublished also is a critical element of its nature.
n31 Published
works are more likely to qualify as fair use because the first appearance of
the artist's expression has already occurred. n32 Kelly's images appeared on
the internet before Arriba used them in its search image. When considering both
of these elements, we find that this factor weighs only slightly in favor of
Kelly.
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n30 A&M
Records, 239 F.3d at 1016 (citing Campbell, 510 U.S. at 586) (internal
quotation marks omitted).
[**20]
n31 Harper &
Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564, 85 L. Ed. 2d 588,
105 S. Ct. 2218 (1985) (noting that the scope of fair use is narrower with
respect to unpublished works because the author's
right to control
the first public appearance of his work weighs against the use of his work
before its release).
n32 Id.
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3. Amount and
substantiality of portion used.
"While wholesale
copying does not preclude fair use per se, copying an entire work militates
against a finding of fair use." n33 However, the extent of permissible
copying varies with the purpose and character of the use. n34 If the secondary
[*821] user only copies as much as is necessary for his or her intended use,
then this factor will not weigh
against him or
her.
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n33 Worldwide
Church of God, 227 F.3d at 1118
(internal
quotation marks omitted).
n34 Campbell,
510 U.S. at 586-87.
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This factor
neither weighs for nor against either party because, although Arriba did copy
each of Kelly's images as a whole, it was reasonable to do so in light of
Arriba's use of the images. It wasnecessary for Arriba to copy the entire image
to allow users to recognize the image and decide whether to pursue more
information about the image or the originating web site. If Arriba only copied
part of
the image, it
would be more difficult to identify it,thereby reducing the usefulness of the
visual search engine.
4. Effect of the
use upon the potential market for or value of the copyrighted work.
This last factor
requires courts to consider "not only the extent of market harm caused by
the particular actions of the alleged infringer, but also 'whether unrestricted
and wide-spread conduct of the sort engaged in by the defendant . . . would
result in a substantially adverse impact on the potential market for the
original.' " n35 A transformative work is less likely to have an adverse
impact on the market of the original than a work that merely supersedes the
copyrighted work. n36
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n35 Id. at 590
(quoting 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 13.05[A][4] (1993))
(ellipses in original). [**22]
n36 See id. at
591 (stating that a work that supersedes the object of the original serves as a
market replacement for it, making it likely that market harm will occur, but
when the second use is transformative, market substitution is less certain).
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Kelly's images
are related to several potential markets. One purpose of the photographs is to
attract internet users to his web site, where he sells advertising space as
well as books and travel packages. In addition, Kelly could sell or license his
photographs to other web sites or to a stock photo data-base, which then could
offer the images to its customers.
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. By showing the thumbnails on its results page when
users entered terms related to Kelly's images, the search engine would guide
users to Kelly's web site rather than away from it. Even if users were more
interested in the image itself rather than the information on the web page,
they would still have to go to Kelly's site to see the full-sized image.
The[**23] thumbnails would not be a substitute for the full-sized images
because the thumbnails lose their clarity when enlarged. If a user wanted to
view or download a quality image, he or she would have to visit Kelly's web
site. n37 This would hold true whether the thumbnails are solely in Arriba's
database or are more widespread and found in other search engine databases.
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n37 We do not
suggest that the inferior display quality of a reproduction is in any way
dispositive or will always assist an alleged infringer in demonstrating fair
use. In this case, however, it is extremely unlikely that users would download
thumbnails for display purposes, as the quality full-size versions are easily
accessible from Kelly's web sites.
In addition, we
note that in the unique context of photographic images, the quality of the
reproduction may matter more than in other fields of creative endeavor. The
appearance of photographic images accounts for virtually their entire aesthetic
value.
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Arriba's use of
Kelly's images also would [**24] not harm Kelly's ability to sell or license
his full-sized images. Arriba does not sell or license its thumbnails to other
parties. Anyone who downloaded the thumbnails [*822] would not be successful
selling full-sized images enlarged from the thumbnails because of the low
resolution of the thumbnails. There would be no way to view, create, or sell a
clear, full-sized image without going to Kelly's web sites. Therefore, Arriba's
creation and use of the thumbnails does not harm the market for or value of
Kelly's images. This factor weighs in favor of Arriba.
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.
B.
As mentioned
above, the district court granted summary judgment to Arriba as to the
full-size images as well.
How-ever,
because the court broadened the scope of
both the
par-ties' motions for partial summary
judgment and
Arriba's concession on the prima facie
case, we must
reverse this portion of the court's
opinion.
With limited
exceptions that do not apply here, a
district court
may not [**25] grant summary judgment
on a claim when
the party has not requested it. n38
The parties did
not move for summary judgment as to
copyright
infringement of the full-size images.
Further, Arriba
had no opportunity to contest the
prima facie case
for infringement as to the full-size
images. n39
Accordingly, we reverse this portion of
the district
court's opinion and remand for further
proceedings.
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- - - - - - Footnotes - - - - - - - -
- - - - - - -
n38 See Kilroy
v. Ruckelshaus, 738 F.2d 1448, 1452
(9th Cir. 1984).
n39 See United
States v. Grayson, 879 F.2d 620, 625
(9th Cir. 1989).
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- - - - End Footnotes- - - - - - - - -
- - - - -
CONCLUSION
We hold that
Arriba's reproduction of Kelly's images
for use as
thumbnails in Arriba's search engine is a
fair use under
the Copyright Act. However, we hold
that the
district court should not have reached
whether Arriba's
display of Kelly's full-sized images
is a fair use
because the parties never moved for
summary judgment
on this claim and Arriba never
conceded the
prima facie case as to the full-size
images. The
district court's opinion [**26] is
affirmed as to
the thumbnails and reversed as to the
display of the
full-sized images. We remand for
further
proceedings consistent with this opinion. Each
party shall bear
its own costs and fees on appeal.
AFFIRMED in
part, REVERSED in part, and REMANDED.