Unintended Consequences

9th Cir: Thumbnailing "Fair Use" in Ditto.com case

EFF: Web Linking Need Not Cause Copyright Liability. The Ninth Circuit has revised an earlier opinion regarding a search engine provider's use of low-res 'thumbnail' versions of others' full-sized images. The thumbnails were made and stored by the search engine provider for such purposes. The Court found such to be "fair use," after applying a balancing test of factors described in the opinion issued July 7, 2003.

The so-called "Ditto.com" case has been closely followed by the IP and Internet law bar since the 2002 ruling that such thumbnail use was not within the "fair use" exception. The Court remanded for further consideration the question whether the framing of a full-sized display of an image selected from the thumbnail was or was not a fair use.

The Ninth Circuit's revised ruling in Kelly v. Arriba Soft case (PDF)

Another PDF of the decision.

The Court cited as the four factors to consider in determining "fair use:"

" 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"

Commercial use does not end the consideration under the first factor, according to Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), where the Supreme Court said:

"[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." Id. at 579.

The Court of Appeals found that Arriba's use of the thumbnails of artist Leslie Kelly's artworks was transformative because they served an entirely different function than Kelly's original images. The Court compared the use to the finding of a transformative use in Nunez v. Caribbean International News Corp, 235 F.3d 18 (1st Cir. 2000), where a copy of a photo intended for use in a modelling portfolio was used in a news article.

The Court found the second and third factors more evenly balanced. As to the fourth factor, the Court again cited Campbell, saying that a "transformative work is less likely to have an adverse impact on the market of the original than a work that merely supercedes the copyrighted work."

The Court held the use of the thumbnails "fair use" under the Copyright Act, but remanded the case for further consideration on the use of the full-size images.

A note in the weblog "Unintended Consequences" at DougSimpson.com

Posted by dougsimpson at August 1, 2003 04:14 PM | TrackBack