Court OKs Reproduction of Thumbnail Images

The Ninth Circuit Court of Appeals has ruled that Web sites may legally reproduce and post thumbnail versions of copyrighted photographs without violating the artists' exclusive right to display their own works. The decision in Kelly v. Arriba was issued on February 6th, affirming in part and reversing in part the lower court's decision. The case was brought by Leslie Kelly, a professional photographer who sued the search engine Arriba for publishing his pictures on its site. Arriba (now known as "Ditto.com") follows a practice common among search engines of providing a service that canvasses the Internet for graphics files and returns results as thumbnail images. If a thumbnail is clicked, the site will return a framed image of the original Web site containing the image. The court said this use of thumbnail images constituted fair use, in part because it was transformative or added value to the work, and also because it did not diminish the value of the underlying work. However, the judge also ruled that Arriba's subsequent display of Kelly's full-sized images in the framed Web page is not a fair use and violates Kelly's exclusive right to display his copyrighted works. The panel ordered the case to be remanded back to the district court, which will determine the appropriate amount in damages and decide whether an injunction is necessary. Ernie's thoughts on Arriba.