Can an operator of a visual search engine use the copyrighted images of another owner as “thumbnails” in its search engine?
Probably. The creation and use of “thumbnails” — smaller, lower resolution copies of an image the enlargement of which would lead to a loss of clarity of the image– as part of such a search engine may be a fair use. The Ninth Circuit Court of Appeals recently held in Kelly v. Arriba Soft that displaying the copyrighted images of another as thumbnails on a search engine was a fair use because the thumbnails served a completely different purpose than the original images. Working through the four factor fair use analysis, the court emphasized that it was essential to determine if defendant’s use was transformative in nature. It is more likely that a court will find fair use if the defendant’s use of the image advances a purpose different than the copyright holder’s, rather than merely superseding the object of the originals. For example, the Ninth Circuit found there to be a fair use since the displayed images were not for illustrative artistic purposes, but were rather used as part of
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