Kelly v. Arriba Soft Corp., 336 F. 3d 811 - Court of Appeals, 9th Circuit 2003

An internet search engine can display low-resolution versions of copyrighted images in order to direct the user to the website where the original could be found.

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

"If the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against" fair use.

That is, "[p] ublished works are more likely to qualify as fair use because the first appearance of the artist's expression has already occurred." Id

We held that Arriba's use of thumbnail images was a fair use primarily based on the transformative nature of a search engine and its benefit to the public.

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

—holding that Arriba' s use of thumbnails was transformative because “Arriba' s use of the images serve [d] a different function than Kelly' s use–improving access to information on the internet versus artistic expression

"Works that are creative in nature, such as photographs that are meant to be viewed by the public for informative and aesthetic purposes, are closer to the core of intended copyright protection than are more fact-based works."

That use completely transformed the purpose and expressive content of the ad and chart, regardless of whether their physical text was changed.

The Ninth Circuit, emphasizing the purpose of the Copyright Act "to promote creativity, thereby benefitting the artist and the public alike," reasoned that the thumbnails did not "stifle artistic creativity," and, further, even "benefit [ed] the public by enhancing information-gathering techniques on the internet."