Visual search engineers and “fair use”: Leslie Kelly v Arriba Soft Corp

The US Court of Appeals has issued its decision in the long running battle between the photographer Leslie Kelly and the Ditto.com visual search engine. The reproduction of Kelly’s images in the form of thumbnails is “fair use” and does not infringe copyright, but the display of full-sized images was not a fair use and infringed Kelly’s exclusive right to publicly display his copyright works.

Ditto.com indexes millions of images on the Internet by means of automated web-crawling technology. The search facility displays thumbnail images which match the search word. By clicking on a thumbnail the user could then view a large version of the same picture. This was done at various times by means of either “inline linking” or “framing”.

Inline linking involved importing the image from the web site where it resided, surrounded by Ditto.com’s text and advertising as though it were part of the Ditto.com site. Framing involved displaying in a window the full-sized image imported directly from the originating web site.

The decision is important not merely in the context of visual search engines but more generally. According to the judgment, no cases in the US had previously addressed the issue of whether inline linking or framing infringe a copyright owner’s public display rights. The situation in the light of the Ditto.com decision appears to be that this kind of activity will normally infringe copyright in the United States. However, although Ditto.com’s fair use defence failed on this aspect of the claim, there may be other situations where the defence would be available.

The Ditto.com decision has little direct bearing on the UK legal position because the principles of copyright law involved are different. The US doctrine of fair use is much broader than the UK fair dealing rules and the public display of artistic works is not an activity controlled under UK copyright law.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.