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Summaries of Fair Use Cases - Copyright Overview by Rich Stim - Stanford Copyright and Fair Use Center us digital millennium copyright act search engine

( Leibovitz v. Paramount Pictures Corp. , 137 F.3d 109 (2d Cir. N.Y. 1998).) Fair use. A pro-life video organization created two antiabortion videos by borrowing video clips from a pro-choice video and juxtaposing them with actual abortion footage. Important factors: The court characterized the pro-life videos as parodies despite the fact they did not meet the classic definition of a parody—something that humorously mimics or ridicules another’s work. In a unique holding, the court held that a parody need not be humorous, but may merely comment on, or criticize the original. Northland Family Planning Clinic v. Center for Bio-Ethical Reform , No. SACV 11-731 JVS (C.D. Cal., June 15, 2012). Not a fair use. An artist created a cover for a New Yorker magazine that presented a humorous view of geography through the eyes of a New York City resident. A movie company later advertised their film Moscow on the Hudson using a similar piece of artwork with similar elements. The artist sued and a court ruled that the movie company’s poster was not a fair use. Important factors: Why is this case different from the previous case involving the Leslie Nielsen/Annie Leibovitz parody? In the Leibovitz case, the use was a true parody, characterized by a juxtaposition of imagery that actually commented on or criticized the original. The Moscow on the Hudson movie poster did not create a parody; it simply borrowed the New Yorker’s parody (the typical New York City resident’s geographical viewpoint that New York City is the center of the world). ( Steinberg v. Columbia Pictures Industries, Inc. , 663 F.Supp. 706 (S.D. N.Y., 1987).) Not a fair use. An author mimicked the style of a Dr. Seuss book while retelling the facts of the O.J. Simpson murder trial in The Cat NOT in the Hat! A Parody by Dr. Juice. The Ninth Circuit Court of Appeals determined that the book was a satire, not a parody, because the book did not poke fun at or ridicule Dr. Seuss. Instead, it merely used the Dr. Seuss characters and style to tell the story of the murder. Important factors: The author’s work was nontransformative and commercial. ( Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc. , 109 F.3d 1394 (9th Cir. 1997).) In this Section: Copyright Overview (NOLO) Fair Use Summaries of Fair Use Cases

The content for the Copyright and Fair Use Overview section is from NOLO , with much of it taken from the book Getting Permission (October 2010 ) by Richard Stim . Thanks!

Next Page Previous Page Rich Stim Attorney at law, Nolo Legal Editor, Blogger — Dear Rich: Nolo’s Patent, Copyright and Trademark Blog, Author, Nolo Press

Website Twitter Facebook Google+ Posts Publishe hetllxdf. moncler outlet italyad on: April 4, 2013 Updated: April 10, 2017 12:51 pm PaulGillett

I’m not a lawyer, but I can tell you for sure his written work is protected by copyright. Some of it may be considered scenes a faire, which are the industry standard phrases he used. But he organized them in a certain way, and if you copied the 5 lines verbatim, you could be liable. I wouldn’t pay the $2500, but I would change your wording. Come on! Be creative.

Thedude3445

That sounds like a definite case of Fair Use. You’re using clips for commentary and criticism.

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On January 28, 2014, Stanford’s Program in Law, Science & Technology hosted the discussion, “Congratulations, you have an app – now what? App Development and Marketing from A-Z.” The discussion featured a panel of high level, experienced practitioner who provide tips, checklists and a road map for addressing legal considerations relating to mobile apps, including best practices for mobile TOU and Privacy Policies, platform considerations and much more.

Tweets by @FairlyUsed Recent Posts Stanford Copyright & Fair Use – Key Overview Updates April 11, 2017 Future of Libraries – Need First Sale for ebooks February 19, 2017 protect your site from copyright lawsuits November 16, 2016 Happy Birthday – ruling plus full court docket filings September 25, 2015 How much of a photo do you need to alter to avoid copyright infringement? Hint: Cheshire Cat December 22, 2014 Secondary Content
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Fair use From Wikipedia, the free encyclopedia Jump to: navigation , search For fair use in trademark law, see Fair use (U.S. trademark law) . For the broadband bandwidth management policy, see Fair Access Policy . For fair use of copyrighted works on Wikipedia, see Wikipedia:Non-free content Intellectual property and Intellectual rights law Primary rights Copyright Patent Trademark Trade dress Trade secret Geographical indication Sui generis rights Authors' rights Database right Indigenous intellectual property Industrial design right Integrated circuit layout design protection Moral rights Plant breeders' rights Related rights Supplementary protection certificate Utility model Related topics Abandonware Anti-copyright Bioprospecting Limitations and exceptions to copyright ( Fair dealing Fair use Right to quote ) Orphan works Public domain Societal views Outline of intellectual property v t e

Fair use is a doctrine in the law of the United States that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is of the limitations to copyright intended to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing certain limited uses that might otherwise be considered infringement. Examples of fair use in United States copyright law include commentary, search engines, criticism, parody , news reporting, research, and scholarship. Fair use provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor test .

The term "fair use" originated in the United States. [1] Although related, the limitations and exceptions to copyright for teaching and library archiving in the U.S. are located in a different section of the statute. A similar-sounding principle, fair dealing , exists in some other common law jurisdictions but in fact it is more similar in principle to the enumerated exceptions found under civil law systems. Civil law jurisdictions have other limitations and exceptions to copyright.

The Supreme Court has traditionally characterized fair use as an affirmative defense , but in Lenz v. Universal Music Corp. (2015) [2] (the "dancing baby" case), the U.S. Court of Appeals for the Ninth Circuit concluded that fair use was not merely a defense to an infringement claim, but was an expressly authorized right, and an exception to the exclusive rights granted to the author of a creative work by copyright law: "Fair use is therefore distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright."

Contents

1 History 2 U.S. fair use factors 2.1 1. Purpose and character of the use 2.2 2. Nature of the copyrighted work 2.3 3. Amount and substantiality 2.4 4. Effect upon work's value 2.5 Other factors 3 U.S. fair use procedure and practice 4 Fair use in particular areas 4.1 Fair use and text and data mining 4.2 Fair use and parody 4.3 Fair use on the Internet 4.4 Fair use and reverse engineering 4.5 Fair use and file sharing 4.6 Fair use and professional communities 4.7 Fair use and music sampling 4.8 Fair use and social media 4.9 Fair use and documentary 5 Influence internationally 5.1 Fair use 5.1.1 Israel 5.1.2 Poland 5.1.3 South Korea 5.2 Fair dealing 5.2.1 Australia 5.2.2 Canada 5.2.3 United Kingdom 6 Policy arguments about fair use 6.1 The economic benefit of fair use 7 Fair Use Week 8 See also 9 References 10 Further reading 11 External links

History [ edit ]

The 1709 Statute of Anne , an act of the Parliament of Great Britain , created copyright law to replace a system of private ordering enforced by the Stationers' Company . The Statute of Anne did not provide for legal unauthorized use of material protected by copyright. In Gyles v Wilcox , [3] the Court of Chancery established the doctrine of "fair abridgement," which permitted unauthorized abridgement of copyrighted works under certain circumstances. Over time, this doctrine evolved into the modern concepts of fair use and fair dealing . Fair use was a common-law doctrine in the U.S. until it was incorporated into the Copyright Act of 1976 , 17 U.S.C.   § 107 .

In response to perceived over-expansion of copyrights, several electronic civil liberties and free expression organizations began in the 1990s to add fair use cases to their dockets and concerns. These include the Electronic Frontier Foundation ("EFF"), the American Civil Liberties Union , the National Coalition Against Censorship , the American Library Association , numerous clinical programs at law schools, and others. The " Chilling Effects " archive was established in 2002 as a coalition of several law school clinics and the EFF to document the use of cease and desist letters. Most recently, in 2006, Stanford University began an initiative called "The Fair Use Project " (FUP) to help artists, particularly filmmakers, fight lawsuits brought against them by large corporations.

U.S. fair use factors [ edit ]

17 U.S.C.   § 107

Notwithstanding the provisions of sections 17 U.S.C.   § 106 and 17 U.S.C.   § 106A , the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. [4]

Joseph Story wrote the opinion in Folsom v. Marsh .

The four factors of analysis for fair use set forth above derive from the opinion of Joseph Story in Folsom v. Marsh , [1] in which the defendant had copied 353 pages from the plaintiff's 12-volume biography of George Washington in order to produce a separate two-volume work of his own. [5] The court rejected the defendant's fair use defense with the following explanation:

[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy ...

In short, we must often ... look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.

The statutory fair use factors quoted above come from the Copyright Act of 1976, which is codified at 17 U.S.C.   § 107 . They were intended by Congress to restate, but not replace, the prior judge-made law. As Judge Pierre N. Leval has written, the statute does not "define or explain [fair use's] contours or objectives." While it "leav[es] open the possibility that other factors may bear on the question, the statute identifies none." [6] That is, courts are entitled to consider other factors in addition to the four statutory factors.

1. Purpose and character of the use [ edit ]

The first factor is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new.

A key consideration in recent fair use cases is the extent to which the use is transformative . In the 1994 decision Campbell v. Acuff-Rose Music Inc , [7] the U.S. Supreme Court held that when the purpose of the use is transformative, this makes the first factor more likely to favor fair use. [8] Before the Campbell decision, federal Judge Pierre Leval argued that transformativeness is central to the fair use analysis in his 1990 article, Toward a Fair Use Standard . [6] Blanch v. Koons is another example of a fair use case that focused on transformativeness. In 2006, Jeff Koons used a photograph taken by commercial photographer Andrea Blanch in a collage painting. [9] Koons appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. Koons prevailed in part because his use was found transformative under the first fair use factor.

The Campbell case also addressed the subfactor mentioned in the quotation above, "whether such use is of a commercial nature or is for nonprofit educational purposes." In an earlier case, Sony Corp. of America v. Universal City Studios, Inc. , the Supreme Court had stated that "every commercial use of copyrighted material is presumptively . . . unfair." In Campbell , the court clarified that this is not a "hard evidentiary presumption" and that even the tendency that commercial purpose will "weigh against a finding of fair use . . . will vary with the context." The Campbell court held that hip-hop group 2 Live Crew 's parody of the song " Oh, Pretty Woman " was fair use, even though the parody was sold for profit. Thus, having a commercial purpose does not preclude a use from being found fair, even though it makes it less likely. [10]

Likewise, the noncommercial purpose of a use makes it more likely to be found a fair use, but it does not make it a fair use automatically. [10] For instance, in L.A. Times v. Free Republic , the court found that the noncommercial use of Los Angeles Times content by the Free Republic Web site was not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for. Richard Story similarly ruled in Code Revision Commission and State of Georgia v. Public.Resource.Org , Inc. that despite the fact that it is a non-profit and didn't sell the work, the service profited from its unauthorized publication of the Official Code of Georgia Annotated because of "the attention, recognition, and contributions" it received in association with the work. [11]

Another factor is whether the use fulfills any of the preamble purposes, also mentioned in the legislation above, as these have been interpreted as "illustrative" of transformative use. [12]

It is arguable, given the dominance of a rhetoric of the "transformative" in recent fair use determinations, that the first factor and transformativeness in general have become the most important parts of fair use.

2. Nature of the copyrighted work [ edit ] The unpublished nature of J. D. Salinger 's letters was a key issue in the court's analysis of the second fair use factor in Salinger v. Random House .

Although the Supreme Court has ruled that the availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it is fictional or non-fictional. [13]

To prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are not protected by copyright —only their particular expression or fixation merits such protection. On the other hand, the social usefulness of freely available information can weigh against the appropriateness of copyright for certain fixations. The Zapruder film of the assassination of President Kennedy , for example, was purchased and copyrighted by Time magazine. Yet its copyright was not upheld, in the name of the public interest, when Time tried to enjoin the reproduction of stills from the film in a history book on the subject in Time Inc v. Bernard Geis Associates . [14]

In the decisions of the Second Circuit in Salinger v. Random House [15] and in New Era Publications Int'l v. Henry Holt & Co , [16] the aspect of whether the copied work has been previously published was considered crucial, assuming the right of the original author to control the circumstances of the publication of his work or preference not to publish at all. However, Judge Pierre N. Leval views this importation of certain aspects of France's droit moral d'artiste ( moral rights of the artist) into American copyright law as "bizarre and contradictory" because it sometimes grants greater protection to works that were created for private purposes that have little to do with the public goals of copyright law, than to those works that copyright was initially conceived to protect. [6] This is not to claim that unpublished works, or, more specifically, works not intended for publication, do not deserve legal protection, but that any such protection should come from laws about privacy, rather than laws about copyright. The statutory fair use provision was amended in response to these concerns by adding a final sentence: "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

3. Amount and substantiality [ edit ] The Ninth Circuit has held that the use of thumbnails in image search engines is fair use.

The third factor assesses the amount and substantiality of the copyrighted work that has been used. In general, the less that is used in relation to the whole, the more likely the use will be considered fair.

Using most or all of a work does not bar a finding of fair use. It simply makes the third factor less favorable to the defendant. For instance, in Sony Corp. of America v. Universal City Studios, Inc. copying entire television programs for private viewing was upheld as fair use, at least when the copying is done for the purposes of time-shifting . In Kelly v. Arriba Soft Corporation, the Ninth Circuit held that copying an entire photo to use as a thumbnail in online search results did not even weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use".

However, even the use of a small percentage of a work can make the third factor unfavorable to the defendant, because the "substantiality" of the portion used is considered in addition to the amount used. For instance, in Harper & Row v. Nation Enterprises , , [17] the U.S. Supreme Court held that a news article's quotation of fewer than 400 words from President Ford 's 200,000-word memoir was sufficient to make the third fair use factor weigh against the defendants, because the portion taken was the "heart of the work." This use was ultimately found not to be fair. [17]

4. Effect upon work's value [ edit ]

The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his or her original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests on the copyright owner, who must demonstrate the impact of the infringement on commercial use of the work.

For example, in Sony Corp v. Universal City Studios , [18] the copyright owner, Universal , failed to provide any empirical evidence that the use of Betamax had either reduced their viewership or negatively impacted their business. In Harper & Row, the case regarding President Ford's memoirs, the Supreme Court labeled the fourth factor "the single most important element of fair use" and it has enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court's more recent announcement in Campbell v. Acuff-Rose Music Inc [7] that "all [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright" has helped modulate this emphasis in interpretation.

In evaluating the fourth factor, courts often consider two kinds of harm to the potential market for the original work. First, courts consider whether the use in question acts as a direct market substitute for the original work. In Campbell , the Supreme Court stated that "when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur". In one instance, a court ruled that this factor weighed against a defendant who had made unauthorized movie trailers for video retailers, since his trailers acted as direct substitutes for the copyright owner's official trailers. [19]

Second, courts also consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a licensing market. This consideration has weighed against commercial copy shops that make copies of articles in course-packs for college students, when a market already existed for the licensing of course-pack copies. [20]

Courts recognize that certain kinds of market harm do not negate fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield a work against adverse criticism.

Other factors [ edit ]

As explained by Judge Leval, courts are permitted to include additional factors in their analysis. [6]

One such factor is acknowledgement of the copyrighted source. Giving the name of the photographer or author may help, but it does not automatically make a use fair. While plagiarism and copyright infringement are related matters, they are not identical. Plagiarism (using someone's words, ideas, images, etc. without acknowledgment) is a matter of professional ethics. Copyright is a matter of law, and protects exact expression, not ideas. One can plagiarize even a work that is not protected by copyright, for example by passing off a line from Shakespeare as one's own. Conversely, attribution prevents accusations of plagiarism, but it does not prevent infringement of copyright. For example, reprinting a copyrighted book without permission, while citing the original author, would be copyright infringement but not plagiarism.

U.S. fair use procedure and practice [ edit ]

The U.S. Supreme Court described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc. [7] This means that in litigation on copyright infringement, the defendant bears the burden of raising and proving that the use was fair and not an infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a " prima facie " case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant's work borrowed only a small amount , for instance, then the plaintiff cannot make out a prima facie case of infringement, and the defendant need not even raise the fair use defense. In addition, fair use is only one of many limitations, exceptions, and defenses to copyright infringement. Thus, a prima facie case can be defeated without relying on fair use. For instance, the Audio Home Recording Act establishes that it is legal, using certain technologies, to make copies of audio recordings for non-commercial personal use. [21]

Some copyright owners claim infringement even in circumstances where the fair use defense would likely succeed, in hopes that the user will refrain from the use rather than spending resources in their defense. Strategic lawsuit against public participation (SLAPP) cases such as these—alleging copyright infringement, patent infringement, defamation, or libel—often come into conflict with the defendant's right to freedom of speech , and has prompted some jurisdictions to pass anti-SLAPP legislation which raises the plaintiff's burdens and risk.

Although fair use ostensibly permits certain uses without liability, many content creators and publishers try to avoid a potential court battle by seeking a legally unnecessary license from copyright owners for any use of non-public domain material, even in situations where a fair use defense would likely succeed. The simple reason is that the license terms negotiated with the copyright owner may be much less expensive than defending against a copyright suit, or having the mere possibility of a lawsuit threaten the publication of a work in which a publisher has invested significant resources.

Fair use rights take precedence over the author's interest. Thus the copyright holder cannot use a non-binding disclaimer, or notification, to revoke the right of fair use on works. However, binding agreements such as contracts or licence agreements may take precedence over fair use rights. [22]

The practical effect of the fair use doctrine is that a number of conventional uses of copyrighted works are not considered infringing. For instance, quoting from a copyrighted work in order to criticize or comment upon it or teach students about it, is considered a fair use. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though they may sell their review commercially; but a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.

Fair use is decided on a case by case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. Even repeating an identical act at a different time can make a difference due to changing social, technological, or other surrounding circumstances. [8] [23]

Fair use in particular areas [ edit ]

Fair use and text and data mining [ edit ]

The transformative nature of computer based analytical processes such as text mining , web mining and data mining has led many to form the view that such uses would be protected under fair use. This view was substantiated by the rulings of Judge Denny Chin in Authors Guild, Inc. v. Google, Inc. , a case involving mass digitisation of millions of books from research library collections. As part of the ruling that found the book digitisation project was fair use, the judge stated "Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas". [24] [25]

Text and data mining was subject to further review in Authors Guild v. HathiTrust , a case derived from the same digitization project mentioned above. Judge Harold Baer , in finding that the defendant's uses were transformative, stated that 'the search capabilities of the [HathiTrust Digital Library] have already given rise to new methods of academic inquiry such as text mining." [26] [27]

Fair use and parody [ edit ]

Producers or creators of parodies of a copyrighted work have been sued for infringement by the targets of their ridicule, even though such use may be protected as fair use. These fair use cases distinguish between parodies, which use a work in order to poke fun at or comment on the work itself and satire , or comment on something else. Courts have been more willing to grant fair use protections to parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use factors.

For example, when Tom Forsythe appropriated Barbie dolls for his photography project "Food Chain Barbie" (depicting several copies of the doll naked and disheveled and about to be baked in an oven, blended in a food mixer, and the like), Mattel lost its copyright infringement lawsuit against him because his work effectively parodies Barbie and the values she represents. [28] In Rogers v. Koons , Jeff Koons tried to justify his appropriation of Art Rogers' photograph "Puppies" in his sculpture "String of Puppies" with the same parody defense. Koons lost because his work was not presented as a parody of Rogers' photograph in particular, but as a satire of society at large. This was insufficient to render the use fair. [29]

In Campbell v. Acuff-Rose Music Inc [7] the U.S. Supreme Court recognized parody as a potential fair use, even when done for profit. Roy Orbison 's publisher, Acuff-Rose Music , had sued 2 Live Crew in 1989 for their use of Orbison's " Oh, Pretty Woman " in a mocking rap version with altered lyrics. The Supreme Court viewed 2 Live Crew's version as a ridiculing commentary on the earlier work, and ruled that when the parody was itself the product rather than mere advertising, commercial nature did not bar the defense. The Campbell court also distinguished parodies from satire , which they described as a broader social critique not intrinsically tied to ridicule of a specific work and so not deserving of the same use exceptions as parody because the satirist's ideas are capable of expression without the use of the other particular work.

A number of appellate decisions have recognized that a parody may be a protected fair use, including the Second ( Leibovitz v. Paramount Pictures Corp. ); the Ninth ( Mattel v. Walking Mountain Productions ); and the Eleventh Circuits ( Suntrust Bank v. Houghton Mifflin Co. ). In the 2001 Suntrust Bank case, Suntrust Bank and the Margaret Mitchell estate unsuccessfully brought suit to halt the publication of The Wind Done Gone , which reused many of the characters and situations from Gone with the Wind but told the events from the point of view of the enslaved people rather than the slaveholders. The Eleventh Circuit , applying Campbell , found that The Wind Done Gone was fair use and vacated the district court's injunction against its publication.

Cases in which a satirical use was found to be fair include Blanch v. Koons and Williams v. Columbia Broadcasting Systems . [8]

Fair use on the Internet [ edit ]

A U.S. court case from 2003, Kelly v. Arriba Soft Corp. , provides and develops the relationship between thumbnails , inline linking and fair use. In the lower District Court case on a motion for summary judgment , Arriba Soft's use of thumbnail pictures and inline linking from Kelly's website in Arriba Soft's image search engine was found not to be fair use. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation , who argued that it was fair use.

On appeal, the Ninth Circuit Court of Appeals found in favour of the defendant, Arriba Soft. In reaching its decision, the court utilized the statutory four-factor analysis. First, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution as the original artwork was.