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Kelly wins against Arriba Soft
Appellate Court affirms US Copyright Law protects images located on the Internet

Copyright owners worldwide now have case law on their side in the battle against image search engines that display images on their sites without permission.

That is the crucial outcome of the Kelly v Arriba Soft decision handed down on February 6 by the Ninth Circuit Court of Appeals which ruled in favor of photographer Leslie Kelly in his copyright infringement case against Arriba Soft. The appellate court remanded the case back to the US District Court, Santa Ana, Calif., for determination of damages.

"Photographers everywhere should be applauding this decision," said ASMP president Dave Harp, who pointed out that ASMP has been supporting Kelly and his legal team from the time the case was filed in 1999. "This is a precedent setting decision and while we creators have seen it as a clear case of copyright infringement all along, it’s heartening to know we now have the law on our side," said Harp. "ASMP, along with other trade organizations, have supported Leslie Kelly and his legal team and it is results like this that highlight the need for unity in fighting such battles."

Harp also emphasized that ASMP had played a key role by initiating the participation of ASMP’s copyright counsel, Charles Ossola of the Washington, DC, firm Arnold & Porter, in the case after a district court had ruled in Arriba Soft’s favor. "Chuck, one of the most respected copyright attorneys in the country, spearheaded the appeals process before the Ninth Circuit, and on a pro bono basis. Photographers everywhere should appreciate the legal strength that ASMP can harness for critical cases like this."

" As has been reported before by ASMP’s general counsel Victor Perlman, this was an appeal of a decision in the US District Court in Southern California that held that Web site operators could scour the Internet, collect every photograph they could find, put those photographs on their sites for anyone to access, and deep link to the photographers' Web sites, without permission and without violating copyright law. If this decision was not reversed, every photograph on the Internet would have been fair game for fair use. Fortunately for all of us, the decision has been reversed, " said Harp.

Harp added that ASMP’s Legal Action Fund, a financial war chest built up largely by voluntary contributions from ASMP members, had been a valuable resource in this and other recent legal activity.

And as the plaintiff, Leslie Kelly, pointed out in a statement, Kelly v Arriba Soft will now take its place with other Internet copyright law decisions such as recent important cases won against Napster (music) and Tasini v NY Times (republication of news stories) and Jerry Greenberg v National Geographic (reuse of images on CD-ROM).

The appellate court ruled that by allowing the public to view Kelly’s copyrighted works while visiting Arriba’s web site, Arriba was creating a public display of Kelly’s work without his permission, and thus was infringing on his exclusive right to display that work. The court also ruled that the reproduction of Kelly’s images to use as thumbnails on Arriba’s search engine was fair use under the Copyright Act, a decision that was welcomed by the photographer himself.

Kelly, in a statement released from Huntington Beach., Calif., said the Arriba Soft’s action was "vicarious copyright infringement" and the court’s decision was not a surprise. "I am quite pleased to learn that my original case filed in April 1999 against Arriba Soft has come down in my favor. The Ninth Circuit Court of Appeals has determined the case as it was filed, a simple case of vicarious copyright infringement, by Arriba Soft, Inc., whose true use was disguised as an ‘image search engine’. I was not surprised by the wisdom of the Circuit Judges who reached the decision. I am quite pleased to see that copyright owners worldwide now have case law to enhance their protection from rogue start up image search engines, such as Arriba Soft's Arriba Vista Image Searcher and Diggit! Image Search, and other infringers that seek to make "easy millions" using intellectual property without license.

"I am also pleased to see the decision that image search engines can use thumbnail images under ‘fair us’ so long as they link directly to the webpage to show the image in its original context as it was intended by the website owner! This puts them on the same par as text engines and will enhance their usefulness for all concerned. To isolate images and present them outside the context of the original purpose of the website owner is now very clearly illegal!

"It should be carefully noted that this decision affirms that existing US Copyright Law protects images located on the Internet. Kelly v Arriba Soft will now take its place with other Internet copyright law decisions such as recent important cases won against Napster (music) and Tasini v NY Times (republication of news stories) and Jerry Greenberg v National Geographic (reuse of images on CD-ROM).

"I wish to thank my attorneys, Charles Ossola, Arnold & Porter, Washington, DC, who handled the appeal process before the Ninth Circuit Court of Appeals, Jule Sigall, Arnold & Porter, who assisted with the case, and to Steven L. Krongold, Arter & Hadden, Irvine, Calif., who prosecuted the case before the US District Court in Santa Ana.

"I also wish to acknowledge the strong support of creators of intellectual property worldwide who have been supportive of my actions. The list includes Vic Perlman, American Society of Media Photographers, Inc., Philadelphia, Steven Schubert, Graphic Artists Guild, New York, The Author’s Guild, Inc, North American Nature Photography Association, National Music Publishers' Association, The Harry Fox Agency, Inc., American Institute of Graphic Arts, American Society of Journalists and Authors, Visual Artists and Galleries Association, Inc., The National Writers Union, The Picture Agency Council of America, The Association of Medical Illustrators, and The Society of Illustrators," said Kelly.

Background information about this case and the decision is posted at http://netcopyrightlaw.com