Case Note: Kelly v Arriba Brief Facts: Arriba is a Search Engine which uses in line linking to provide lower

resolution images of photographs found on the internet. In order to find these photographs it uses certain web crawler software to index the websites on the internet. The plaintiff is one Kelly who sued for infringement of his copyright as thirty five of his images were indexed by the search engine without this consent. The lower court granted summary judgment. The case has come for appeal. Issue Whether the use of the images by the search engine constituted Fair Use? In order to determine the court went into the following: 1. Nature and purpose of work The plaintiff contended: 1. Commercial Purpose as the website was using his work to make money. 2. Lack of a Transformative Nature as the exact image had been copied by the defendant with little or no modification. Court Held: 1. It was not highly exploitative as millions of images were indexed along with the plaintiff's images. This was not highly exploitative even though this work was commercial in nature. 2. It was transformative as it was used for information purposes and the image copy was of a low resolution. The court held that since the purpose was different it was enough to cause the work to have a transformative character.