FOR PUBLICATION
     UNITED STATES COURT OF APPEALS
           FOR THE NINTH CIRCUIT
 
LESLIE A. KELLY, an individual,          
dba Les Kelly Publications, dba
Les Kelly Enterprises, dba Show                  No. 00-55521
Me The Gold,                                       D.C. No.
                 Plaintiff-Appellant,   CV-99-00560-GLT
                  v.                             ORDER AND
ARRIBA SOFT CORPORATION, AN                       OPINION
ILLINOIS CORPORATION,
                Defendant-Appellee.  
        Appeal from the United States District Court
            for the Central District of California
          Gary L. Taylor, District Judge, Presiding

                        Argued and Submitted
         September 10, 2001-Pasadena, California

                Opinion Filed February 6, 2002
                   Withdrawn July 7, 2003
                        Re-filed July 7, 2003

      Before: Betty B. Fletcher, Thomas G. Nelson, and
             Marsha S. Berzon, Circuit Judges.

           Opinion by Judge Thomas G. Nelson





                                9059



                  KELLY v. ARRIBA SOFT CORP.              9063


                             COUNSEL

Charles D. Ossola, Arnold & Porter, Washington, D.C., for
the plaintiff-appellant. 

Steven Krongold, Arter and Hadden, Irvine, California, for
the plaintiff-appellant. 

Judith B. Jennison, Perkins Coie LLP, San Francisco, Califor-
nia, for the defendant-appellee. 

Victor S. Perlman, American Society of Media Phographers,
Inc., Philadelphia, Pennsylvania, for amici curiae National
Music Publishers' Association. 

Laura W. Brill and Elliot Brown, Irell & Manella, L.L.P., Los
Angeles, California, for amici curiae AltaVista Co., Google,
Inc., and Yahoo! Inc. 

Fred von Lohmann, Electronic Frontier Foundation, San Fran-
cisco, California, for amici curiae Electronic Frontier Founda-
tion.


                             ORDER

  The Opinion filed February 6, 2002, slip op. 1953, and
appearing at 280 F.3d 934 (9th Cir. 2002), is withdrawn. It



9064                 KELLY v. ARRIBA SOFT CORP.
may not be cited as precedent by or to this court or any dis-
trict court of the Ninth Circuit. 

  Therefore, Appellee's petition for rehearing and the petition
for rehearing en banc are DENIED as moot.


                               OPINION

T.G. NELSON, Circuit Judge: 

  This case involves the application of copyright law to the
vast world of the internet and internet search engines. The
plaintiff, Leslie Kelly, is a professional photographer who has
copyrighted many of his images of the American West. Some
of these images are located on Kelly's web site or other web
sites with which Kelly has a license agreement. The defen-
dant, Arriba Soft Corp.,1 operates an internet search engine
that displays its results in the form of small pictures rather
than the more usual form of text. Arriba obtained its database
of pictures by copying images from other web sites. By click-
ing on one of these small pictures, called "thumbnails," the
user can then view a large version of that same picture within
the context of the Arriba web page. 

  When Kelly discovered that his photographs were part of
Arriba's search engine database, he brought a claim against
Arriba for copyright infringement. The district court found
that Kelly had established a prima facie case of copyright
infringement based on Arriba's unauthorized reproduction
and display of Kelly's works, but that this reproduction and
display constituted a non-infringing "fair use" under Section
107 of the Copyright Act. Kelly appeals that decision, and we
affirm in part and reverse in part. The creation and use of the
thumbnails in the search engine is a fair use. However, the

  1Arriba Soft has changed its name since the start of this litigation. It is
now known as "Ditto.com." 



                  KELLY v. ARRIBA SOFT CORP.                9065
district court should not have decided whether the display of
the larger image is a violation of Kelly's exclusive right to
publicly display his works. Thus, we remand for further pro-
ceedings consistent with this opinion. 

                               I.

  The search engine at issue in this case is unconventional in
that it displays the results of a user's query as "thumbnail"
images. When a user wants to search the internet for informa-
tion on a certain topic, he or she types a search term into a
search engine, which then produces a list of web sites that
contain information relating to the search term. Normally, the
list of results is in text format. The Arriba search engine, how-
ever, produces its list of results as small pictures. 

  To provide this service, Arriba developed a computer pro-
gram that "crawls" the web looking for images to index. This
crawler downloads full-sized copies of the images onto Arri-
ba's server. The program then uses these copies to generate
smaller, lower-resolution thumbnails of the images. Once the
thumbnails are created, the program deletes the full-sized
originals from the server. Although a user could copy these
thumbnails to his computer or disk, he cannot increase the
resolution of the thumbnail; any enlargement would result in
a loss of clarity of the image. 

  The second component of the Arriba program occurs when
the user double-clicks on the thumbnail. From January 1999
to June 1999, clicking on the thumbnail produced the "Images
Attributes" page. This page used in-line linking to display the
original full-sized image, surrounded by text describing the
size of the image, a link to the original web site, the Arriba
banner, and Arriba advertising. 

  In-line linking allows one to import a graphic from a source
website and incorporate it in one's own website, creating the
appearance that the in-lined graphic is a seamless part of the



9066                KELLY v. ARRIBA SOFT CORP.
second web page.2 The in-line link instructs the user's
browser to retrieve the linked-to image from the source web-
site and display it on the user's screen, but does so without
leaving the linking document.3 Thus, the linking party can
incorporate the linked image into its own content. As a result,
although the image in Arriba's Images Attributes page came
directly from the originating web site and was not copied onto
Arriba's server, the user would not realize that the image
actually resided on another web site. 

  From July 1999 until sometime after August 2000, the
results page contained thumbnails accompanied by two links:
"Source" and "Details." The "Details" link produced a screen
similar to the Images Attributes page but with a thumbnail
rather than the full-sized image. Alternatively, by clicking on
the "Source" link or the thumbnail from the results page, the
site produced two new windows on top of the Arriba page.
The window in the forefront contained solely the full-sized
image. This window partially obscured another window,
which displayed a reduced-size version of the image's origi-
nating web page. Part of the Arriba web page was visible
underneath both of these new windows.4 

  In January 1999, Arriba's crawler visited web sites that
contained Kelly's photographs. The crawler copied thirty-five
of Kelly's images to the Arriba database. Kelly had never
given permission to Arriba to copy his images and objected
when he found out that Arriba was using them. Arriba deleted
the thumbnails of images that came from Kelly's own web
sites and placed those sites on a list of sites that it would not

  2Mark Sableman, Link Law Revisited: Internet Linking Law at Five
Years, 16 BERKELEY TECH. L.J. 1273, 1297 (2001). 
  3Stacey L. Dogan, Infringement Once Removed: The Perils of Hyper-
linking to Infringing Content, 87 IOWA L. REV. 829, 839 n.32 (2002). 
  4Currently, when a user clicks on the thumbnail, a window of the home
page of the image appears on top of the Arriba page. There is no window
just containing the image. 



                    KELLY v. ARRIBA SOFT CORP.                      9067
crawl in the future. Several months later, Arriba received
Kelly's complaint of copyright infringement, which identified
other images of his that came from third-party web sites.
Arriba subsequently deleted those thumbnails and placed
those third-party sites on a list of sites that it would not crawl
in the future. 

  The district court granted summary judgment in favor of
Arriba. Kelly's motion for partial summary judgment asserted
that Arriba's use of the thumbnail images violated his display,
reproduction, and distribution rights. Arriba cross-moved for
summary judgment. For the purposes of the motion, Arriba
conceded that Kelly established a prima facie case of infringe-
ment. However, it limited its concession to the violation of the
display and reproduction rights as to the thumbnail images.
Arriba then argued that its use of the thumbnail images was
a fair use. 

  The district court did not limit its decision to the thumbnail
images alone. The court granted summary judgment to Arriba,
finding that its use of both the thumbnail images and the full-
size images was fair. In doing so, the court broadened the
scope of Kelly's original motion to include a claim for
infringement of the full-size images. The court also broadened
the scope of Arriba's concession to cover the prima facie case
for both the thumbnail images and the full-size images. The
court determined that two of the fair use factors weighed
heavily in Arriba's favor. Specifically, the court found that
the character and purpose of Arriba's use was significantly
transformative and the use did not harm the market for or
value of Kelly's works. Kelly now appeals this decision. 

                                   II.

  We review a grant of summary judgment de novo.5 We also

  5Los Angeles News Serv. v. Reuters Television Int'l. Ltd., 149 F.3d 987,
993 (9th Cir. 1998). 



9068                 KELLY v. ARRIBA SOFT CORP.
review the court's finding of fair use, which is a mixed ques-
tion of law and fact, by this same standard.6 "In doing so, we
must balance the nonexclusive factors set out in 17 U.S.C.
 107."7 

  The district court's decision in this case involves two dis-
tinct actions by Arriba that warrant analysis. The first action
consists of the reproduction of Kelly's images to create the
thumbnails and the use of those thumbnails in Arriba's search
engine. The second action involves the display of Kelly's
larger images when the user clicks on the thumbnails. We
conclude that, as to the first action, the district court correctly
found that Arriba's use was fair. However, as to the second
action, we conclude that the district court should not have
reached the issue because neither party moved for summary
judgment as to the full-size images and Arriba's response to
Kelly's summary judgment motion did not concede the prima
facie case for infringement as to those images. 

                                 A.

  An owner of a copyright has the exclusive right to repro-
duce, distribute, and publicly display copies of the work.8 To
establish a claim of copyright infringement by reproduction,
the plaintiff must show ownership of the copyright and copy-
ing by the defendant.9 As to the thumbnails, Arriba conceded
that Kelly established a prima facie case of infringement of
Kelly's reproduction rights. 

  [1] A claim of copyright infringement is subject to certain

  6Id. 

  7Id. 

  817 U.S.C.  106. 

  9Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151
(9th Cir. 1986) (quoting 3 M. Nimmer & D. Nimmer, Nimmer on Copy-
right  13.01 (1985)). 



                       KELLY v. ARRIBA SOFT CORP.                      9069
statutory exceptions, including the fair use exception.10 This
exception "permits courts to avoid rigid application of the
copyright statute when, on occasion, it would stifle the very
creativity which that law is designed to foster."11 The statute
sets out four factors to consider in determining whether the
use in a particular case is a fair use.12 We must balance these
factors in light of the objectives of copyright law, rather than
view them as definitive or determinative tests.13 We now turn
to the four fair use factors. 

   1. Purpose and character of the use. 

   [2] The Supreme Court has rejected the proposition that a
commercial use of the copyrighted material ends the inquiry
under this factor.14 Instead, 

          [t]he central purpose of this investigation is to see
          . . . whether the new work merely supersede[s] the
          objects of the original creation, or instead adds
          something new, with a further purpose or different
          character, altering the first with new expression,
          meaning, or message; it asks, in other words,
          whether and to what extent the new work is transforma-
          tive.15 

  1017 U.S.C.  106, 107. 

  11Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394,
1399 (9th Cir. 1997) (internal quotation marks omitted). 
  12The four factors are: (1) the purpose and character of the use, includ-
ing whether such use is of a commercial nature or is for nonprofit educa-
tional purposes; (2) the nature of the copyrighted work; (3) the amount and
substantiality of the portion used in relation to the copyrighted work as a
whole; and (4) the effect of the use upon the potential market for or value
of the copyrighted work. 17 U.S.C.  107. 
  13Dr. Seuss, 109 F.3d at 1399. 

  14Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). 

  15Id. (internal quotation marks and citation omitted) (alteration in origi-
nal). 



9070                KELLY v. ARRIBA SOFT CORP.
The more transformative the new work, the less important the
other factors, including commercialism, become.16 

  [3] There is no dispute that Arriba operates its web site for
commercial purposes and that Kelly's images were part of
Arriba's search engine database. As the district court found,
while such use of Kelly's images was commercial, it was
more incidental and less exploitative in nature than more tra-
ditional types of commercial use.17 Arriba was neither using
Kelly's images to directly promote its web site nor trying to
profit by selling Kelly's images. Instead, Kelly's images were
among thousands of images in Arriba's search engine data-
base. Because the use of Kelly's images was not highly
exploitative, the commercial nature of the use weighs only
slightly against a finding of fair use. 

  The second part of the inquiry as to this factor involves the
transformative nature of the use. We must determine if Arri-
ba's use of the images merely superseded the object of the
originals or instead added a further purpose or different charac-
ter.18 We find that Arriba's use of Kelly's images for its
thumbnails was transformative. 

  [4] Although Arriba made exact replications of Kelly's
images, the thumbnails were much smaller, lower-resolution
images that served an entirely different function than Kelly's
original images. Kelly's images are artistic works intended to
inform and to engage the viewer in an aesthetic experience.
His images are used to portray scenes from the American
West in an aesthetic manner. Arriba's use of Kelly's images
in the thumbnails is unrelated to any aesthetic purpose. Arri-

  16Id. 

  17See, e.g., A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015
(9th Cir. 2001) ("[C]ommercial use is demonstrated by a showing that
repeated and exploitative unauthorized copies of copyrighted works were
made to save the expense of purchasing authorized copies."). 
  18Campbell, 510 U.S. at 579. 



                      KELLY v. ARRIBA SOFT CORP.                  9071
ba's search engine functions as a tool to help index and
improve access to images on the internet and their related web
sites. In fact, users are unlikely to enlarge the thumbnails and
use them for artistic purposes because the thumbnails are of
much lower-resolution than the originals; any enlargement
results in a significant loss of clarity of the image, making
them inappropriate as display material. 

  Kelly asserts that because Arriba reproduced his exact
images and added nothing to them, Arriba's use cannot be
transformative. Courts have been reluctant to find fair use
when an original work is merely retransmitted in a different
medium.19 Those cases are inapposite, however, because the
resulting use of the copyrighted work in those cases was the
same as the original use. For instance, reproducing music CDs
in computer MP3 format does not change the fact that both
formats are used for entertainment purposes. Likewise, repro-
ducing news footage into a different format does not change
the ultimate purpose of informing the public about current
affairs. 

  Even in Infinity Broadcast Corp. v. Kirkwood,20 where the
retransmission of radio broadcasts over telephone lines was
for the purpose of allowing advertisers and radio stations to
check on the broadcast of commercials or on-air talent, there
was nothing preventing listeners from subscribing to the ser-
vice for entertainment purposes. Even though the intended
purpose of the retransmission may have been different from
the purpose of the original transmission, the result was that

  19See Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir.
1998) (concluding that retransmission of radio broadcast over telephone
lines is not transformative); UMG Recordings, Inc. v. MP3.com, Inc., 92
F. Supp. 2d 349, 351 (S.D.N.Y. 2000) (finding that reproduction of audio
CD into computer MP3 format does not transform the work); Los Angeles
News Serv., 149 F.3d at 993 (finding that reproducing news footage with-
out editing the footage "was not very transformative"). 
  20150 F.3d 104. 



9072                  KELLY v. ARRIBA SOFT CORP.
people could use both types of transmissions for the same pur-
pose. 

   [5] This case involves more than merely a retransmission
of Kelly's images in a different medium. Arriba's use of the
images serves a different function than Kelly's use -
improving access to information on the internet versus artistic
expression. Furthermore, it would be unlikely that anyone
would use Arriba's thumbnails for illustrative or aesthetic
purposes because enlarging them sacrifices their clarity.
Because Arriba's use is not superseding Kelly's use but,
rather, has created a different purpose for the images, Arriba's
use is transformative. 

   Comparing this case to two recent cases in the Ninth and
First Circuits reemphasizes the functionality distinction. In
Worldwide Church of God v. Philadelphia Church of God,
Inc.,21 we held that copying a religious book to create a new
book for use by a different church was not transformative.22
The second church's use of the book was merely to make use
of the same book for another church audience. The court
noted that "where the use is for the same intrinsic purpose as
[the copyright holder's] . . . such use seriously weakens a
claimed fair use."23 

   On the other hand, in Nez v. Caribbean International
News Corp.,24 the First Circuit found that copying a photo-
graph that was intended to be used in a modeling portfolio
and using it instead in a news article was a transformative use.25
By putting a copy of the photograph in the newspaper, the
work was transformed into news, creating a new meaning or

  21227 F.3d 1110 (9th Cir. 2000). 

  22Id. at 1117. 

  23Id. (internal quotation marks omitted) (alteration and ellipses in origi-
nal). 
  24235 F.3d 18 (1st Cir. 2000). 

  25Id. at 22-23. 



                     KELLY v. ARRIBA SOFT CORP.                    9073
purpose for the work. The use of Kelly's images in Arriba's
search engine is more analogous to the situation in Nez
because Arriba has created a new purpose for the images and
is not simply superseding Kelly's purpose. 

  The Copyright Act was intended to promote creativity,
thereby benefitting the artist and the public alike. To preserve
the potential future use of artistic works for purposes of teach-
ing, research, criticism, and news reporting, Congress created
the fair use exception.26 Arriba's use of Kelly's images pro-
motes the goals of the Copyright Act and the fair use excep-
tion. The thumbnails do not stifle artistic creativity because
they are not used for illustrative or artistic purposes and there-
fore do not supplant the need for the originals. In addition,
they benefit the public by enhancing information-gathering
techniques on the internet. 

  [6] In Sony Computer Entertainment America, Inc. v. Bleem,27
we held that when Bleem copied "screen shots" from Sony
computer games and used them in its own advertising, it was
a fair use.28 In finding that the first factor weighed in favor of
Bleem, we noted that "comparative advertising redounds
greatly to the purchasing public's benefit with very little cor-
responding loss to the integrity of Sony's copyrighted materi-
al."29 Similarly, this first factor weighs in favor of Arriba due
to the public benefit of the search engine and the minimal loss
of integrity to Kelly's images. 

  2617 U.S.C.  107 ("[T]he fair use of a copyrighted work . . . for pur-
poses such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright."); see also Campbell, 510 U.S. at 576-77. 
  27214 F.3d 1022 (9th Cir. 2000). 

  28Id. at 1029. 

  29Id. at 1027. 



9074                 KELLY v. ARRIBA SOFT CORP.
  2. Nature of the copyrighted work. 

   [7] "Works that are creative in nature are closer to the core
of intended copyright protection than are more fact-based
works."30 Photographs that are meant to be viewed by the
public for informative and aesthetic purposes, such as Kelly's,
are generally creative in nature. The fact that a work is pub-
lished or unpublished also is a critical element of its nature.31
Published works are more likely to qualify as fair use because
the first appearance of the artist's expression has already
occurred.32 Kelly's images appeared on the internet before
Arriba used them in its search image. When considering both
of these elements, we find that this factor weighs only slightly
in favor of Kelly. 

  3. Amount and substantiality of portion used. 

   "While wholesale copying does not preclude fair use per se,
copying an entire work militates against a finding of fair use."33
However, the extent of permissible copying varies with the
purpose and character of the use.34 If the secondary user only
copies as much as is necessary for his or her intended use,
then this factor will not weigh against him or her. 

   [8] This factor neither weighs for nor against either party
because, although Arriba did copy each of Kelly's images as
a whole, it was reasonable to do so in light of Arriba's use of

  30A&M Records, 239 F.3d at 1016 (citing Campbell, 510 U.S. at 586)
(internal quotation marks omitted). 
  31Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564
(1985) (noting that the scope of fair use is narrower with respect to unpub-
lished works because the author's right to control the first public appear-
ance of his work weighs against the use of his work before its release). 
  32Id. 

  33Worldwide Church of God, 227 F.3d at 1118 (internal quotation marks
omitted). 
  34Campbell, 510 U.S. at 586-87. 



                       KELLY v. ARRIBA SOFT CORP.                     9075
the images. It was necessary for Arriba to copy the entire
image to allow users to recognize the image and decide
whether to pursue more information about the image or the
originating web site. 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. 

  4. Effect of the use upon the potential market for or value
        of the copyrighted work. 

   This last factor requires courts to consider "not only the
extent of market harm caused by the particular actions of the
alleged infringer, but also `whether unrestricted and wide-
spread conduct of the sort engaged in by the defendant . . .
would result in a substantially adverse impact on the potential
market for the original.' "35 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.36 

   Kelly's images are related to several potential markets. One
purpose of the photographs is to attract internet users to his
web site, where he sells advertising space as well as books
and travel packages. In addition, Kelly could sell or license
his photographs to other web sites or to a stock photo data-
base, which then could offer the images to its customers. 

   [9] Arriba's use of Kelly's images in its thumbnails does
not harm the market for Kelly's images or the value of his
images. By showing the thumbnails on its results page when
users entered terms related to Kelly's images, the search
engine would guide users to Kelly's web site rather than away

  35Id. at 590 (quoting 3 M. Nimmer & D. Nimmer, Nimmer on Copyright
 13.05[A][4] (1993)) (ellipses in original). 
  36See id. at 591 (stating that a work that supersedes the object of the
original serves as a market replacement for it, making it likely that market
harm will occur, but when the second use is transformative, market substi-
tution is less certain). 



9076                  KELLY v. ARRIBA SOFT CORP.
from it. Even if users were more interested in the image itself
rather than the information on the web page, they would still
have to go to Kelly's site to see the full-sized image. The
thumbnails would not be a substitute for the full-sized images
because the thumbnails lose their clarity when enlarged. If a
user wanted to view or download a quality image, he or she
would have to visit Kelly's web site.37 This would hold true
whether the thumbnails are solely in Arriba's database or are
more widespread and found in other search engine databases.

   [10] Arriba's use of Kelly's images also would not harm
Kelly's ability to sell or license his full-sized images. Arriba
does not sell or license its thumbnails to other parties. Anyone
who downloaded the thumbnails would not be successful sell-
ing full-sized images enlarged from the thumbnails because of
the low resolution of the thumbnails. There would be no way
to view, create, or sell a clear, full-sized image without going
to Kelly's web sites. Therefore, Arriba's creation and use of
the thumbnails does not harm the market for or value of
Kelly's images. This factor weighs in favor of Arriba. 

   Having considered the four fair use factors and found that
two weigh in favor of Arriba, one is neutral, and one weighs
slightly in favor of Kelly, we conclude that Arriba's use of
Kelly's images as thumbnails in its search engine is a fair use.

  37We do not suggest that the inferior display quality of a reproduction
is in any way dispositive or will always assist an alleged infringer in dem-
onstrating fair use. In this case, however, it is extremely unlikely that users
would download thumbnails for display purposes, as the quality full-size
versions are easily accessible from Kelly's web sites. 
  In addition, we note that in the unique context of photographic images,
the quality of the reproduction may matter more than in other fields of cre-
ative endeavor. The appearance of photographic images accounts for virtu-
ally their entire aesthetic value. 



                   KELLY v. ARRIBA SOFT CORP.                     9077
                                  B.

  As mentioned above, the district court granted summary
judgment to Arriba as to the full-size images as well. How-
ever, because the court broadened the scope of both the par-
ties' motions for partial summary judgment and Arriba's
concession on the prima facie case, we must reverse this por-
tion of the court's opinion. 

  With limited exceptions that do not apply here, a district
court may not grant summary judgment on a claim when the
party has not requested it.38 The parties did not move for sum-
mary judgment as to copyright infringement of the full-size
images. Further, Arriba had no opportunity to contest the
prima facie case for infringement as to the full-size images.39
Accordingly, we reverse this portion of the district court's
opinion and remand for further proceedings. 

                          CONCLUSION

  [11] We hold that Arriba's reproduction of Kelly's images
for use as thumbnails in Arriba's search engine is a fair use
under the Copyright Act. However, we hold that the district
court should not have reached whether Arriba's display of
Kelly's full-sized images is a fair use because the parties
never moved for summary judgment on this claim and Arriba
never conceded the prima facie case as to the full-size images.
The district court's opinion is affirmed as to the thumbnails
and reversed as to the display of the full-sized images. We
remand for further proceedings consistent with this opinion.
Each party shall bear its own costs and fees on appeal. 

  AFFIRMED in part, REVERSED in part, and
REMANDED. 

  38See Kilroy v. Ruckelshaus, 738 F.2d 1448, 1452 (9th Cir. 1984). 

  39See United States v. Grayson, 879 F.2d 620, 625 (9th Cir. 1989).