Page:Perfect 10, Inc. v. Amazon.com, Inc..pdf/19

 In applying the fair use analysis in this case, we are guided by Kelly v. Arriba Soft Corp., which considered substantially the same use of copyrighted photographic images as is at issue here. See 336 F.3d 811. In Kelly, a photographer brought a direct infringement claim against Arriba, the operator of an Internet search engine. The search engine provided thumbnail versions of the photographer’s images in response to search queries. Id. at 815–16. We held that Arriba’s use of thumbnail images was a fair use primarily based on the transformative nature of a search engine and its benefit to the public. Id. at 818–22. We also concluded that Arriba’s use of the thumbnail images did not harm the photographer’s market for his image. Id. at 821–22.

In this case, the district court determined that Google’s use of thumbnails was not a fair use and distinguished Kelly. Perfect 10, 416 F.Supp.2d at 845–51. We consider these distinctions in the context of the four-factor fair use analysis.

Purpose and character of the use. The first factor, 17 U.S.C. § 107(1), requires a court to consider “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” The central purpose of this inquiry is to determine whether and to what extent the new work is “transformative.” Campbell, 510 U.S. at 579, 114 S.Ct. 1164. A work is “transformative” when the new work does not “merely supersede the objects of the original creation” but rather “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Id. (internal quotation and alteration omitted). Conversely, if the new work “supersede[s] the use of the original,” the use is likely not a fair use. Harper & Row Publishers, Inc. v. Nation Enters., 471 US. 539, 550–51, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (internal quotation omitted) (publishing the “heart” of an unpublished work and thus supplanting the copyright holder’s first publication right was not a fair use); see also Wall Data Inc. v. L.A. County Sheriff’s Dep’t, 447 F.3d 769, 778–82 (9th Cir.2006) (using a copy to save the cost of buying additional copies of a computer program was not a fair use).

As noted in Campbell, a “transformative work” is one that alters the original work