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Perfect 10, Inc. v. Amazon.com, Inc. | 487 F.3d 701 ( 2007)

Adult entertainment was one of the first business sectors to see the Internet’s potential. It was followed closely by search engines. These two sectors collided in the fair-use case Perfect 10 versus Amazon, which pondered the transformative nature of thumbnail images.

Perfect 10 operated a subscription website through which customers could purchase copyrighted images of nude models. Some websites republished these images without authorization. Google automatically indexed images that had been republished on non-protected sites. These images appeared as thumbnails in image searches. Anyone who found these images through a Google search could access the full-size images on the websites that were displaying them without Perfect 10’s permission.

In 2001, Perfect 10 began notifying Google that its thumbnail images and links to full-size images infringed Perfect 10’s copyright.

Finally, in 2005, Perfect 10 sued Google for copyright infringement in an action that ended up being consolidated with its lawsuit against Amazon. Perfect 10 filed for a preliminary injunction to prevent Google from copying, publicly displaying, or otherwise contributing to the copyright infringement of its photographs and linking to websites that provided full-size images of Perfect 10’s photos.

Google argued, as an affirmative defense, that its use of thumbnails was a fair use of Perfect 10’s images. The district court disagreed, finding that Perfect 10 was likely to prevail on its claim that Google had violated its display right with respect to the thumbnails but not on its claim with respect to the full-size images. The district court partially granted the injunction against Google. Both parties appealed to the United States Court of Appeals for the Ninth Circuit.

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