Framing is another approach to keeping a particular business in the mind of a viewer. It allows the content of one site to surround or “frame” the content of a “framed” site, thus enabling a web site to bring up the content of the other website within its own display borders. Web users can surf through multiple sites within a frame in this manner, while the frame site continues to be displayed. Although there are legitimate uses for such a web page design, if the use of the frame incorrectly suggests to consumers that the information within the frame is somehow associated with the information outside the frame, then unfair confusion may result and liability may follow. In fact, with regard to unfair competition concerns, framing may be more objectionable than linking. See Hard Rock Cafe Int’l v. Morton, 1999 U.S. Dist. Lexis 8340 (S.D.N.Y 1999) (noting that framing, unlike linking,combines the websites into “a single visual presentation”).
In addition to unfair competition, copyright and trademark infringement may be implicated with regard to framing. In Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir. 2001), the Ninth Circuit Court of Appeals found that a company’s use of an image search engine that returned thumbnail-sized images was fair use but found that inline linking and framing violated copyright laws when applied to full-sized images. Thumbnail photographs are smaller versions of a full-sized image that have lower resolution than the full-sized image. Arriba developed a search engine that scoured the Internet to find images. The results page included thumbnails of the images. The court found that this action was merely a tool to improve access to images on the Internet. Because of the low resolution in the thumbnails, the court reasoned that the images would not be displayed in the same manner as the original. In contrast, the court found that the resultant full-sized images were not merely a means to access information, but rather, were the end product themselves. As such, the court ruled that it was not fair use and enjoined Arriba from further displaying the full-sized images.