In what circumstances will a parody be considered a fair use of copyrighted material?

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

This Court has only once before even considered whether parody may be fair use, and that time issued no opinion because of the Court's equal division. Benny v. Loew's Inc., 239 F. 2d 532 (CA9 1956), aff'd sub nom. Columbia Broadcasting System, Inc. v. Loew's Inc., 356 U. S. 43 (1958). Suffice it to say now that parody has an obvious claim to transformative value, as Acuff-Rose itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under § 107. See, e. g., Fisher v. Dees, 794 F. 2d 432 (CA9 1986) ("When Sonny Sniffs Glue," a parody of "When Sunny Gets Blue," is fair use); Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741

[510 U.S. 580]

(SDNY), aff'd, 623 F. 2d 252 (CA2 1980) ("I Love Sodom," a "Saturday Night Live" television parody of "I Love New York," is fair use); see also House Report, p. 65; Senate Report, p. 61 ("[U]se in a parody of some of the content of the work parodied" may be fair use).

The germ of parody lies in the definition of the Greek parodeia, quoted in Judge Nelson's Court of Appeals dissent, as "a song sung alongside another." 972 F. 2d, at 1440, quoting 7 Encyclopedia Britannica 768 (15th ed. 1975). Modern dictionaries accordingly describe a parody as a "literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule,"¹² or as a "composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous."¹³ For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. See, e. g., Fisher v. Dees, supra, at 437; MCA, Inc. v. Wilson, 677 F. 2d 180, 185 (CA2 1981). If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.¹⁴ Parody needs to mimic

[510 U.S. 581]

an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.¹⁵ See ibid.; Bisceglia, Parody and Copyright Protection: Turning the Balancing Act Into a Juggling Act, in ASCAP, Copyright Law Symposium, No. 34, p. 25 (1987).

The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioners' suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair, see Harper & Row, 471 U. S., at 561. The Act has no hint of an evidentiary preference for parodists over their victims, and no workable presumption for parody could take account of the fact that parody often shades into satire when society is lampooned through its creative artifacts, or that a work may contain both parodic and nonparodic elements. Accordingly, parody, like any other use, has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law.

While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works.¹⁷

The Court of Appeals, however, immediately cut short the enquiry into 2 Live Crew's fair use claim by confining its treatment of the first factor essentially to one relevant fact, the commercial nature of the use. The court then inflated the significance of this fact by applying a presumption ostensibly

[510 U.S. 584]

culled from Sony, that "every commercial use of copy-righted material is presumptively . . . unfair. . . ." Sony, 464 U. S., at 451. In giving virtually dispositive weight to the commercial nature of the parody, the Court of Appeals erred.

The language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character. Section 107(1) uses the term "including" to begin the dependent clause referring to commercial use, and the main clause speaks of a broader investigation into "purpose and character." As we explained in Harper & Row, Congress resisted attempts to narrow the ambit of this traditional enquiry by adopting categories of presumptively fair use, and it urged courts to preserve the breadth of their traditionally ample view of the universe of relevant evidence. 471 U. S., at 561; House Report, p. 66. Accordingly, the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness. If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities "are generally conducted for profit in this country." Harper & Row, supra, at 592 (Brennan, J., dissenting). Congress could not have intended such a rule, which certainly is not inferable from the common-law cases, arising as they did from the world of letters in which Samuel Johnson could pronounce that "[n]o man but a blockhead ever wrote, except for money." 3 Boswell's Life of Johnson 19 (G. Hill ed. 1934).

Sony itself called for no hard evidentiary presumption. There, we emphasized the need for a "sensitive balancing of interests," 464 U. S., at 455, n. 40, noted that Congress had "eschewed a rigid, bright-line approach to fair use," id., at

[510 U.S. 585]

449, n. 31, and stated that the commercial or nonprofit educational character of a work is "not conclusive," id., at 448-449, but rather a fact to be "weighed along with other[s] in fair use decisions," id., at 449, n. 32 (quoting House Report, p. 66). The Court of Appeals's elevation of one sentence from Sony to a per se rule thus runs as much counter to Sony itself as to the long common-law tradition of fair use adjudication. Rather, as we explained in Harper & Row, Sony stands for the proposition that the "fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use." 471 U. S., at 562. But that is all, and the fact that even the force of that tendency will vary with the context is a further reason against elevating commerciality to hard presumptive significance. The use, for example, of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence under the first factor of the fair use enquiry than the sale of a parody for its own sake, let alone one performed a single time by students in school. See generally Patry & Perlmutter 679-680; Fisher v. Dees, 794 F. 2d, at 437; Maxtone-Graham v. Burtchaell, 803 F. 2d 1253, 1262 (CA2 1986); Sega Enterprises Ltd. v. Accolade, Inc., 977 F. 2d 1510, 1522 (CA9 1992).¹⁸

The first factor in a fair use inquiry is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." § 107(1). While this inquiry does not specify which purpose might render a given use "fair," the preamble to § 107 provides an illustrative, though not limitative, listing which includes "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research."

Page 1400

§ 107. Under this factor, the inquiry is whether The Cat NOT in the Hat! merely supersedes the Dr. Seuss creations, or whether and to what extent the new work is "transformative," i.e., altering The Cat in the Hat with new expression, meaning or message.

Parody is regarded as a form of social and literary criticism, having a socially significant value as free speech under the First Amendment. This court has adopted the "conjure up" test where the parodist is permitted a fair use of a copyrighted work if it takes no more than is necessary to "recall" or "conjure up" the object of his parody. See MCA, Inc. v. Wilson, 677 F.2d 180, 184 (2d Cir.1981); Warner Bros., Inc. v. American Broadcasting Cos., 523 F.Supp. 611, 617 (S.D.N.Y.), aff'd, 654 F.2d 204 (2d Cir.1981); Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 757 (9th Cir.1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1054, 59 L.Ed.2d 94 (1979). Accordingly, the critical issue under this factor is whether The Cat NOT in the Hat! is a parody. ⁶ See Acuff-Rose, 510 U.S. at 582, 114 S.Ct. at 1173 ("The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived.").

We first examine the definition of parody. ⁷ The parties disagree over the appropriate interpretation of Acuff-Rose 's holding with respect to the definition of parody under the fair use exception. The Supreme Court of the United States in the Acuff-Rose case held that a rap group's version of Ray Orbison's song "Oh, Pretty Woman" was a candidate for a parody fair use defense. ⁸ Justice Souter, the opinion's author, defined parody:

For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works.... If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.

Id. at 580, 114 S.Ct. at 1172 (citations omitted). The Court pointed out the difference between parody (in which the copyrighted work is the target) and satire (in which the copyrighted work is merely a vehicle to poke fun at another target): "Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing." Id. As Justice Kennedy put it in his concurrence: "The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole (although if it targets the original, it may target those features as well)." Id. at 597, 114 S.Ct. at 1180. The Second Circuit in Rogers v. Koons, 960 F.2d 301, 310 (2d Cir.1992), also emphasized that unless the plaintiff's copyrighted work is at least in part the target of the defendant's satire, then the defendant's work is not a "parody" in the legal sense:

Page 1401

It is the rule in this Circuit that though the satire need not be only of the copied work and may ... also be a parody of modern society, the copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work.... By requiring that the copied work be an object of the parody, we merely insist that the audience be aware that underlying the parody there is an original and separate expression, attributable to a different artist.

Similarly, the American Heritage Dictionary defines "parody" as a "literary or artistic work that broadly mimics an author's characteristic style and holds it up to ridicule."

The first factor, the "purpose and character of the use," addresses "whether the new work merely `supercedes 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, in other words, whether and to what extent the new work is transformative.'" Campbell, 510 U.S. at 579, 114 S.Ct. 1164 (internal citations omitted).

Among the various forms of "transformative use" is that of parody. See id. A parody is a "`literary or artistic work that imitates the characteristic style of an author or a work for comic effort or ridicule,' or as a `composition in prose or verse in which the characteristic turns of thought and phrase or class of authors are imitated in such a way as to make them appear ridiculous.'" Id. at 580, 114 S.Ct. 1164. "[P]arody has an obvious claim to transformative value" because "[l]ike less ostensibly humorous forms of criticism, it can provide social benefit, by shedding

Page 968

light on an earlier work, and, in the process, creating a new one." Id. at 579, 114 S.Ct. 1164. "For purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author' composition to create a new one, that, at least in part, comments on that author's works." Id. at 580, 114 S.Ct. 1164.

In Campbell, the Supreme Court found that hip-hop band 2-Live Crew's rendition of "Pretty Woman" was a parody because it targeted the original song and commented "on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies." Id. at 583, 114 S.Ct. 1164. Relying on Campbell in Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792, 802 (9th Cir.2003), the Ninth Circuit remarked: "No doubt, 2-Live Crew could have chosen another song to make such a statement. Parody only requires that the plaintiff's copyrighted work is at least in part the target of the defendant's satire,' not that the plaintiff's work be the irreplaceable object for its form of social commentary." Id. (internal citations omitted) (emphasis added).

In their opposition to the motion to dismiss, plaintiffs argue that Family Guy's use of the Charwoman in the Peterotica episode "does not constitute parody in the strict legal sense" and thus cannot be considered "transformative." (Pls. Opp. at 7). In support of this argument, plaintiffs assert that the target of the Family Guy parody was not the Charwoman character as such, but Carol Burnett herself. In fact, the Family Guy characters explain that the porn shop is clean because "Carol Burnett works part-time as a janitor" and make reference to Carol Burnett's signature ear tug. Plaintiffs point out that the Charwoman never tugged her ear in The Carol Burnett Show; rather, Carol Burnett playing herself tugged at her ear in the closing segment of the show as a salute to her grandmother. Furthermore, plaintiffs assert that the act of placing the Charwoman in the role of a janitor in an erotic store is neither "absurd" nor "transformative" because "one could easily imagine a charwoman cleaning the floor of a porn shop." (Pls. Opp at 8).

Secondarily, plaintiffs argue that a comparison of the Family Guy's Charwoman and Burnett's Charwoman demonstrates that the Family Guy version is virtually a literal copy of Burnett's, see Denton Decl. ¶ 2; Exh. A, which is another indication that the use of the Charwoman is not "sufficiently transformative." (Pls. Opp. at 8). In sum, the crux of plaintiffs' argument is that the target of the "Family Guy's crude joke" appears to be Burnett, her family, and her wholesome image as opposed to the Charwoman. (Pls. Opp. at 7).

However, as the Supreme Court has pointed out, the correct inquiry is not whether the use of the material constitutes parody in a "strict legal sense." Rather, the "threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived" and "[w]hether ... parody is in good taste or bad taste does not and should not matter to fair use." See Campbell, 510 U.S. at 582, 114 S.Ct. 1164. As defendant correctly notes, it is immaterial whether the target of Family Guy's "crude joke" was Burnett, the Carol Burnett Show, the Charwoman, Carol's Theme Music or all four. The eighteen-second clip of the animated figure resembling the "Charwoman," mopping the floor next to "blowup dolls," a rack of "XXX" movies, and "video booths" in a porn shop is clearly designed to "imitate[] the characteristic

Page 969

style of an author or a work for comic effort or ridicule," and is executed in such a manner that "the characteristic turns of thought and phrase or class of authors are imitated in such a way as to make them appear ridiculous." Campbell 510 U.S. at 580, 114 S.Ct. 1164; see also Lucasfilm Ltd. v. Media Market Group, Ltd., 182 F.Supp.2d 897, 901 (N.D.Cal.2002)(denying injunctive relief to block pornographic version of "Star Wars" because a "parodic character may reasonably be perceived"). Criticism of figures as universally recognized as Carol Burnett "will not always be reasoned or moderate," and may come in the form of "`vehement, caustic, and sometimes unpleasantly sharp attacks.'" Hustler Magazine v. Falwell, 485 U.S. 46, 51, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). Here, Family Guy put a cartoon version of Carol Burnett/the Charwoman in an awkward, ridiculous, crude, and absurd situation in order to lampoon and parody her as a public figure. Therefore, the Court finds that a parodic character may reasonably be perceived in the Family Guy's use of the Charwoman because it is a "literary or artistic work that broadly mimics an author's characteristic style and holds it up to ridicule." See Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1401 (9th Cir.1997) (quoting American Heritage Dictionary definition of parody). The episode at issue put a cartoon version of Carol Burnett/the Charwoman in an awkward, ridiculous, crude, and absurd situation in order to lampoon and parody her as a public figure. Accordingly, the Court finds this factor weighs in favor of fair use.

The second § 107 factor is "the nature of the copyrighted work." This factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied. See Stewart v. Abend, 495 U.S. 207, 237-238, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990) (contrasting fictional short story with factual works); Harper & Row, 471 U.S. at 563-564, 105 S.Ct. 2218 (contrasting soon-to-be-published memoir with published speech); Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 455, n. 40, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) (contrasting motion pictures with news broadcasts); Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 348-351, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (contrasting creative works with bare factual compilations); 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 13.05[A][2] (1993) (hereinafter Nimmer) However, as the Supreme Court announced in Campbell, and both plaintiffs and defendant recognize in their briefs, the second factor "is not much help in resolving ... parody cases, since parodies almost invariably copy publicly known, expressive works...." Campbell, 510 U.S. at 586, 114 S.Ct. 1164. Accordingly, the Court does not accord great weight here to the second factor in the fair use analysis.

3. The Amount and Substantiality of the Amount Used

The third factor asks whether "the amount and substantiality of the portion used in relation to the copyrighted work as a whole," § 107(3) ... are reasonable in relation to the purpose of the copying. Campbell 510 U.S. at 586, 114 S.Ct. 1164. Here, attention turns to "the persuasiveness of a parodist's justification for the particular copying done, and the enquiry will harken back to the first of the statutory factors, for, as in prior cases, [the Supreme Court] recognize[d] that the extent of permissible copying varies with the purpose and character of the use.... The

Page 970

facts bearing on this factor will also tend to address the fourth, by revealing the degree to which the parody may serve as a market substitute for the original or potentially licensed derivatives." Id.

In explaining the application of the third factor, the Court in Campbell, stated that "[w]hen parody takes aim at a particular original work, the parody must be able to `conjure up' at least enough of that original to make the object of its critical wit recognizable.... What makes for this recognition is quotation of the original's most distinctive or memorable features, which the parodist can be sure the audience will know. Once enough has been taken to assure identification, how much more is reasonable will depend, say, on the extent to which the song's overriding purpose and character is to parody the original or, in contrast, the likelihood that the parody may serve as a market substitute for the original. But using some characteristic features cannot be avoided." Campbell, 510 U.S. at 588, 114 S.Ct. 1164. In relation to its discussion of the third factor, the Court relied on Fisher v. Dees, 794 F.2d at 438-39 (9th Cir.1986) and Elsmere Music, Inc. v. NBC, 623 F.2d 252, 253 (2d Cir.1980).

In Elsmere, cast members of the comedy television program "Saturday Night Live" sang an eighteen-second parody of "I Love New York" using the words "I Love Sodom" repeated three times, and the court found fair use, noting the brief use of the material and that "the repetition of the copied material served both to ensure viewer recognition and to satirize the frequent broadcasting of the original." Elsmere, 623 F.2d at 253. In Fisher, the Ninth Circuit concluded that a twenty nine-second song parody on a forty-minute comedy album, which copied the first bars of an underlying song with parodic alterations to the opening lyrics, took "no more from the original than necessary to accomplish reasonably its parodic purpose." Fisher, 794 F.2d at 439.

Here, plaintiffs argue that Fox took more of the Charwoman character's image and Carol's theme music than was necessary to place that image in the minds of viewers. Plaintiffs stress that the Family Guy Charwoman is a "near verbatim copy of Burnett's Charwoman" and analogize the present case to Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir.1978), wherein the panel concluded that it was not necessary, and hence not fair use, for adult comic book authors to copy Disney characters in their entirety to place the characters in the minds of their readers. Id. at 757-58.

This argument is unpersuasive. The Charwoman, the Carol Burnett Show theme music, and the jokes told about Burnett's family appear on screen for approximately eighteen seconds. As in Elsmere, Fisher, and Campbell, Family Guy took "no more from the original than necessary to accomplish reasonably its parodic purpose," Fisher, 794 F.2d at 439. Although Family Guy could have used more than just a "fleeting evocation," see Fisher, 794 F.2d at 439, and an "[e]ven more extensive use would still have been fair use," Elsmere, 623 F.2d at 253, n. 1, Family Guy "conjures up" the "Charwoman" and "Carol's theme" for less than five seconds. Compare Ex. A with Fisher, 794 F.2d at 439 (29-second song parody) and Elsmere, 623 F.2d at 253 (18-second song parody). As the defendant correctly notes, there is no requirement that "parodists take the bare minimum amount of copyright material necessary to conjure up the original work." Suntrust Bank, 268 F.3d 1257, 1273 (11th Cir.2001)(emphasis added). Here, Family Guy takes just enough of the imagery and accompanying theme music to make this crude depiction of the Charwoman

Page 971

character "recognizable" to viewers. Accordingly, the third factor weighs in favor of fair use.

Here, as in Fishery, the Court finds that commercial substitution is not likely in this case. Defendant is correct that the market demand for a non-parodic use of the Charwoman would not be fulfilled by a use that has the character in front of "blowup" dolls and "XXX movies." Arguing that the fourth factors weighs against fair use, plaintiffs raise the issue that the Family Guy's use of the Charwoman inflicts harm on the good will and reputation associated with the copyrighted work. However, a "parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically." Id. Indeed, "`[d]estructive' parodies play an important role in social and literary criticism and thus merit protection even though they may discourage or discredit an original author." Id.

Accordingly, the Court finds that the four factors of § 107 weigh strongly in favor of a finding of fair use and that plaintiffs' first claim of relief for copyright infringement should be dismissed without leave to amend. Ordinarily, "[d]ismissal without leave to amend is improper unless it is clear that the complaint could not be saved by any amendment." Polich v. Burlington Northern, Inc., 942 F.2d 1467, 1472 (9th Cir.1991). However, leave to amend should not be granted when plaintiffs could

Page 972

not allege any additional facts which might cure defects in the complaint. See In re VeriFone Sec. Litig., 11 F.3d 865, 872 (9th Cir.1993) (denying leave to amend when plaintiffs failed to allege additional facts which might cure defects in complaint). Here, it is clear that the complaint can not be saved by any amendment. See Polich, 942 F.2d at 1472; see also In re Silicon Graphics, 183 F.3d at 991 (9th Cir.1999) (leave to amend should not be granted where the complaint is futile). Accordingly, the Court grants defendant's motion to dismiss plaintiffs' first claim for relief without leave to amend.

First, the Court must look to whether Defendants' use is of a commercial nature and whether, and to what extent, the infringing work is transformative of the original. Id., ___ U.S. at ___, 114 S.Ct. at 1171. In Campbell, the Supreme Court noted that a purported parody would not be protected if it is "commentary that has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh...." Id., 114 S.Ct. at 1172. Here, Plaintiffs contend that the Honda ad is completely commercial in its nature and does not comment on the earlier Bond films. Defendants claim that their commercial is a parody on the action film genre, and further, is more than simply a commercial because of its artistic merit. On balance, Plaintiffs should prevail on this issue — the Supreme Court in Campbell notes that "the use ... of a copyrighted work to advertise a product, even in parody, will be entitled to less indulgence under the first factor of the fair use enquiry, than the sale of the parody for its own sake...." 114 S.Ct. at 1174. See also Tin Pan Apple, Inc. v. Miller Brewing Co., 737 F.Supp. 826, 832 (S.D.N.Y.1990) (beer commercial copying music video); D.C. Comics, Inc. v. Crazy Eddie, Inc., 205 U.S.P.Q. 1177 (S.D.N.Y.1979) (commercial copying Superman).

Second, the Court must recognize that "some works are closer to the core of intended copyright protection than others," and thus are more deserving of protection. Campbell, ___ U.S. at ___, 114 S.Ct. at 1175 & cases cited therein (e.g. fictional works are closer to the core than fact-based works). Plaintiffs view their films as just such core-predictable work, while Defendants see their work as generic, spy thriller fare. Again, Plaintiffs should prevail on this issue because their work has created its own unique niche in the larger "action film" genre.

Third, the Court must look to the quantitative and qualitative extent of the copying involved. A parodist may appropriate only that amount of the original necessary to achieve his or her purpose. See Fisher v. Dees, 794 F.2d 432, 438 (9th Cir. 1986). The amount that may be used diminishes the less the purpose is to critique the original and the more that the parody serves as a substitute for the original. Campbell, ___ U.S. at ___, 114 S.Ct. at 1176. Plaintiffs claim that the Honda commercial is a total appropriation; Defendants describe the two versions of their commercial as "de minimis" appropriation, if at all. Plaintiffs should prevail on this issue: as mentioned above, the brevity of the infringing work when compared with the original does not excuse copying.

And fourth, the Court must measure "`the effect of the use upon the potential market for or value of the copyrighted work.'" Campbell, 114 S.Ct. at 1177 (citing 17 U.S.C. § 107(4)). The task is to distinguish between "`biting criticism that merely suppresses demand and copyright infringement which usurps it.'" Id., 114 S.Ct. at 1178 (citing Fisher, 794 F.2d at 438). Where the appropriation involves "mere duplication for commercial purposes," market harm is presumed. Id., ___ U.S. at ___, 114 S.Ct. at 1177. Plaintiffs allege that "one of the most commercially lucrative aspects of the copyrights is their value as lending social cachet and upscale image to cars" and that Defendants' commercial unfairly usurps this benefit. Plaintiffs' Opening Memo re: Preliminary Injunction Motion, at 32. Defendants counter that Plaintiffs present no evidence that their commercial will dissuade viewers from watching the Bond films. Plaintiffs should win on this issue as well; it is likely that James Bond's association with a low-end Honda model will threaten its value in the eyes of future upscale licensees.

It is clear from the foregoing discussion that Plaintiffs will likely succeed on this issue

[900 F. Supp. 1301]

and Defendants will be unable to show fair use or parody.

26. The first fair use factor weighs strongly against a finding of fair use.

27. The first fair use factor considers "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." 17 U.S.C. § 107(1). Under this factor, the inquiry is whether the infringing work merely supersedes the original, or whether and to what extent the new work is "transformative" and alters the original with new expression, meaning or message. See Dr. Seuss, 109 F.3d at 1400.

28. The Ninth Circuit "has adopted the `conjure up' test where the parodist is permitted a fair use of a copyrighted work if it takes no more than is necessary to `recall' or `conjure up' the object of his parody." Id.

29. The Supreme Court has defined parody as follows:

For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works.... If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commercially, loom larger.

Campbell, 510 U.S. at 580, 114 S.Ct. 1164 (citations omitted). The Ninth Circuit has noted that "[p]arody is regarded as a form of social and literary criticism, having a socially significant value as free speech under the First Amendment." Dr. Seuss, 109 F.3d at 1400.

30. The Supreme Court has also drawn a distinction between parody and satire: "Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing." Campbell, 510 U.S. at 580, 114 S.Ct. 1164. Thus, a distinction exists between a parody, which targets the copyrighted work, and satire, which uses the copyrighted work as a vehicle to poke fun at another target. See Dr. Seuss, 109 F.3d at 1400.

31. Advertisements are entitled to less indulgence than other forms of parody. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (The fact that "a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use."); see also Campbell, 510 U.S. at 585, 114 S.Ct. 1164 (The use "of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence under the first factor of the fair use enquiry than the sale of a parody for its own sake."). The TBO Poster and Trailer are part of an advertising campaign intended to attract viewers to see the film. Thus, ads for "The Big One" have a commercial, rather than nonprofit or educational purpose. See 17 U.S.C. § 107(1).

32. Nevertheless, Defendants contend that the TBO Trailer pokes fun at the "Men In Black" image by suggesting that an unfit documentarian may "assume the mantle of hero and do battle against the villains of corporate America, as the [Men In Black] do battle against aliens." Opposition at 14. Defendants argue that advertising for "The Big One" "does not merely use the original concept to promote itself or as a vehicle to satirize some other subject. Rather, [the] advertising directly targets [`Men In Black'] for comment." Opposition at 14.

33. As a general matter, the fair use defense calls for "case-by-case-analysis" and "is

Page 1188

not to be simplified with bright-line rules." Campbell, 510 U.S. at 577, 114 S.Ct. 1164. Nevertheless, several cases may assist the Court's inquiry.

34. In Campbell, the Supreme Court considered whether the rap group 2 Live Crew's commercial parody of Roy Orbison's song, "Oh, Pretty Woman" constituted a fair use. Id. at 571-72, 114 S.Ct. 1164. In addressing the first factor, the Court stated that "2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree." The Supreme Court noted that 2 Live Crew's song could be taken "as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies." Id. at 583, 114 S.Ct. 1164.

35. In Dr. Seuss, the Ninth Circuit considered whether a poetic account of the O.J. Simpson murder trail entitled "The Cat NOT in the Hat! A Parody by Dr. Juice", which might infringe on the well-known "The Cat in the Hat" by Dr. Seuss, could be excused as a parody under the fair use doctrine. In addressing the first factor, the Ninth Circuit stated that although "The Cat NOT in the Hat!" broadly mimics Dr. Seuss' characteristic style, "it does not hold his style up to ridicule." Dr. Seuss, 109 F.3d at 1401. The Court noted that the authors of "The Cat NOT in the Hat!" merely used the Cat's stove-pipe hat, the narrator (Dr. Juice), and the title "to get attention" or "to avoid the drudgery in working up something fresh." Id. (quoting Campbell, 510 U.S. at 580, 114 S.Ct. 1164). The Court concluded that there was "no effort to create a transformative work with `new expression, meaning, or message.'" Id. (quoting Campbell, 510 U.S. at 578, 114 S.Ct. 1164).

36. In this case, The TBO Poster and Trailer do not create a "transformative work." See Dr. Seuss, 109 F.3d at 1401. The TBO advertisements cannot reasonably be perceived as commenting on or criticizing the ads for "Men In Black." See Campbell, 510 U .S. at 583, 114 S.Ct. 1164. The TBO Poster merely incorporates several elements of the MIB Poster: figures with a particular stance carrying large weapons, standing in front of the New York skyline at night, with a similar layout. Similarly, the TBO Trailer appears to be little more than an effort to "get attention" for "The Big One" and "avoid the drudgery in working up something fresh." Dr. Seuss, 109 F.3d at 1401 (quoting Campbell, 510 U.S.at 580, 114 S.Ct. 1164).

37. The TBO Poster and Trailer are designed solely for the purpose of attracting viewers to see "The Big One." As such, Miramax has merely used the copyrighted work as a vehicle to poke fun at another target — corporate America. It has not used its advertising to comment on or criticize the copyrighted work.

38. The TBO Poster, unlike the MIB Poster, depicts Moore with "grinning bravado," and a "rumpled appearance." See Opposition at 13. Nevertheless, "[b]eing different from an original does not inevitably `comment' on the original." Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 114 (2d Cir.1998).⁶

39. Rather than commenting on or criticizing Plaintiffs' ads, Defendants' ads seek to use Plaintiffs' ads as a vehicle to entice viewers to see "The Big One" in the same manner as Plaintiffs used their own ads to entice viewers to see "Men In Black." In such circumstances, Defendants have not created a transformative work which alters the original with new expression, meaning or message. See Dr. Seuss, 109 F.3d at 1400.

 40. The second fair use factor considers "the nature of the copyrighted work." 17 U.S.C. § 107(2). "This factor recognizes that creative works are `closer to the core of intended copyright protection' than informational and functional works, `with the consequence that fair use is more difficult to establish when the former works are copied.'" Dr.

Page 1189

Seuss, 109 F.3d at 1400 (quoting Campbell, 510 U.S. at 586, 114 S.Ct. 1164). The Ninth Circuit has stated that "this factor typically has not been terribly significant in the overall fair use balancing." Id. at 1402.

41. In this case, the parties do not dispute that the copyrighted work reflects original, creative, expression. Thus, the Court finds that "the creativity, imagination and originality embodied in" the MIB Poster Trailers "tilts the scale against fair use." Id.; see also Leibovitz, 137 F.3d at 115.

Importance of Portion Used In Relation to the Copyrighted Work as a Whole

42. The third fair use factor considers whether the amount and substantiality of the portion used in relation to the copyrighted work as a whole are reasonable in relation to the purpose of the copying. See 17 U.S.C. § 107(3); Dr. Seuss, 109 F.3d at 1402. "This factor really raises the question of substantial similarity ... rather than whether the use is `fair.'" Dr. Seuss, 109 F.3d at 1402. The court must consider "the persuasiveness of a parodist's justification for the particular copying done, and the enquiry will harken back to the first of the statutory factors [because] the extent of permissible copying varies with the purpose and character of the use." Campbell, 510 U.S. at 586-87, 114 S.Ct. 1164.

43. As discussed above, the TBO Poster and Trailer are substantially similar to the expressive ideas contained in the MIB Poster and Trailers. The Court has also concluded, under the first statutory factor, that Defendants' proffered justifications are not persuasive because Defendants have not created a transformative work which alters the copyrighted work with new expression, meaning or message. See Dr. Seuss, 109 F.3d at 1400.

44. The amount and substantiality of the portion used in relation to the copyrighted work as a whole was not reasonable. Thus, the third factors weighs against a finding of fair use.

Effect of the Accused Use on the Potential Market

45. The final fair use factor also militates against a finding of fair use.

46. The final fair use factor considers "the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107(4). Under this factor, the court must consider both the extent of market harm caused by infringing work and whether unrestricted and widespread dissemination would hurt the potential market for the original and its derivatives. See Dr. Seuss, 109 F.3d at 1403.

47. This factor requires the Court to strike a balance "between the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied. The less adverse effect that an alleged infringing use has on the copyright owner's expectation of gain, the less public benefit need be shown to justify the use." MCA, Inc. v. Wilson, 677 F.2d 180, 183 (2d Cir.1981) (citations omitted).

48. Defendants have not met their burden of providing affirmative evidence relating to market harm. See Dr. Seuss, 109 F.3d at 1403. Defendants have failed to offer any evidence as to the relevant markets or as to harm within the relevant market. Defendants have also failed to offer any evidence with respect to harm to the market for "Men In Black" derivatives.⁷