Fair Use in Particular Contexts—Part I

JON O. NEWMAN, Circuit Judge:

The fair use doctrine permits other people to use copyrighted material without the owner’s consent in a reasonable manner for certain purposes. Recognized at common law, the doctrine is now codified in section 107 of the 1976 Copyright Act. … Although the statute does not specifically list “parodies” among the categories of potentially “fair” uses, we have long afforded such works some measure of protection under this doctrine, see, e.g., MCA, Inc. v. Wilson, 677 F.2d 180 (2d Cir.1981); Elsmere Music, Inc. v. National Broadcasting Co., 623 F.2d 252 (2d Cir.1980); Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2d Cir. 1964), and the Supreme Court authoritatively confirmed the applicability of the fair use doctrine to parodies in Campbell, 510 U.S. at 579. [The court then elaborated on “Campbell’s Clarification of the Fair Use Defense” before proceeding to apply the fair use factors.]

Applying Campbell to the first-factor analysis, we inquire whether Paramount’s advertisement “may reasonably be perceived,” as a new work that “at least in part, comments on” Leibovitz’s photograph. Plainly, the ad adds something new and qualifies as a “transformative” work. Whether it “comments” on the original is a somewhat closer question. Because the smirking face of Nielsen contrasts so strikingly with the serious expression on the face of Moore, the ad may reasonably be perceived as commenting on the seriousness, even the pretentiousness, of the original. The contrast achieves the effect of ridicule that the Court recognized in Campbell would serve as a sufficient “comment” to tip the first factor in a parodist’s favor. See id. at 583, (“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.”).

In saying this, however, we have some concern about the ease with which every purported parodist could win on the first factor simply by pointing out some feature that contrasts with the original. Being different from an original does not inevitably “comment” on the original. Nevertheless, the ad is not merely different; it differs in a way that may reasonably be perceived as commenting, through ridicule, on what a viewer might reasonably think is the undue self-importance conveyed by the subject of the Leibovitz photograph. A photographer posing a well known actress in a manner that calls to mind a well known painting must expect, or at least tolerate, a parodist’s deflating ridicule.³

Apart from ridiculing pretentiousness, the ad might also be reasonably perceived as interpreting the Leibovitz photograph to extol the beauty of the pregnant female body, and, rather unchivalrously, to express disagreement with this message. The District Court thought such a comment was reasonably to be perceived from the contrast between “a serious portrayal of a beautiful woman taking great pride in the majesty of her pregnant body ... [and] a ridiculous image of a smirking, foolish-looking pregnant man.”

The fact that the ad makes a parodic comment on the original does not end the first-factor analysis, however, because the ad was created and displayed to promote a commercial product, the film. This advertising use lessens the “indulgence” to which the parodic ad is entitled. See Campbell, 510 U.S. at 585. Paramount seeks to mitigate the negative force of the advertising purpose by arguing that the advertisement should be viewed as an extension of the film, rather than merely an advertisement for it. Paramount emphasizes the general jocular nature of the film, as well as the film’s specific humorous treatment of pregnancy and parenthood.

Though the advertising purpose of a parodic copying should not be entirely discounted simply because the ad promotes a humorous work, there is some slight force to Paramount’s argument. For those who see the movie, the parodic comment of the ad might reasonably be perceived as reenforced by the kidding comments of the movie concerning pregnancy and parenthood.

On balance, the strong parodic nature of the ad tips the first factor significantly toward fair use, even after making some discount for the fact that it promotes a commercial product. Less indulgence, does not mean no indulgence at all. This is not a case like Steinberg v. Columbia Pictures Industries, Inc., 663 F.Supp. 706 (S.D.N.Y.1987), where a copyrighted drawing was appropriated solely to advertise a movie, without any pretense of making a comment upon the original.

Though Paramount concedes the obvious point that Leibovitz’s photograph exhibited significant creative expression, Campbell instructs that the creative nature of an original will normally not provide much help in determining whether a parody of the original is fair use. Campbell, 510 U.S. at 586. The second factor therefore favors Leibovitz, but the weight attributed to it in this case is slight.

In assessing the amount and substantiality of the portion used, we must focus only on the protected elements of the original. Leibovitz is entitled to no protection for the appearance in her photograph of the body of a nude, pregnant female. Only the photographer’s particular expression of such a body is entitled to protection. Thus, to whatever extent Leibovitz is contending that the ad takes the “heart” of the original, see Harper & Row, 471 U.S. at 564-66, she must limit her contention to the particular way the body of Moore is portrayed, rather than the fact that the ad copies the appearance of a nude, pregnant body. Moreover, in the context of parodies, “the heart is also what most readily conjures up the [original] for parody, and it is the heart at which parody takes aim,” Campbell, 510 U.S. at 588. Thus, the third-factor inquiry in the parody context concerns “what else the parodist did besides go to the heart of the original.” Id. at 589.

Paramount went to great lengths to have its ad copy protectable aspects of the Leibovitz photograph. Even though the basic pose of a nude, pregnant body and the position of the hands, if ever protectable, were placed into the public domain by painters and sculptors long before Botticelli, Leibovitz is entitled to protection for such artistic elements as the particular lighting, the resulting skin tone of the subject, and the camera angle that she selected.

The copying of these elements, carried out to an extreme degree by the technique of digital computer enhancement, took more of the Leibovitz photograph than was minimally necessary to conjure it up, but Campbell instructs that a parodist’s copying of more of an original than is necessary to conjure it up will not necessarily tip the third factor against fair use. On the contrary, “[o]nce enough has been taken to assure identification,” as plainly occurred here, the reasonableness of taking additional aspects of the original depends on the extent to which the “overriding purpose and character” of the copy “is to parody the original,” and “the likelihood that the parody may serve as a market substitute for the original”. That approach leaves the third factor with little, if any, weight against fair use so long as the first and fourth factors favor the parodist. Since those factors favor fair use in this case, the third factor does not help Leibovitz, even though the degree of copying of protectable elements was extensive.

Leibovitz all but concedes that the Paramount photograph did not interfere with any potential market for her photograph or for derivative works based upon it. She appears to have conceded as much in her deposition testimony, as well. Her only argument for actual market harm is that the defendant has deprived her of a licensing fee by using the work as an advertisement. But she is not entitled to a licensing fee for a work that otherwise qualifies for the fair use defense as a parody. See Campbell, 510 U.S. at 592. The fourth factor favors the defendant.

… Randall’s work flips Gone With the Wind’s traditional race roles, portrays powerful whites as stupid or feckless, and generally sets out to demystify Gone With the Wind and strip the romanticism from Mitchell’s specific account of this period of our history.

Even a cursory comparison of the two texts reveals that The Wind Done Gone profoundly alters what it borrows—indeed, at times beyond recognition. To catch some of Randall’s allusions, even a reader familiar with Mitchell’s work may need to refer to the original text. To create a successful parody, an author must keep certain elements constant while inverting or exaggerating other variables; generally there is an incongruity between the borrowed and the new elements. In Randall’s book, the ratio of the former to the latter is very low, and the incongruity between them wide.

Forsythe turns this image on its head, so to speak, … His lighting, background, props, and camera angles all serve to create a context for Mattel’s copyrighted work that transform Barbie’s meaning. Forsythe presents the viewer with a different set of associations and a different context for this plastic figure. In some of Forsythe’s photos, Barbie is about to be destroyed or harmed by domestic life in the form of kitchen appliances, yet continues displaying her well known smile, disturbingly oblivious to her predicament. As portrayed in some of Forsythe’s photographs, the appliances are substantial and overwhelming, while Barbie looks defenseless. In other photographs, Forsythe conveys a sexualized perspective of Barbie by showing the nude doll in sexually suggestive contexts. It is not difficult to see the commentary that Forsythe intended or the harm that he perceived in Barbie’s influence on gender roles and the position of women in society.

Undoubtedly, one could make similar statements through other means about society, gender roles, sexuality, and perhaps even social class. But Barbie, and all the associations she has acquired through Mattel’s impressive marketing success, conveys these messages in a particular way that is ripe for social comment.

Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains. Defendants started with a low-resolution version posted on the City’s website, so much of the original’s detail never had a chance to reach the copy; the original’s background is gone; its colors and shading are gone; the expression in Soglin’s eyes can no longer be read; after the posterization (and reproduction by silk-screening), the effect of the lighting in the original is almost extinguished. What is left, besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted. Defendants could have achieved the same effect by starting with a snapshot taken on the street. … by the time defendants were done, almost none of the copyrighted work remained.

RYMER, Circuit Judge:

Even though the fact that KCAL was reporting news weighs heavily in its favor (§ 107 itself gives news reporting as an example), the fact that LANS and KCAL are both in the business of gathering and selling news cuts the other way. LANS does work that its licensees choose not to do for themselves, for example, operating its own helicopter with news crew aboard, and gets paid for licensing its coverage of news to the media. By the same token, KCAL is a for-profit company that is engaged in a commercial enterprise that also gathers, and then (indirectly) “sells” news. It, therefore, “stands to profit from exploitation of the copyrighted material without paying the customary price.” Harper & Row, 471 U.S. at 562. Thus, KCAL competes with other stations for advertising dollars, which are in turn dependent upon KCAL’s viewership. The fact that KCAL used LANS’s copyrighted footage free of charge, rather than paying LANS or someone else for the footage, or investing in its own helicopter and crew to obtain the footage itself, at least raises an inference that its articulated purpose of reporting the news was mixed with the actual purpose of doing so by using the best version — whether or not it meant riding LANS’s (or some other station’s) copyrighted coattails. While this did not serve to supplant the copyright holder’s commercially valuable right of first publication as The Nation did in Harper & Row by scooping the hardcover and Time abstracts of President Ford’s memoirs, we cannot say that KCAL’s use of the Denny tape had neither the effect nor purpose of depriving LANS of its also valuable right of licensing its original videotape which creatively captured the Denny beating in a way that no one else did.

On the other hand, there is a forceful argument that the LANS tape of the Denny beating itself became a news item shortly after it was published because its view was so extraordinary. To the extent that KCAL ran the tape as a news story, this would weigh in its favor. However, this factor does not weigh nearly so heavily as it might otherwise since there is no evidence that KCAL used the tape in this way. It did not attribute the tape to LANS, and so far as the record discloses, aired it as if it were KCAL’s own rather than, for example, indicating that the best tape of the beating had been made by a LANS helicopter crew. Instead, the tape was simply used as part of KCAL’s coverage of the riots. Although KCAL apparently ran its own voice-over, it does not appear to have added anything new or transformative to what made the LANS work valuable — a clear, visual recording of the beating itself.

While the fact that KCAL had requested a license but had been refused one is not dispositive, the propriety of the defendant’s conduct is relevant to the character of the use at least to the extent that it may knowingly have exploited a purloined work for free that could have been obtained for a fee. Harper & Row, 471 U.S. at 562, 105 S.Ct. at 2231. Unlike the circumstances in Campbell, nothing in this record suggests that KCAL requested a license in a good faith effort to avoid this litigation. KCAL obtained a copy of the tape from another station, directly copied the original, superimposed its logo on the LANS footage, and used it for the same purpose for which it would have been used had it been paid for.

[The court held the nature of the work being factual weighed substantially in KCAL’s favor.]

While a small amount of the entire Videotape was used, it was all that mattered. As we said of the defendant Audio Video Reporting Services in Los Angeles News Service v. Tullo, which provided a video “news clipping” service by monitoring television news programs, recording them on videotape and selling copies to interested individuals and businesses, “although AVRS copied only a small part of the raw footage shot by LANS, it was the most valuable part of that footage. In preparing a newscast, a television station selects the most effective and illustrative shots from the raw footage available. Thus the news programs AVRS copied included what LANS’s customers thought was the best of the LANS footage — its ‘heart.’” Here, as there, this factor weighs against KCAL, for “the fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material, both to the originator and to the plagiarist who seeks to profit from marketing someone else’s copyrighted expression.” Harper & Row, 471 U.S. at 565.

This case doesn’t fit neatly into a traditional niche, because “news” isn’t normally thought of as having a secondary market. Also, LANS’s tape had been licensed — and published — before KCAL’s use, and was licensed after its use. To that extent, this factor weighs in favor of KCAL. At the same time, KCAL’s stated purpose was to use the tape as “news” and it was a potential (and in the past was an actual) licensee or consumer of LANS’s product; there is evidence that, given what LANS and KCAL do, KCAL’s use of LANS’s works for free, without a license, would destroy LANS’s original, and primary market. Just as we recognized in Los Angeles News Service v. Tullo that customers might choose to buy raw footage from LANS if they couldn’t buy it from AVRS, KCAL was ready to buy from LANS if it could, but went elsewhere when it couldn’t. Were this to happen more broadly, it no doubt would adversely affect LANS’s creative incentives. See Campbell, 510 U.S. at 587-89, 114 S.Ct. at 1176 (courts must consider “whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market’ for the original.”) All told, this weighs against a finding of fair use.

In sum, KCAL’s use of LANS’s copyrighted tape was arguably in the public interest because it was a percipient recording of a newsworthy event. However, KCAL’s use was commercial and came in the wake of LANS’s refusal of a license. Although KCAL explains that it used the tape because it recorded news of considerable significance from the best perspective of any witness, there is no evidence that alternatives were not available (albeit from a less desirable vantage point). Also, while the tape had been licensed and published before KCAL’s use, it is not obvious that there was no impact on the market for first publication rights as KCAL itself requested a license. There is no dispute that KCAL used the heart of the tape. Under these circumstances, we cannot say that fair use is the only reasonable conclusion a trier of fact could reach in this case. We therefore reverse and remand for further proceedings.

TORRUELLA, Chief Judge.

Appellant Núñez, a professional photographer, took several photographs of Joyce Giraud (Miss Puerto Rico Universe 1997) for use in Giraud’s modeling portfolio. Núñez then distributed the photographs to various members of the Puerto Rico modeling community in accordance with normal practice. After the photographs had been taken, some controversy arose over whether they were appropriate for a Miss Puerto Rico Universe, based on the fact that Giraud was naked or nearly naked in at least one of the photos. A local television program displayed the photographs on screen and asked random citizens whether they believed the photographs were “pornographic.” Giraud was interviewed by two local television stations as to her fitness to retain the Miss Universe Puerto Rico crown. El Vocero then obtained several of the photographs through various means. Over the next week, without Núñez’s permission, three of his photographs appeared in El Vocero, along with several articles about the controversy.

Núñez claimed that the reprint of his photographs in El Vocero without his permission violated the Copyright Act of 1976. [The district court held in favor of the defendant on the grounds of fair use.] …

The first factor in the 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.” 17 U.S.C. § 107(1). The focus of this analysis asks “whether the new work merely ‘supersedes the objects’ of the original creation or instead adds something new.” Campbell, 510 U.S. at 579. The more “transformative” the new work, the less the significance of factors that weigh against fair use, such as use of a commercial nature. Id. … We agree with the district court that the commercial use here, however, constitutes more than mere reproduction for a profitable use. The photographs were used in part to create an enticing lead page that would prompt readers to purchase the newspaper. Thus El Vocero used the photograph not only as an ordinary part of a profit-making venture, but with emphasis in an attempt to increase its revenue. For this reason, the commercial nature of the reproduction counsels against a finding of fair use.

However, the district court also found that the pictures were shown not just to titillate, but also to inform. Puerto Ricans were generally concerned about the qualifications of Giraud for Miss Puerto Rico Universe, as is demonstrated by the several television shows discussing the photographs. This informative function is confirmed by the newspaper’s presentation of various news articles and interviews in conjunction with the reproduction. Appellee reprinted the pictures not just to entice the buying public, but to place its news articles in context; as the district court pointed out, “the pictures were the story.” It would have been much more difficult to explain the controversy without reproducing the photographs. And although such an explanatory need does not always result in a fair use finding, it weighs in the favor of appellee.

This is not to say that appellee’s use of the photographs was necessarily fair merely because the photographs were used for news purposes, nor does it establish a general “newsworthiness” exception. First, the Supreme Court has specifically frowned upon such an exception. See Harper & Row, 471 U.S. at 561 (“The fact that an article arguably is ‘news’ and therefore a productive use is simply one factor in a fair use analysis.”). Second, the problem with such an approach (as the Supreme Court pointed out) is that it provides an incentive for the infringer to create “news,” so that its infringement falls within the exception. See id. at 562. Were a “newsworthy” use per se fair, journalists and news photographers would be left with little assurance of being rewarded for their work. See id. at 558. It suffices to say here that El Vocero did not manufacture newsworthiness, as it sought not to “scoop” appellant by publishing his photograph, but merely to provide news reporting to a hungry public. And the fact that the story is admittedly on the tawdry side of the news ledger does not make it any less of a fair use.

Rather, what is important here is that plaintiffs’ photographs were originally intended to appear in modeling portfolios, not in the newspaper; the former use, not the latter, motivated the creation of the work. Thus, by using the photographs in conjunction with editorial commentary, El Vocero did not merely “supersede[] the objects of the original creation[s],” but instead used the works for “a further purpose,” giving them a new “meaning, or message.” Campbell, 510 U.S. at 579. It is this transformation of the works into news — and not the mere newsworthiness of the works themselves — that weighs in favor of fair use under the first factor of § 107. See id. (“central inquiry is whether defendant’s use is transformative”); see also Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 478 (1984) (Blackmun, J., dissenting) (key question is whether defendant’s use “results in some added benefit to the public beyond that produced by the first author’s work”).

[The court noted that El Vocero attributed the photographs to Núñez and obtained each of the photographs lawfully. Furthermore,] as the district court explicitly found, El Vocero did not aim to use the photographs to compete with Núñez, nor to supplement his right of first production, as the photographs had already been distributed to the modeling community. Finally, appellee asserts that it believed in good faith that the photographs were available for general, unrestricted circulation and redistribution, and appellant offers little evidence to rebut this assertion.

In sum, the highlighting of the photograph on the front cover of El Vocero exposes the commercial aspect of the infringing use, and counts against the appellee. However, the informative nature of the use, appellee’s good faith, and the fact that it would have been difficult to report the news without reprinting the photograph suggest that on the whole, this factor is either neutral or favors a finding of fair use.

[The court found the second fair use factor, “nature of the copyrighted work,” favored fair use because although Núñez’s photographs had elements of creativity, they were primarily factual publicity images intended for public display, diminishing any claim to exclusive publication rights. It noted that “Although these photographs had not before been published in a book or public portfolio, they were hardly confidential or secret, as was the manuscript in Harper & Row prior to its serial publication.”]

The third factor is the “amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). In this case, El Vocero admittedly copied the entire picture; however, to copy any less than that would have made the picture useless to the story. As a result, like the district court, we count this factor as of little consequence to our analysis.

The fourth statutory factor requires us to consider “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). Our inquiry is restrained to: (i) the extent of market harm caused by the particular actions of the alleged infringer; and (ii) whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market. In other words, we examine the effect of this publication on the market, and we also determine whether wide-scale reproduction of professional photographs in newspapers (for similar purposes) would in general affect the market for such photography. As to the first, we find little impact on the market for these specific pictures. The district court noted that the purpose of dissemination of the pictures in question is not to make money, but to publicize; they are distributed for free to the professional modeling community rather than sold for a profit. The fact that a relatively poor reproduction was displayed on the cover of a newspaper should not change the demand for the portfolio. If anything, it might increase it. Even if there was widespread conduct of this sort, it would have little effect on the demand for disseminated pictures because a newspaper front page is simply an inadequate substitute for an 8” × 10” glossy.

However, the potential market for the photographs might also include the sale to newspapers for just this purpose: illustrating controversy. It is true that El Vocero’s use of the photograph without permission essentially destroys this market. There is no evidence, however, that such a market ever existed in this case. Núñez does not suggest that he ever tried to sell portfolio photographs to newspapers, or even that he had the right to do so under the contract with Giraud. Although it is more likely that other photographers do engage in such sales, and thus that widespread conduct of the type committed by El Vocero could destroy the newspaper sale market as a whole, we note again the context of this case. Surely the market for professional photographs of models publishable only due to the controversy of the photograph itself is small or nonexistent.

… Because the only discernible effect of the publication in El Vocero was to increase demand for the photograph, and because any potential market for resale directly to the newspaper was unlikely to be developed, this factor favors a finding of fair use.

In sum, the first, second, and fourth factors generally favor a finding of fair use. The third factor does not seem particularly relevant in this context. Again, we note that the finding of fair use always entails a case-by-case analysis, and the present case is no exception. Unauthorized reproduction of professional photographs by newspapers will generally violate the Copyright Act of 1976; in this context, however, where the photograph itself is particularly newsworthy, the newspaper acquired it in good faith, and the photograph had already been disseminated, a fair use exists under 17 U.S.C. § 107. As a result, we affirm the decision of the district court.

KATZMANN, Chief Judge:

We turn first to “the purpose and character of the use.” 17 U.S.C. § 107(1). Whether one describes Bloomberg’s activities as “news reporting,” “data delivery,” or any other turn of phrase, there can be no doubt that Bloomberg’s purpose in obtaining and disseminating the recording at issue was to make important financial information about Swatch Group available to investors and analysts. That kind of information is of critical importance to securities markets. … where a financial research service obtains and disseminates important financial information about a foreign company in order to make that information available to investors and analysts, that purpose lends support to a finding of fair use.

It is undisputed here that Bloomberg is a commercial enterprise and that Bloomberg Professional is a subscription service available to paying users. [In prior cases] we have recognized that almost all newspapers, books and magazines are published by commercial enterprises that seek a profit, and have discounted this consideration where the link between the defendant’s commercial gain and its copying is attenuated such that it would be misleading to characterize the use as commercial exploitation. [The court noted the commercial nature of Bloomberg’s use, but assigned it relatively little weight.]

Swatch also contends that Bloomberg acted in bad faith and that this should count against it. Regardless of what role good or bad faith plays in fair use analysis, we need not tarry over it here. Even assuming that Bloomberg was fully aware that its use was contrary to Swatch Group’s instructions, Bloomberg’s overriding purpose here was not to “scoop” Swatch or “supplant the copyright holder’s commercially valuable right of first publication,” Harper & Row, 471 U.S. at 562, but rather simply to deliver newsworthy financial information to investors and analysts. That kind of activity, whose protection lies at the core of the First Amendment, would be crippled if the news media and similar organizations were limited to sources of information that authorize disclosure. See generally New York Times Co. v. United States, 403 U.S. 713 (1971).

The Supreme Court has also instructed courts analyzing the first fair use factor to consider the transformativeness of the use — that is, whether “the new work merely supersedes 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.” Campbell, 510 U.S. at 579. While a transformative use generally is more likely to qualify as fair use, “transformative use is not absolutely necessary for a finding of fair use.” Id.

In the context of news reporting and analogous activities, moreover, the need to convey information to the public accurately may in some instances make it desirable and consonant with copyright law for a defendant to faithfully reproduce an original work without alteration. Courts often find such uses transformative by emphasizing the altered purpose or context of the work, as evidenced by surrounding commentary or criticism. See, e.g., Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609-610 (2d Cir.2006); Nunez v. Caribbean Int’l News Corp., 235 F.3d 18, 22-23 (1st Cir.2000). Here, Bloomberg provided no additional commentary or analysis of Swatch Group’s earnings call. But by disseminating not just a written transcript or article but an actual sound recording, Bloomberg was able to convey with precision not only the raw data of the Swatch Group executives’ words, but also more subtle indications of meaning inferable from their hesitation, emphasis, tone of voice, and other such aspects of their delivery. This latter type of information may be just as valuable to investors and analysts as the former, since a speaker’s demeanor, tone, and cadence can often elucidate his or her true beliefs far beyond what a stale transcript or summary can show. As courts have long recognized in the context of witness testimony, a cold transcript contains only the dead body of the evidence, without its spirit, and cannot reveal the speaker’s hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration.

Furthermore, a secondary work can be transformative in function or purpose without altering or actually adding to the original work. Here, notwithstanding that the data disseminated by Bloomberg was identical to what Swatch Group had disseminated, the two works had different messages and purposes. To begin with, while Swatch Group purported to convey true answers to the analysts’ questions and to justify the propriety and reliability of its published earnings statement, Bloomberg made no representation one way or another as to whether the answers given by Swatch Group executives were true or reliable. Nor did Bloomberg purport to support the propriety or reliability of Swatch Group’s earnings statement. Bloomberg was simply revealing the newsworthy information of what Swatch Group executives had said. Bloomberg’s message — “This is what they said” — is a very different message from Swatch Group’s — “This is what you should believe.”

Moreover, Swatch Group intended to exclude members of the press and to restrict the information supplied by its executives to a relatively small group of analysts who had identified themselves to the company in advance. Bloomberg’s objective in rebroadcasting the call, by contrast, was to make this information public, defeating Swatch Group’s effort to restrict access. Bloomberg’s purpose, in other words, was to publish this factual information to an audience from which Swatch Group’s purpose was to withhold it. These differences give Bloomberg’s use at least an arguably transformative character.

In any event, regardless of how transformative the use is, we conclude that the first fair use factor, focusing on the purpose and character of the secondary use, favors fair use. We of course recognize that a news reporting purpose by no means guarantees a finding of fair use. See Harper & Row, 471 U.S. at 557. After all, “the promise of copyright would be an empty one if it could be avoided merely by dubbing the infringement a fair use ‘news report.’“ Id. A news organization thus may not freely copy creative expression solely because the expression itself is newsworthy. Nevertheless, we agree with the district court’s conclusion that, under the unusual circumstances of this case, the purpose and character of Bloomberg’s unaltered dissemination of Swatch Group’s expression weighs in favor of fair use, for two reasons.

First, as noted above, by disseminating a full, unadulterated recording of the earnings call, Bloomberg was able to convey valuable factual information that would have been impaired if Bloomberg had undertaken to alter the speech of the Swatch Group executives by interjecting its own interpretations. As we explained in a fair use case involving verbatim copying of a written work, “where an evaluation or description is being made, copying the exact words may be the only valid way precisely to report the evaluation.” Consumers Union, 724 F.2d at 1049-50; see also Harper & Row, 471 U.S. at 563, 105 S.Ct. 2218 (noting that direct copying may in some instances be “necessary adequately to convey the facts”). So too here, copying the exact spoken performance of Swatch Group’s executives was reasonably necessary to convey their full meaning. Bloomberg’s faithful reproduction thus served “the interest of accuracy, not piracy.” Consumers Union, 724 F.2d at 1049.

Second, Bloomberg’s use did no harm to the legitimate copyright interests of the original author. Importantly, Swatch has admitted that it did not seek to profit from the publication of the Earnings Call in audio or written format. The copyright-protected aspects of the earnings call — that is, the manner by which the facts were expressed — thus were of no value to Swatch or Swatch Group except insofar as they served to convey important information to the analysts in attendance. But Bloomberg’s copying of the Swatch Group executives’ words, as needed to communicate factual information about the company’s earnings report, in no way diminished Swatch Group’s ability to communicate with analysts, and thus caused no harm to Swatch’s copyright interests. In this way, the case at bar stands in stark contrast to a case like Harper & Row, where a magazine disseminated an unpublished excerpt of President Ford’s memoirs. This kind of gun-jumping, which scooped the publication of the copyrighted work and, in doing so, did considerable harm to the value of the original author’s copyright, is not present here.

Our prior decisions in Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc., 166 F.3d 65 (2d Cir.1999), Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977), and Financial Information, Inc. v. Moody’s Investors Service, Inc. (“FII”), 751 F.2d 501 (2d Cir.1984), on which Swatch relies, are not to the contrary. In those cases, we rejected fair use arguments pressed by defendants who purported to be serving the public by providing access to important financial information. In Nihon and Wainwright, we stressed that the defendants had not supplemented or otherwise transformed the plaintiffs’ works. Instead, they had simply translated Japanese business articles into English, Nihon, or recounted the critical conclusions from research reports about major industrial and financial corporations, Wainwright. In FII, we rejected a fair use defense by a ratings agency that had copied information about municipal bond redemptions compiled by a competing financial publisher. Criticizing the district court’s conclusion that the defendant’s use served a “public function,” we stated that to so hold “would, it seems to us, state a rule that whenever there is a market for information, the paid delivery of goods to that market rises to a public function.” We rejected such a rule, finding that it would “distort” proper fair use analysis. Id.

In all three of those cases, however, the defendants attempted to use the banner of newsworthiness to supersede the core objects of original works whose production critically depended upon copyright protection. Finding fair use in those cases would have severely impeded the ability of news and research organizations to obtain payment for their expression, imperiling the economic foundation of vital industries. But unlike the arguments we rejected in Nihon, Wainwright, and FII, our decision today does not rest upon the newsworthiness of the original expression alone. To the contrary, we also place great weight on the absence of harm to the original author’s legitimate copyright interests. Swatch’s reliance on our prior cases is thus misplaced.

This first factor accordingly favors fair use.

[The court held that although the work was technically unpublished, “in light of the thinness of Swatch’s copyright, as well as Swatch Group’s prior dissemination of its executives’ expression,” the “nature of the work” factor favored fair use. The Second Circuit agreed with the district court “that Bloomberg’s use of the entire recording was reasonable in light of its purpose of disseminating important financial information to investors and analysts.” It thus held the “amount and substantiality of the use” weighed in neither party’s favor. The court also found that the “effect of the use upon the potential market for or value of the copyrighted work” favored Bloomberg. The district court noted that “the relevant market effect is that which stems from Bloomberg’s use of the original expression of Swatch Group’s senior officers.” Furthermore, it found nothing in the record to suggest any possible market effect stemming from Bloomberg’s use. The Second Circuit agreed, “especially in view of the obvious and furthermore conceded fact that Swatch had no interest in the exploitation of the copyright-protected aspects of the call.”]

Koons does not argue that his use was transformative solely because Blanch’s work is a photograph and his a painting, or because Blanch’s photograph is in a fashion magazine and his painting is displayed in museums. He would have been ill advised to do otherwise. We have declined to find a transformative use when the defendant has done no more than find a new way to exploit the creative virtues of the original work. … But Koons asserts — and Blanch does not deny — that his purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it.

… Koons is, by his own undisputed description, using Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media. His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “‘in the creation of new information, new aesthetics, new insights and understandings.’”

The test for whether “Niagara’s” use of “Silk Sandals” is “transformative,” then, is whether it “merely supersedes 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.” Campbell, 510 U.S. at 579. The test almost perfectly describes Koons’s adaptation of “Silk Sandals”: the use of a fashion photograph created for publication in a glossy American “lifestyles” magazine — with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects’ details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.

McKeown, Circuit Judge.

[In 2016, Dr. Seuss Enterprises L.P. sued ComicMix LLC alleging copyright infringement (among other things) in relation to Oh, The Places You’ll Boldly Go!, a comic book that combined elements of Dr. Seuss’ works with elements from the science fiction franchise Star Trek. The similarities between Boldly Go and the plaintiff’s works, including Oh, the Places You’ll Go!, were obvious (see the illustrations below) and far more extensive than in the Cat NOT in the Hat case (discussed above).

ComicMix purposely crafted its book so that the title, the story, and the illustrations would evoke Oh, The Places You’ll Boldly Go! Indeed, ComicMix tried to copy portions of Go! as accurately as possible. The ComicMix production team was instructed to keep to the sentiment of Oh, The Places You’ll Go! that “life is an adventure but it WILL be tough and there WILL be setbacks, and you should not despair of them.” The text of Boldly was created using a side-by-side chart comparing it to Go! in order to match the structure of the original work. Several of the illustrations in Boldly closely mimic their counterparts in Go!, and may fairly be described as nearly identical to their Seussian counterparts.

The district court held that Go! was not a parody but still qualified as fair use as a transformative work.] …

The first statutory factor examines “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). This factor has taken on a heightened significance because it influences the lens through which we consider two other fair use factors. The third factor—the amount and substantiality of use—“will harken back” to the first factor. See Campbell, 510 U.S. at 586. And the fourth factor, relating to market harm, is influenced by whether the commercial use was transformative. See Monge v. Maya Mags., Inc., 688 F.3d 1164, 1181 (9th Cir. 2012).

Although a commercial use is no longer considered presumptively unfair, the nature of the work remains “one element of the first factor enquiry.” Campbell, 510 U.S. at 584-85. As explained below, Boldly is not transformative, and its indisputably commercial use of Go! counsels against fair use. See Penguin Books, 109 F.3d at 1401 (commerciality “further cuts against the fair use defense” when there is “no effort to create a transformative work”).

The term “transformative” does not appear in § 107, yet it permeates copyright analysis because in Campbell, the Court interpreted the “central purpose” of the first-factor inquiry as determining “whether and to what extent the new work is ‘transformative.’” Campbell, 510 U.S. at 579. Transformative use of the original work can tip the first factor in favor of fair use.

A transformative work “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Id. On the other hand, a work that “merely supersedes the objects of the original creation” is not transformative. Id. While the analysis of the first fair use factor “may be guided by the examples given in the preamble to § 107,” i.e., criticism, comment, news reporting, teaching, scholarship, and research, id. at 578-79, not even these works compel “a per se finding of fair use,” Monge, 688 F.3d at 1173. Thus, we do not ask whether mash-ups can be fair use—they can be—but whether Boldly is a transformative work.

The purpose and character of a parody fits squarely into preamble examples —particularly “criticism” and “comment” —and has “an obvious claim” to transformative use. Campbell, 510 U.S. at 579. By definition, a parody must “use some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” Id. at 580. The need “to mimic an original to make its point” is the essence of parody. Id. at 580-81; see Penguin Books, 109 F.3d at 1400 (a parody must “conjure up” at least a part of “the object of the parody”). In short, a parody is a spoof, send-up, caricature, or comment on another work. A great example of a parody is the book The Wind Done Gone, which parrots portions of Gone with the Wind to offer a critical take on the book. See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1270-71 (11th Cir. 2001) (“It is hard to imagine” how a parody that attempts to “strip the romanticism” of slavery in Gone with the Wind can be made “without depending heavily upon copyrighted elements of that book.”). On the other hand, if

Campbell, 510 U.S. at 580.

Boldly is not a parody. ComicMix does not seriously contend that Boldly critiques or comments on Go!. Rather, it claims Boldly is a parody because it situated the “violent, sexual, sophisticated adult entertainment” of Star Trek “in the context of [Dr. Seuss]” to create a “funny” book. We considered and rejected this very claim in an appeal involving another well-known book by Dr. Seuss—The Cat in the Hat (Cat). The retelling of the O.J. Simpson double murder trial in the world of Cat—in a book titled The Cat NOT in the Hat! A Parody by Dr. Juice (Not)—was not a parody of Cat. Penguin Books, 109 F.3d at 1396, 1401. We explained that “broadly mimicking Dr. Seuss’s characteristic style” is not the same as “holding his style up to ridicule,” and that without a critique of Cat, all Not did was “simply retell the Simpson tale” using the expressive elements of Cat “to get attention or maybe even to avoid the drudgery in working up something fresh.” Id. at 1401.

Boldly’s claim to a parody fares no better. Although elements of Go! are featured prominently in Boldly, the juxtapositions of Go! and Star Trek elements do not hold Seussian style up to ridicule. From the project’s inception, ComicMix wanted Boldly to be a Star Trek primer that “evokes” rather than “ridicules” Go!. Similarly, Boldly’s use of the other Seuss works does not conjure up a critique of Go!. Boldly’s replacement of Grinch’s “‘Whos from Who-ville’ with the diverse crew and Kirk’s ‘lovers of every hue,’” the redrawing of “a Sneetches machine to signify the Enterprise transporter,” and the rendering of “the ‘lonely games’ played in Go!” as a “contemplative chess match between two Spocks” were all used to tell the story of the Enterprise crew’s adventures, not to make a point about Go!. Lacking “critical bearing on the substance or style of” Go!, Boldly cannot be characterized as a parody. Campbell, 510 U.S. at 580.

We also reject as “completely unconvincing” ComicMix’s post-hoc characterization of the work as criticizing the theme of banal narcissism in Go!. The effort to treat Boldly as lampooning Go! or mocking the purported self-importance of its characters falls flat.

Nor is Boldly otherwise transformative. ComicMix argues that even if Boldly is not a parody, Boldly is transformative because it replaced Seuss characters and other elements with Star Trek material. Again, the Cat case repudiates ComicMix’s position. There, efforts to leverage Dr. Seuss’s characters without having a new purpose or giving Dr. Seuss’s works new meaning similarly fell short of being transformative. The copyists “merely used” what Dr. Seuss had already created—e.g., “the Cat’s stove-pipe hat, the narrator (“Dr. Juice”), and the title (The Cat NOT in the Hat!)”—and overlaid a plot about the O.J. Simpson murder trial without altering Cat “with ‘new expression, meaning or message.’” Penguin Books, 109 F.3d at 1401 (quoting Campbell, 510 U.S. at 578). For the same reasons, ComicMix’s efforts to add Star Trek material on top of what it meticulously copied from Go! fail to be transformative.

Notably, Boldly lacks the benchmarks of transformative use. These telltale signs of transformative use are derived from the considerations laid out in Campbell, our north star, and Seltzer v. Green Day, Inc. from our circuit: (1) “further purpose or different character” in the defendant’s work, i.e., “the creation of new information, new aesthetic, new insights and understanding”; (2) “new expression, meaning, or message” in the original work, i.e., the addition of “value to the original”; and (3) the use of quoted matter as “raw material,” instead of repackaging it and “merely superseding the objects of the original creation.” See Campbell, 510 U.S. at 579. Boldly possesses none of these qualities; it merely repackaged Go!.

Boldly’s claim to transformative use rests on the fact that it has “extensive new content.” But the addition of new expression to an existing work is not a get-out-of-jail-free card that renders the use of the original transformative. The new expression must be accompanied by the benchmarks of transformative use. See, e.g., Seltzer, 725 F.3d at 1177-78; Cariou v. Prince, 714 F.3d 694, 706 (2d Cir. 2013); Blanch v. Koons, 467 F.3d 244, 251-52 (2d Cir. 2006).

Instead of possessing a further purpose or different character, Boldly paralleled Go!’s purpose. In propounding the same message as Go, Boldly used expression from Go! to “keep to [Go!’s] sentiment.” Absent new purpose or character, merely recontextualizing the original expression by “plucking the most visually arresting excerpts” of the copyrighted work is not transformative. L.A. News Serv. v. CBS Broad., Inc., 305 F.3d 924, 938-39 (9th Cir. 2002). By contrast, reconstituting copyrighted expression was for a new, transformative purpose when a “seven-second clip of Ed Sullivan’s introduction of the [band] Four Seasons on The Ed Sullivan Show” was used in the musical Jersey Boys, not to introduce the band’s performance, but to serve “as a biographical anchor” about the band. SOFA Ent., Inc. v. Dodger Prods., Inc., 709 F.3d 1273, 1276, 1278 (9th Cir. 2013).

Boldly also does not alter Go! with new expression, meaning, or message. A transformative work is one that alters the original work. While Boldly may have altered Star Trek by sending Captain Kirk and his crew to a strange new world, that world, the world of Go!, remains intact. Go! was merely repackaged into a new format, carrying the story of the Enterprise crew’s journey through a strange star in a story shell already intricately illustrated by Dr. Seuss. Unsurprisingly, Boldly does not change Go!; as ComicMix readily admits, it could have used another primer, or even created an entirely original work. Go! was selected “to get attention or to avoid the drudgery in working up something fresh,” and not for a transformative purpose. Campbell, 510 U.S. at 580.

Most telling is ComicMix’s repackaging of Go!’s illustrations. The Star Trek characters step into the shoes of Seussian characters in a Seussian world that is otherwise unchanged. ComicMix captured the placements and poses of the characters, as well as every red hatch mark arching over the handholding characters in Grinch’s iconic finale scene, then plugged in the Star Trek characters. (The Seuss images always appear to the left of the Boldly! images juxtaposed in this opinion.)

ComicMix copied the exact composition of the famous “waiting place” in Go!, down to the placements of the couch and the fishing spot. To this, ComicMix added Star Trek characters who line up, sit on the couch, and fish exactly like the waiting place visitors they replaced. Go! continues to carry the same expression, meaning, or message: as the Boldly text makes clear, the image conveys the sense of being stuck, with “time moving fast in the wink of an eye.”

ComicMix also copied a scene in Sneetches, down to the exact shape of the sandy hills in the background and the placement of footprints that collide in the middle of the page. Seussian characters were replaced with Spocks playing chess, making sure they “had similar poses” as the original, but all ComicMix really added was “the background of a weird basketball court.”

ComicMix likewise repackaged Go!’s text. Instead of using the Go! story as a starting point for a different artistic or aesthetic expression, Hauman created a side-by-side comparison of the Go! and Boldly texts in order “to try to match the structure of Go!.” This copying did not result in the Go! story taking on a new expression, meaning, or message. Because Boldly “left the inherent character of the [book] unchanged,” it was not a transformative use of Go!. Monge, 688 F.3d at 1176.

Although ComicMix’s work need not boldly go where no one has gone before, its repackaging, copying, and lack of critique of Seuss, coupled with its commercial use of Go!, do not result in a transformative use. The first factor weighs definitively against fair use.

[The court also held that the remaining fair use factors weighed against the defendant and that Boldly had not made a fair use of the plaintiff’s works. In relation to the third fair use factor, the amount and substantiality of the original work used, the court was careful to note the relationship between the first and third factors. The panel noted that “the extent of permissible copying varies with the purpose and character of the use,” citing Campbell, 510 U.S. at 586-87. However, given that the panel had already decided that the defendant’s book was neither parody nor transformative in any other way, this only gave the defendant a larger hill to climb. According to the court, about 60% of the defendant’s book (14 of 24 pages) were copied from Go! and other Seuss works. The court concluded:]

Given the absence of a parody or a transformative work, ComicMix offers no justification for the commercial exploitation and the extensive and meticulous copying of Go!. In fact, after the case was initiated, Gerrold offered to “replace the stuff that’s too dead on,” demonstrating that the mash-up “based on Dr. Seuss’s artwork” could have been created without wholesale copying of the work. The third factor weighs decisively against fair use.

[On the final factor, “the effect of the use upon the potential market for or value of the copyrighted work” the court concluded “that ComicMix’s non-transformative and commercial use of Dr. Seuss’s works likely leads to “cognizable market harm to the original.” Campbell, 510 U.S. at 591.” Beyond these factors, the court took particular note of the fact that Go! is an extremely popular gift around high school and college graduations and that ComicMix had intentionally targeted and aimed to capitalize on the same graduation market. Moreover, the court noted that the Seuss/Star Trek mashup was not unlike several authorized derivative works the copyright owner had already licensed, including: Oh, The Things You Can Do That Are Good For You!; Oh, the Places I’ll Go! By ME, Myself; Oh, Baby, the Places You’ll Go!; and Oh, the Places I’ve Been! A Journal. The court continued:]

Works like Boldly would curtail Go!’s potential market for derivative works. This is not a case where the copyist’s work fills a market that the copyright owner will likely avoid, as is true for “a lethal parody” or “a scathing theater review.” Campbell, 510 U.S. at 591-92. In fact, ComicMix hoped to get to one of the potential markets for Seuss’s derivative works before Seuss, believing that Seuss would “want to publish it themselves and give [ComicMix] a nice payday.”

Crucially, ComicMix does not overcome the fact that Seuss often collaborates with other creators, including in projects that mix different stories and characters. Seuss routinely receives requests for collaborations and licenses, and has entered into various collaborations that apply Seuss’s works to new creative contexts, such as the television and book series entitled The Wubbulous World of Dr. Seuss, a collaboration with The Jim Henson Company, famous for its puppetry and the creation of other characters like the Muppets. Other collaborations include a digital game called Grinch Panda Pop, that combines Jam City’s Panda character with a Grinch character; figurines that combine Funko Inc.’s toy designs with Seuss characters; and a clothing line that combines Comme des Garçons’ heart design with Grinch artwork.

Finally, ComicMix does not address a central aspect of market harm set out in Campbell—“whether unrestricted and widespread conduct of the sort engaged in” by ComicMix would undermine Seuss’s potential market. 510 U.S. at 590. This aspect is particularly significant here because of Seuss’s strong brand. ComicMix’s effort to use Seuss’s success against it falls flat. As noted by one of the amici curiae, the unrestricted and widespread conduct of the sort ComicMix is engaged in could result in anyone being able to produce, without Seuss’s permission, Oh the Places Yoda’ll Go!, Oh the Places You’ll Pokémon Go!, Oh the Places You’ll Yada Yada Yada!, and countless other mash-ups. Thus, the unrestricted and widespread conduct of the sort engaged in by ComicMix could “create incentives to pirate intellectual property” and disincentivize the creation of illustrated books. Monge, 688 F.3d at 1182. This is contrary to the goal of copyright “to promote the Progress of Science.” U.S. Const. art. I, § 8, cl. 8.