Case Information
‐ ‐ cv v. In the
United States Court of Appeals
for the Second Circuit A UGUST T ERM No. ‐ ‐ cv
J AIME K EELING ,
Plaintiff ‐ Counter ‐ Defendant ‐ Appellee ,
E VE H ARS , Defendant ‐ Appellant , N EW R OCK T HEATER P RODUCTIONS , LLC, A N EW Y ORK LIMITED LIABILITY COMPANY Defendant ‐ Counter ‐ Claimant E THAN G ARBER
Defendant [*]
Appeal United States Court Southern New York No. 1:10 cv 9345—Thomas P. Griesa, Judge
S UBMITTED : J UNE 26, D ECIDED : O CTOBER
Before: C ABRANES , L IVINGSTON , D RONEY , Circuit Judges
The primary question presented whether an unauthorized work makes source may itself protected by copyright.
We hold, for substantially reasons stated United States District for Southern District New York (Thomas P. Griesa, Judge ), that, creator stays within bounds adds sufficient originality, she claim under Act, for contributions. reject defendant’s challenges Court’s charge. Court’s January judgment therefore AFFIRMED.
S TEVEN P ARADISE Vinson & Elkins LLP, New York, NY, Plaintiff ‐ Counter ‐ Defendant Appellee.
E VE H ARS pro se Los Angeles, CA, Defendant Appellant.
J OSÉ A. C ABRANES Circuit Judge:
The primary question presented is whether an unauthorized work makes source may itself protected by copyright.
We hold, for substantially reasons stated by United States District Southern District New York (Thomas P. Griesa, Judge ), that, creator an stays within bounds and adds sufficient originality, she claim under Act, contributions. reject defendant’s challenges Court’s charge. The Court’s January judgment therefore AFFIRMED.
BACKGROUND
Plaintiff ‐ Appellee Jaime Keeling author Point Break Live! (“ PBL ”), parody stage adaptation Hollywood action movie Point Break starring Keanu Reeves and Patrick Swayze. film, Reeves plays rookie FBI agent who goes undercover infiltrate gang bank robbing surfers led Swayze’s character. Keeling authored parallels characters plot elements from Point Break relies almost exclusively selected dialogue screenplay. To raw material, added jokes, props, exaggerated staging, humorous theatrical devices transform dramatic plot dialogue film into *4 irreverent, interactive theatrical experience. For example, in Keeling’s PBL parody, Point Break ’s death ‐ defying scene in which Reeves’s character must pick up bricks, blindfolded, in a swimming pool takes place, instead, in a kiddie pool. Massive waves in the film are replaced by squirt guns in PBL parody. A central conceit PBL parody Keanu Reeves character selected random from audience and reads his lines from cue cards, thereby lampooning Reeves’s reputedly stilted performance movie. Keeling added to effect audience watching making film creating set film ‐ production characters PBL parody, including director, cinematographer, production assistants. Keeling possesses no license with regard to Point Break motion picture.
Defendant ‐ Appellant Eve Hars, proceeding pro se appeal, owns production company New Rock Theater Productions, LLC (“New Rock”). Keeling executed production agreement with Hars, pursuant New Rock would stage two month production run PBL October through December During time period, Hars conferred entertainment attorney holder Hollywood screenplay Point Break eventually Hars came believe Keeling did lawfully own any rights PBL play. Accordingly, after its initial two month run, sought renegotiate terms contract upon expiration and, effect, continue produce without further payment Keeling. refused renegotiation, threatened suit, registered *5 copyright PBL , without first obtaining permission from copyright holders Point Break Keeling’s asserted copyright PBL became effective on January 4, New Rock continued stage performances PBL for four years thereafter without payment authorization Keeling.
In December 2010, Keeling brought suit against Hars, New Rock, New Rock investor Ethan Garber, asserting claims for copyright infringement, breach contract, tortious interference contract. District Court proceedings, all parties were represented counsel. After District Court denied defendants’ motion dismiss, see Keeling v. New Rock Theater Prods., LLC No. 10 Civ. 9345 (TPG), 2011 WL *1 (S.D.N.Y. May 17, 2011), defendants asserted counterclaims seeking, inter alia declaration that Keeling’s PBL copyright registration was invalid. Upon completion discovery, defendants moved summary judgment, arguing primarily PBL derivative work, was entitled protection matter law. The Court denied defendants’ successive motions summary judgment, ruling makes another copyrighted contain sufficient originality merit itself. See Keeling v. New Rock Theater Prods., LLC, No. Civ. (TPG), 2011 WL 6202796 (S.D.N.Y. Dec. 2011); New Rock Theater Prods., LLC, No. Civ. (TPG), WL (S.D.N.Y. Nov. 2012). rejected defendants’ argument heavily reliant theatrical devices, ’s, could lawfully constitute *6 original creative expression deserving copyright protection. WL at *1 Finally, the Court found multiple outstanding issues fact remained—including whether PBL constituted a “fair use” parody Point Break and whether PBL contained sufficient originality merit copyright protection. Id. December the case proceeded a five ‐ day trial by jury. At close the evidence, the parties delivered summations focused largely on whether PBL was a parody at all, if so, whether parody constituted non infringing “fair use.” Record on Appeal (“ROA”), New Rock Theater Prods., LLC No. Civ. (TPG) (GWG), Dkt. No. at (S.D.N.Y. Dec. 2012). The District Court then charged jury, beginning first question would be asked answer: “whether [ ] a way a original movie Point Break.” Id. 652. The Court declined enumerate each four statutory factors pertaining “fair use,” opting instead attempt “put little more content on discussion,” believed “list factors” alone lacked. Id. pertinent instructions on were follows:
Now, person who creates derivative work has derivative work. Now, if derivative work is simply somehow really copy original then it somehow called derivative work but it infringes on owner original. But it what call then it is infringement it new has own author *7 the creator of the new owns that as well as owns the new work. . . .
The plaintiff contends that [ ] is a fair use of sections of the script of the original movie. plaintiff contends that is fair use a parody and a parody, certainly, can fair use. . .
A proper parody is something which generally ridicules to some extent, makes fun of, makes light of the original. Suppose the original is the very serious drama some kind and if someone comes along and makes a parody, it is generally turning it into something different, humorous, ridiculous. And if that is done it is fair use to use even substantial amounts the script the original movie. It is to even high points the high point long it is simply conveying again original movie. If it takes script original movie creates something uses that script to ridicule make fun of, make light produce humor instead original seriousness, then is legitimate parody.
Now, amount script taken cannot completely go beyond needs parody. other words, if parody is for, if could imagine, third it is legitimate copy other two thirds put them out again. But amount used is reasonably related production humor, ridicule, lightheartedness so forth is legitimate is use. Now, sometimes said judge instructing supposed refer *8 list factors. The list of factors a list of factors without much content meaning. And what I am trying do you now refer necessary factors but I hope put little more content on discussion. And really that ʹ s all I have say define way parody.
Id. at 55. No party objected District Court’s jury instructions. Id. 668.
The jury returned verdict in Keeling’s favor in amount $250,000, finding (a) Keeling’s film Point Break was in way parody,” (b) sole owner (c) defendants infringed Keeling’s copyright. Id. 77. District entered judgment January
Defendant Hars, now proceeding pro se appealed. She challenges District Court’s denial her pretrial motion summary judgment as well as subsequent jury verdict favor Keeling.
DISCUSSION
Though not model clarity, Hars’s appellate briefing primarily raises three issues: first , whether PBL , use,” entitled capable supporting Keeling’s claim infringement third party; second , whether Keeling’s contributions work—consisting individually non ‐ copyrightable elements—could be sufficient support ; third whether Court’s instructions were erroneous. first two issues relate same question: whether Keeling’s was copyrightable. We consider each issue turn.
I. Challenges Law In general, “where summary judgment denied movant subsequently loses after full trial merits, denial summary judgment appealed.” Schaefer v. State Ins. Fund F.3d (2d Cir. 2000) (internal quotation marks omitted). However, rule does apply where, here, district court’s purported error “purely one law.” Id. such circumstances, review de novo legal issues underlying district court’s denial summary judgment. Id.
*10 The Copyright Act principally offers copyright protection “original works of authorship.” 17 U.S.C. § 102(a). Pursuant statute’s terms, authors may control copying of their original works also retain “the exclusive rights” “prepare derivative works based upon copyrighted work.” [3] 17 U.S.C. § 106. Thus, derivative works are typically afforded no copyright because they unlawfully infringe exclusive rights of original author. Id. ; see id. § 103 (“[P]rotection a work employing preexisting material in which copyright subsists does extend any part of work in which such has been used unlawfully.”).
The doctrine of constitutes a critical long ‐ standing limitation exclusive rights original copyright owner. [4] Though only made a part statutory copyright law in 1976, “[f]rom infancy copyright protection, some opportunity *11 for fair use of copyrighted materials has been thought necessary fulfill copyright’s very purpose, ‘to promote Progress of Science and useful Arts.’” Campbell Acuff ‐ Rose Music, Inc. 510 U.S. 575 (1994) (alterations omitted) (quoting U.S. C ONST ., Art. I, § cl. 8). Under Section 107 of Copyright Act, certain “fair use of a copyrighted work,” for purposes such criticism, comment, news reporting, teaching, scholarship and research, “is not infringement of copyright” and thus is lawful. [5] 17 U.S.C. § 107. While is not expressly mentioned in statute, Supreme has instructed “parody, like other comment or criticism, claim use under § 107.” Campbell U.S. at 579. case, Hars does dispute jury’s factual determination Keeling’s use of Point Break in her creation was “fair use in way of parody.” ROA, Dkt. No. Indeed, she repeatedly disclaims any challenge, explaining she “is concerned about whether Keeling’s script is use Point Break because is completely irrelevant any and all Hars’ arguments.” Def.’s Reply Br. 20; see id. (“[T]he issue whether Keeling’s qualifies use astutely consciously avoided brief. . . Hars is not asking spend even one second valuable time trying determine whether Keeling’s qualifies fair use.”).
Instead, Hars presents two legal arguments why copyright should not extend Keeling’s work, both which were first raised defendants’ summary judgment briefing and denied by Court.
A. Copyright Protection: Fair Use
First, argues derivative work like PBL categorically receive independent protection, regardless whether it makes fair source material. [6] This argument flows from admittedly unusual posture this case arises. Typically, fair invoked as a defense against a claim infringement brought by source ‐ *13 rightsholder. Here, however, Keeling invoked the ‐ use principle establish an affirmative claim against defendants unauthorized parody. concedes that could use “fair doctrine a “shield” against a claim copyright infringement, but argues that she may doctrine “sword” vest work with independent copyright protection against third party infringement. Def.’s Br. 14.
This argument inconsistent operative statutory language. Act provides derivative works are entitled “independent” copyright protection, separate from any copyright in preexisting material. U.S.C. § 103(b). Though copyright protection expressly extend derivative works “employing preexisting material in which copyright subsists,” statute cautions protection “does extend any part work in such material has been used unlawfully .” U.S.C. § 103(a) (emphases supplied). If, however, work employs preexisting copyrighted material lawfully —as in case use”—nothing in statute prohibits extension “independent” protection promised by Section Id. § 103(b). A close reading statute therefore makes plain but lawful employing preexisting copyrighted may itself merit copyright protection. It not the invocation fair use that provides the work copyright protection, perhaps thinking so has created some confusion the part defendant. It the originality the derivative work that makes it protectable, fair serves only render lawful derivative work, such it acquire—as would other lawful derivative works—such protection.
Resisting this statutory principle, argues case law does not permit extension independent copyright protection an unauthorized use, contends only court have dealt issue found “Congress did not contemplate such” result. Def.’s Br. (quoting Sobhani @Radical.Media, Inc. F. Supp. 2d (C.D. Cal. 2003)). But fact, Congress did expressly contemplate extension copyright where, here, work constituted non ‐ infringing use. relevant legislative report stated that,
[u]nder provision [( i.e. Section 103(a) Act)], could be obtained long preexisting work ”unlawful,” even though consent owner had been obtained. For instance, reproduction work might be ”lawful” under doctrine applicable foreign law, so incorporating could copyrighted H.R. Rep. No. (1976) (emphases supplied). This language addresses precisely issue raised instant appeal. *15 Although “the consent copyright owner”—here, rightsholder in Hollywood screenplay Point Break —“had been obtained” by Keeling, her resulting “’lawful’ under doctrine fair use,” accordingly, “could be copyrighted.” have previously confirmed that, because “[d]erivative
works are explicitly included subject matter copyright defined Act,” mere fact litigant’s unauthorized “creations are derivative works is itself, course, no bar copyrightability.” Durham Indus., Inc. Tomy Corp. F.2d (2d Cir. 1980) (citing § 103). And statutory interpretation consistent with animating policy behind use doctrine—to fulfill copyright’s core purpose promoting development arts science. See Campbell U.S. at Without any possibility protection against infringement her original parody, playwrights like Keeling might dissuaded creating all.
Accordingly, agree Court’s holding that, when derivative work’s preexisting contains sufficient originality, author claim under creative contributions. See WL *1.
B. Copyright Protection: Selection, Coordination, Arrangement of Un Protectable Elements
Hars’s second legal argument fares no better. contends author’s original contributions derivative consist solely non copyrightable individual elements, those contributions cannot support copyright. Specifically, she claims Keeling’s contributions are insufficient warrant copyright protection because they consist entirely non ‐ copyrightable stage directions theatrical devices. See U.S.C. § 102(b) (providing copyright does not extend “any idea, procedure, process, system, method operation, concept, principle, or discovery, regardless form which described, explained, illustrated, or embodied such work”). disagree. As properly found, law protects only individual elements themselves, but creative choices made selecting arranging even un ‐ copyrightable elements. Indeed, Act itself explicitly protects “compilations,” long line case law confirms covers compilations raw data or facts, elements are themselves protectable, so long compilation itself (including arrangement those elements) possesses some “minimal degree” creativity, “no matter how crude, humble obvious.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. U.S. (1991) (internal quotation marks omitted); see Harper & Row Nation Enters. U.S. (1985) (“Creation nonfiction work, even compilation pure fact, entails *17 originality.”); Silverstein v. Penguin Putnam, Inc. , 368 F.3d 80 (2d Cir. 2004) (“It is well settled that compilations of fact may be copyrightable even though facts themselves are not protected”). Supreme Court has made clear that even telephone directory may be copyrighted its non copyrightable factual elements are arranged requisite “minimal degree” originality. See Feist , 499 U.S. 340. Keeling’s original contributions to PBL clearly exceed this creativity threshold. [8]
To be sure, is correct Keeling could commonly used individual stage directions theatrical devices— e.g. , concept drafting an audience member play lead, reliance on cue cards, or use squirt guns—which together comprise PBL ’s jokes. But has never sought do so. Rather, correctly held, “Keeling’s creative *18 contribution, and thus her copyright, is way [she] has selected, coordinated, and arranged elements . . work” to create new parodic meaning. v. New Rock Theater Prods., LLC , No. 10 Civ. 9345 (TPG), 2013 WL 918553, *2 (S.D.N.Y. Mar. 11, 2013) (internal quotation marks omitted) (quoting Knitwaves, Inc. v. Lollytogs Ltd. F.3d (2d Cir. 1995)).
Hars’s legal challenges to jury’s infringement verdict thus fail.
II. Challenges Jury Instructions now turn Hars’s challenges Court’s jury instructions. Because failed object charge trial, review these claims “plain error,” will only grant relief if there “(1) error, (2) is plain, (3) affects substantial rights, (4) error seriously affects fairness, integrity, or public reputation judicial proceedings.” United States v. Weintraub F.3d (2d Cir. 2001) (alterations internal quotation marks omitted); see Fed. R. Civ. P. 51(d)(2) (“A court consider plain error instructions has been preserved required Rule 51(d)(1) if error affects substantial rights.”). “A jury charge erroneous if it misleads jury correct legal standard, if does adequately inform jury law.” Hathaway Coughlin F.3d (2d Cir. 1996). Conversely, “a jury instruction will deemed adequate charge, taken whole, correct sufficiently covers case so can intelligently determine questions presented *19 it.” Id. 553 (internal quotation marks omitted). have previously observed that plain ‐ error exception to Rule 51’s objection requirement “should only invoked extreme caution civil context.” Rasanen v. Doe , 723 F.3d 325, 333 (2d Cir. 2013) (internal quotation marks omitted) (quoting Pescatore v. Pan Am. World Airways, Inc. , 97 F.3d 18 (2d Cir. 1996)). “To constitute plain error, court’s action must contravene established rule law, go to very essence case.” Id. (alterations, citation, internal quotation marks omitted) (quoting Lavin McEleney v. Marist Coll. , F.3d (2d Cir. 2001); Anderson Branen , F.3d (2d Cir. 1994)).
Hars contends that jury instructions were erroneous two respects: first she argues that District Court improperly excused proving that her contributions were sufficient merit protection; second she argues that District Court failed enumerate four statutory factors instructions jury. Neither constitutes plain error.
A. Originality Instruction first challenge jury charge, Hars argues
District Court failed charge “[o]riginality constitutional requirement” “ sine qua non copyright.” Feist U.S. 46; see Def.’s Br. Hars points out Court never provided separate instruction originality jury. contends misrepresented *20 the governing law suggesting a finding of fair use would automatically entitle to protection. characterizes position the “fair use = copyright” equation, and attacks the equation implicitly excusing offering the necessary proof of original, protectable contributions. Def.’s Br. 15.
Admittedly, Court did offer discrete, explicit instruction on requirement of originality. Instead, it collapsed aspects both fair use and originality into single set instructions. The charge did, however, sufficiently instruct on originality requirement survive plain error review. explanation use, Court distinguished between infringing “copy original” non infringing “new work.” ROA, Dkt. No. went explain kind originality required parody merit “its own copyright” protection:
A proper is something which generally ridicules some extent, makes fun of, makes light original. Suppose original is very serious drama some kind if someone comes along makes parody, it is generally turning it into something different, humorous, ridiculous. And is done it is use even substantial amounts script original movie. It even high points high point long it simply conveying again original movie. If takes script movie creates something uses ridicule make fun of, make light of produce humor instead original seriousness, then legitimate parody.
Id. at 654 55. Without using word “originality,” Court thus indicated protectable fair use must be “new,” must “turn[ ] [the material] into something different,” and must avoid “simply conveying again original” material. Id.
These jury instructions adequately trace law and, more specifically, underlying concepts transformative purpose and character, are acknowledged “[t]he heart inquiry” general, On Davis v. Gap, Inc. , 246 F.3d 174 (2d Cir. 2001), “the heart any parodist’s claim” particular, Campbell U.S. 580. See Blanch v. Koons , 467 F.3d (2d Cir. 2006) (a new work transformative when it transforms “raw material” underlying “in creation new information, new aesthetics, new insights understandings” (quoting Castle Rock Entm’t, Inc. Carol Publ’g Grp., Inc. F.3d (2d Cir. 1998))).
It would arguably have been preferable deliver separate instructions originality. Nevertheless, combination these elements into one instruction does “contravene established rule law.” Rasanen F.3d Even combination was error, would still conclude affected Hars’s substantial rights. “[T]aken whole,” charge legally “correct,” alerted jury issue originality, “sufficiently cover[ed] case so *22 [could] intelligently determine the questions presented it.” Hathaway , 99 F.3d at 553 (internal quotation marks omitted). Proceeding the requisite “extreme caution in the civil context,” Rasanen 723 F.3d at hold the Court did not plainly err in delivering its originality instruction.
B. Statutory Factors Instruction likewise reject Hars’s challenge the Court’s
failure explicitly enumerate in its instructions all four the ‐ factors listed in 17 U.S.C. §
As legal matter, the four factors do not each carry equal weight in evaluation parody as use; indeed, some not be relevant at all. As noted, the first factor—“the purpose character use,” 17 107—lies at the “heart the inquiry” for parody, while other three factors are much less important. [9] Indeed, Supreme has instructed, “the more *23 transformative the new [under factor one], the less will be the significance other factors . . weigh against finding use.” Campbell U.S. at
In line this hierarchy significance, the Court’s charge emphasized the question transformative under first statutory factor. The Court mentioned the third factor only briefly (“the amount taken cannot completely go beyond needs parody,” ROA, Dkt. No. 655), did not refer second fourth factors all. find stated rationale—the desire “put little more content on discussion,” “list factors” alone lacked, id .—to understandable, if advisable. safer course trial judge explain application all four factors, however briefly, based on circumstances presented.
Nonetheless, even if assumed failure describe all four factors was error, error did affect Hars’s substantial rights. order show plain error affecting “substantial rights,” litigant must typically show error “prejudicial: It must have affected outcome district court proceedings.” Bennett v. United States F.3d (2d Cir. 2011) (emphasis internal quotation marks omitted) (quoting United States Olano U.S. (1993)). presented no evidence would tend support different verdict use,” even if (“[T]he third factor [has] little, any, weight against so long first fourth factors favor parodist.”). *24 had covered four factors in detail. On contrary, Hars herself effectively concedes point disclaiming any challenge finding fair use. See Def.’s Reply Br. (“[A]t no time did even imply, never mind argue Keeling’s fair Point Break .” (emphasis in original)). Without showing prejudice Hars’s substantial rights, challenge jury instructions on necessarily fails.
CONCLUSION
To summarize, we hold that:
(1) author exhibiting sufficient originality may claim independent protection under Act, against infringement creative contributions therein;
(2) extend exhibits sufficient minimal degree originality selecting, coordinating, arranging otherwise un protectable underlying elements;
(3) did err delivering its instructions originality use.
Having rejected each defendant Hars’s arguments, AFFIRM Court’s January judgment entirety.
[*] Clerk directed amend official caption case conform above.
[1] Although suggests her reply brief she does fact challenge Court’s denial her pretrial motion summary judgment instead appeals only “the pure legal issues raised” therein, see Def.’s Reply Br. treat appeal, taken whole, as challenge Court’s denial summary judgment well subsequent verdict.
[2] construe submissions pro se litigant liberally interpret them “to raise strongest arguments they suggest .” Triestman Fed. Bureau Prisons F.3d (2d Cir. 2006) (emphasis original) (internal quotation marks omitted).
[3] Section 101 Act defines a “derivative work” “a work based upon one or more preexisting works” such translation, fictionalization, “or any other form in work recast, transformed, or adapted.” 17 definition further notes such work can consist “editorial revisions, annotations, elaborations, other modifications which, whole, represent authorship.” Id.
[4] See generally Authors Guild Google, Inc. No. cv, ‐‐ F.3d ‐‐ WL *5 (2d Cir. Oct. 2015) (“For nearly three hundred years, since shortly after birth England in courts have recognized that, certain circumstances, giving authors absolute control over all copying their works would tend some circumstances limit, rather than expand, public knowledge.” (footnote omitted)); Pierre N. Leval, Toward Fair Use Standard H ARV L. R EV . (1990) (discussing doctrine within context history objectives law).
[5] Act lists four non exhaustive factors for courts consider determining whether is “fair”: “(1) purpose character use, including whether such commercial nature or nonprofit educational purposes; (2) nature copyrighted work; (3) amount substantiality portion used relation copyrighted whole; (4) effect upon potential market value copyrighted work.”
[6] Both parties characterize PBL a “derivative work.” See Def.’s Br. 1 ‐ 3, ‐ ‐ ‐ 51; Pl.’s Br. 1, 9, ‐ 32. note that, a general matter, “derivative works” and are discrete legal categories. Under Act, derivative work involves a transformation work’s “form,” U.S.C. § while fair involves transformation work’s “purpose and character,” both—it involves dramatization motion picture, making it derivative work, it involves transformation motion picture’s character serious parody, making non infringing use. parties here seem confuse distinction between derivative works use. Nonetheless, because neither party has raised issue appeal, because our analysis applies equally derivative non derivative works so long constitutes lawful use, need further address questions raised parties’ characterization.
[7] To sure, independent new work limited work’s content: “[C]opyright compilation derivative extends only material contributed author such work, distinguished preexisting employed work.” 103(b).
[8] similarly reject Hars’s related argument Point Break improperly “pervade[s]” PBL contravention Eden Toys, Inc. v. Florelee Undergarment Co ., 697 F.2d 27 (2d Cir. 1982), superseded rule other grounds recognized Fed. Treasury Enter. Sojuzplodoimport v. SPI Spirits Ltd. 726 F.3d 84 (2d Cir. 2013) See Def.’s Br. 35 To extent even applies this case, uncertain, Eden Toys requires merely “some substantial, merely trivial, originality” meet standard sufficient originality. F.2d at (internal quotation marks omitted). ’s transformative parody fulfills standard, its use substantial portion underlying work presents no hindrance findings either originality. Cf. Campbell U.S. at (“When takes aim particular original work, parody must be able conjure up least enough original make object critical wit recognizable.” (internal quotation marks omitted)); Bill Graham Archives Dorling Kindersley Ltd. F.3d (2d Cir. 2006) (holding even entire permissible use, so long “tailored further [the new work’s] transformative purpose”).
[9] See Campbell U.S. at 586 (the second factor—the nature original copyrighted work—“is . . . ever likely help much separating sheep infringing goats parody case, since parodies almost invariably copy publicly known, expressive works”); id. at (the third factor— amount substantiality portion original used—is less important, “parody must able ‘conjure up’ least enough original make object critical wit recognizable”); id. (as fourth factor—the effect market for value original copyrighted work—“it more likely [a parody] will affect market original way cognizable under factor, is, acting substitute . . [,] because usually serve different market functions”). See Leibovitz Paramount Pictures Corp. F.3d (2d Cir. 1998)