Direct Infringement

Elements
To prove direct infringement, a plaintiff must first prove that the defendant
copied the protected work. Kelly v. Arriba Soft Corp., 336 F.3d 811, 817 (9th
Cir. 2003) ("the plaintiff must show ownership of the copyright and copying
by the defendant.); see also LGS Architects, Inc. v. Concordia Homes of
Nev., 434 F.3d 1150, 1156 (9th Cir. 1996) (A plaintiff must meet two
requirements to establish a prima facie case of copyright infringement: (1)
ownership of the allegedly infringed material and (2) violation by the alleged
infringer of at least one of the exclusive rights granted to copyright
holders.).
Copying may be proven by either direct evidence, which is rare, or by
indirect evidence that shows (1) the defendant had access to plaintiffs work,
and (2) the defendants work has probative similarity. See, e.g., Gates
Rubber Co. v. Bando Chem. Indus., 9 F.3d 823, 832 (10th Cir.
1993); Computer Assoc. Intl, Inc. v. Altai, Inc., 982 F.2d 693, 701 (2d Cir.
1992) (requiring substantial similarity). "The word copying is shorthand
for the infringing of any of the copyright owners exclusive rights, described"
in 17 U.S.C. 106. S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1085, n.3 (9th
Cir. 1989). The degree of similarity needed to infer that copying has occurred
will vary from case to case, but a plaintiff must show evidence sufficient that
a reasonable fact finder, considering both access and similarity of the works,
could find that the second work was copied from the first. See Gates Rubber
v. 'Bando, 9 F.3d at 833 n.9. The plaintiff must also show that the copying
was a result of a volitional act. See Religious Tech. Ctr v. Netcom On-Line
Commcn Servs., Inc., 907 F. Supp. 1361, 1369-70 (N.D. Cal. 1995).
The plaintiff also must show that those elements of a work that have been
copied are protected expression and of such importance to the copied work
that the appropriation of these protected elements is actionable. See id. at
832; Engineering Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335,
1341 (5th Cir. 1994). The materiality component is important because not all
copying constitutes copyright infringement. See Feist Publications v. Rural
Tel. Serv. Co., 499 U.S. 340, 361 (1991) (The mere fact that a work is
copyrighted does not mean that every element of the work may be
protected.). Thus, unprotectable elements of a work cannot serve as basis
for liability for copyright infringement; liability will only attach where
protected elements of a copyrighted work are copied. Gates Rubber v.
Bando, 9 F.3d at 833.
Public Display Right
The Copyright Act defines a public display as one that has been transmitted
or otherwise communicated to the public. 17 U.S.C. 101; see also 17 U.S.C.
106(5)3. A display is public if it is displayed at a place open to the public or

at any place where a substantial number of persons outside of a normal

circle of a family and its social acquaintances is gathered." 17 U.S.C. 101.
"[O]ne must conclude that under the transmit clause a public performance at
least involves sending out some sort of signal via a device or process to be
received by the public at a place beyond the place from which it is
sent. Columbia Pictures Indus., Inc. v. Professional Real Estate Investors,
Inc., 866 F.2d 278, 281-82 (9th Cir. 1989).
In Allarcom Pay Television, Ltd. v. General Instrument Corp., 69 F.3d 381, 387
(9th Cir. 1995), the court considered whether a transmission sent from the
United States but received in Canada constituted an act of direct
infringement under U.S. copyright law. The court concluded that the potential
infringement at issue did not occur in the United States because it was only
completed in Canada once the signal was received and viewed. Id.
Cases
1. MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993).
The Ninth Circuit held that loading copyrighted software into RAM met
the fixation requirement of the Copyright Act, rejecting the fair use
defense on somewhat unique facts. Because viewed operating
system's error log while diagnosing a problem with the computer, the
court found that the representation in RAM was "sufficiently
permanent or stable to permit it to be perceived, reproduced, or
otherwise communicated for a period of more than transitory
duration." The MAI v. Peak decision has been heavily criticized. Prof.
Pamela Samuelson has noted that the same argument could work for a
book and a mirror: "because the book's image could be perceived
there for more than a transitory duration, i.e., however long one has
the patience to hold the mirror." Pamela Samuelson, Legally Speaking:
The NII Intellectual Property Report, COMMUNICATIONS OF THE ACM,
at 21, (Dec. 1994).
2. Religious Tech. Ctr. v. Netcom On-Line Communications Servs., Inc.,
907 F. Supp. 1361 (N.D. Cal. 1995) held that an ISP serving as a
passive conduit for copyrighted material is not liable as a direct
infringer. The court held a direct infringement claim requires a
volitional act: "[a]lthough copyright is a strict liability statute, there
should still be some element of volition or causation which is lacking
where a defendants system is merely used to use a copy by a third

party." 907 F. Supp. at 1370; see also CoStar Group, Inc. v. LoopNet,
Inc., 373 F.3d 544, 555 (4th Cir. 2004) (Agreeing with the analysis
in Netcom, we hold that the automatic copying, storage, and
transmission of copyrighted materials, when instigated by others, does
not render an ISP strictly liable for copyright infringement under 501
and 106 of the Copyright Act.).
3. Ticketmaster v. Tickets.com, 54 U.S.P.Q.2d 1344 (C.D. Cal. 2000).
Ticketmaster sued its rival online ticket vendor, Tickets.com, for
allegedly deep linking to copyrighted information from the
Ticketmaster site in violation of Ticketmasters rights. The court denied
Tickets.coms motion to dismiss as to the copyright infringement claim
because it found that the complaint satisfactorily alleged copying. The
offensive copying warranting denial of the motion to dismiss was the
copying of the Ticketmaster event pages to Tickets.coms own
computer for 10-15 seconds in order to facilitate the extraction of facts
that were published on Tickets.com. The court found that Tickets.com
only republished the uncopyrightable factual data in Ticketmasters
site on to Tickets.com. Further, it presented the information on
Tickets.com in its own format, not in the format used on the
Ticketmaster site. Therefore, the material that actually appeared to
the consumer on the Tickets.com Web site was not copyrightable. In
addition, the court found that Tickets.coms use of links in itself does
not violate the Copyright Act since no copying is involved, and since
the user is transported directly to the Ticketmaster Web page. Finally,
the court found ambiguity over whether it had jurisdiction over the
copyright claim. Ticketmaster had a copyright on its home page, but
the links on Tickets.com skipped the home page and went directly to
the event page for a particular event. The event pages change from
day to day. The court held that there was an issue over whether
Ticketmasters copyright registration even covered the information on
the event pages.
4. CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th. Cir. 2004). The
court held that the standard outlined in Religious Tech. Center v.
Netcom, which held that a person must engage in a volitional act of

copying in order to be directly liable for infringement, was the correct

standard for direct infringement even if the OSP did not qualify for the
DMCA safe harbor. Accordingly, since LoopNet, as an Internet service
provider, was simply the owner and manager of a system used by
others who were violating CoStars copyrights, and was not an actual
duplicator itself, the Court found it was not directly liable for copyright
infringement. Because Loopnet was passively storing material at the
direction of users in order to make that material available to other
users on request, the court determined it was not engaging in
conduct. The fact that LoopNet knew there were infringement
problems and attempted to control them (engaging in a brief review of
uploaded photos), did not lead to direct infringement under Netcom's
volition requirement. In addition, the court held that an OSP did not
make copies "in the sense that it fixes a copy in its system of more
than a transitory duration. ... and the ISP therefore would not be a
'copier' to make it directly liable under the Copyright Act." This holding
appears to be an exception to the holding in MAI v. Peak, that a
temporary copy made in the course of routine computer operations
can be an an infringing copy under the Copyright Act.
5. Ellison v. Robertson, 189 F. Supp. 2d 1051 (C.D. Cal. 2002). On a
motion for summary judgment, the court disposed of a direct
infringement claim against AOL for copyrighted material posted on
Usenet because AOL was only a passive provider of Usenet access to
AOL users. Id. at 1056. See discussion in subsection C(4)(f)
below. Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004) "affirm[ed]
the district court's holdings as to vicarious and contributory
infringement, but [] reverse[d] the district court's application of the
[DMCA] safe harbor limitation from liability."
6. Pragmatic C Software Corp. v. Antrim Design Sys., Inc., 2003 U.S. Dist.
LEXIS 1824 (D. Minn. 2003). The district court issued a preliminary
injunction preventing a licensee from continuing to use licensors
software without paying royalties after the license agreement had
been terminated, even where the licensors purported termination was

ineffective. The court found plaintiff had a likelihood of success in its

copyright infringement action.
7. Arista Records LLC v. Usenet.com, Inc., 2009 WL 1873589 (S.D.N.Y.
June 30, 2009). The court granted plaintiffs motion for summary
judgment on all claims: (1) direct infringement of plaintiffs' exclusive
right of distribution under 17 U.S.C. 106(3); (2) inducement of
copyright infringement; (3) contributory copyright infringement; and
(4) vicarious copyright infringement. With respect to direct
infringement, the court found defendants engaged in volitional
conduct sufficient to show that they actively engaged in distribution of
copies of plaintiffs' copyrighted sound recordings. The court pointed
out that [d]efendants were well aware that digital music files were
among the most popular articles on their service, and took active
measures to create servers dedicated to mp3 files and to increase the
retention times of newsgroups containing digital music files. For
secondary liability (claims 2-4), see "Secondary Liability Cases" below.
Secondary Liability Theories
While [t]he Copyright Act does not expressly render anyone liable for
infringement committed by another, Sony Corp. v. Universal City Studios,
464 U.S. 417, 434 (1984), courts have developed several common law
doctrines of secondary liability: contributory infringement, vicarious
infringement and, most recently, inducement. Ellison v. Robertson, 357 F.3d
1072, 1076 (9th Cir.2004); MGM v. Grokster, 545 U.S. 913, 125 S.Ct. 2764
(2005).
Contributory
Elements: Assuming there is an act of direct infringement, contributory
infringement may be found when [o]ne who, with knowledge of the
infringing activity, induces, causes or materially contributes to the infringing
conduct of another. Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264
(9th Cir. 1996) (citing Gershwin Publishing Corp. v. Columbia Artists Mgmt.,
Inc., 443 F.2d 1159, 1162 (2d Cir. 1971)). See generally Newborn v. Yahoo!,
Inc., 391 F.Supp.2d 181 (D.D.C. 2005); Monotype Imaging, Inc. v. Bitstream,
Inc., 376 F.Supp.2d 877, 883 (N.D.Ill. 2005).
1. The knowledge requirement is objective and is satisfied where the
defendant knows or has reason to know of the infringing activity. See,
e.g., Sega Enters. Ltd. v. MAPHIA, 948 F. Supp. 923, 933 (N.D. Cal.

1996); Casella v. Morris, 820 F.2d 362, 365 (11th Cir. 1987). However,
if a defendant can show that its product was capable of substantial or
commercially significant noninfringing uses, then constructive
knowledge of the infringement should not be imputed. Sony Corp. of
America v. Universal City Studios, Inc., 464 U.S. 417 (1984).
2. With respect to the materiality requirement, the Ninth Circuit has held
that providing the site and facilities for known infringing activity is
sufficient. Fonovisa, 76 F.3d at 264 (adopting the analysis of Columbia
Pictures Indus., Inc. v. Aveco, Inc., 800 F.2d 59 (3rd Cir. 1986)); see
also 3 Nimmer 12.04[A][2][b]. However, some courts have required
the participation to be substantial, finding the mere fact that
equipment or facilities may be used for copyright infringement is not
determinative. Apple Computer, Inc. v. Microsoft Corp., 821 F. Supp.
616, 625 (N.D. Cal. 1993), affd, 35 F.3d 1435 (9th Cir. 1994); see also
Sega Enters. Ltd. v. MAPHIA, 948 F. Supp. at 933; Religious Tech. Ctr. v.
Netcom On-line Communications Servs., Inc., 907 F. Supp. 1361 (N.D.
Cal. 1995); Perfect 10 v. Visa Int'l Service Ass'n, 2004 WL 1773349, at
*4 (N.D.Cal. Aug.5, 2004) (must show a relationship between the
services provided by the [d]efendant[ ] and the alleged infringing
activity as opposed to the mere operation of the website
businesses.).
Vicarious
Elements. A defendant is vicariously liable for the actions of a primary
infringer where the defendant (1) has the right and ability to control the
infringers conduct, and (2) receives a direct financial benefit from the
infringement. Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 262 (9th Cir.
1996) (finding liability for swap meet organizer who had right and ability to
control vendor sales, received attendance fees, and had increased
attendance due to presence of infringing vendors); Shapiro, Bernstein & Co.
v. H.L. Green Co., 316 F.2d 304, 306 (2d Cir. 1963). Knowledge of the
infringing conduct is not a requirement. 3 Nimmer 12.04[A][1].
Vicarious copyright liability is an outgrowth of respondeat superior,
imposing liability on those with a sufficiently supervisory relationship to the
direct infringer. A&M Records v. Napster, 239 F.3d 1004, 1022 (9th Cir. 2001)
(citing Cherry Auction, 76 F.3d at 262). Allocation of liability in vicarious
copyright liability cases has developed from a historical distinction between
the paradigmatic dance hall operator and landlord defendants. Cherry
Auction, 76 F.3d at 262. The dance hall operator is liable, while the landlord

escapes liability, because the dance hall operator has the right and ability to
supervise infringing conduct while the landlord does not. Id.
Inducement
In MGM v. Grokster, 545 U.S. 913, 125 S.Ct. 2764 (2005), the Supreme Court
adopted an inducement rule for copyright:
For the same reasons that Sony took the staple-article doctrine of patent law
as a model for its copyright safe-harbor rule, the inducement rule, too, is a
sensible one for copyright. We adopt it here, holding that one who distributes
a device with the object of promoting its use to infringe copyright, as shown
by clear expression or other affirmative steps taken to foster infringement, is
liable for the resulting acts of infringement by third parties.
Secondary Liability Cases
1. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S.
417(1984). Defendants sued manufacturer of video tape recorders for
contributory infringement. The Court acknowledged that many
potential and actual uses of the players resulted in copyright
infringement. Since many copyright holders would likely not object to
viewers taping programs to allow later viewing, and that such "time
shifting" is fair use, that there existed "substantial non-infringing uses.
2. A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). The
court held that Napster's peer to peer file sharing network had violated
the exclusive rights of distribution and reproduction. Whenever a user
uploaded a file the distribution right was violated while the subsequent
downloads violated the reproduction right. The court held that
contributory infringement requires knowledge and a material
contribution in order to impose liability for contributory infringement.
The court also found Napster vicariously liable because it derived a
financial benefit from the infringing activities and had the "right and
ability" to prevent infringement.
3. In re Aimster Copyright Litig., 334 F.3d 643 (7th Cir. 2003). The court
found another peer to peer file sharing network secondarily liable. Just
because a product may be capable of noninfringing uses, that in itself
does not satisfy the Sony standard that the product be capable of
"substantial noninfringing uses." The court found the fact that Aimster
provided a tutorial that showed how to transfer files of copyrighted

music, that this was the factor that differentiated it from Sony. The
Seventh Circuit also rejected the 9th Circuit standard in A&M Records,
Inc. V. Napster, Inc. that actual knowledge be required for contributory
infringement.
4. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913
(2005). The Court rejected Grokster's defense that its file sharing
network was capable of substantial non-infringing uses. Since the
company encouraged and facilitated these downloads, and made no
substantial effort to filter infringing files, they were liable for
contributory infringement. The Court found that Grokster's proffered
non-infringing use, download of works in the public domain, was
unpersuasive since such downloads were not the principal aim of the
company.
5. Perfect 10 v. Visa International, 494 F.3d 788 (9th Cir. 2007). The
majority found that credit card companies were not liable for
secondary copyright and trademark infringement (contributory,
vicarious, and inducement) as a result of payment transactions for
infringing material on a website. The role of the companies was too
attenuated from the infringing activity to be considered a "material
contribution."
6. Arista Records LLC v. Lime Group LLC, ___ F. Supp. 2d ___, 2011 WL
1742029 (S.D.N.Y. May 2, 2011). The court granted summary judgment
on plaintiffs claim of inducement of copyright infringement against
defendant distributor of LimeWire, a peer-to-peer file-sharing program.
The court found that five factors, taken together, established
defendants intent to encourage infringement by distributing
LimeWire: (1) awareness of substantial infringement by users; (2)
efforts to attract infringing users; (3) efforts to enable and assist users
to commit infringement; (4) dependence on infringing use for business
success; and (5) failure to mitigate infringing activities.
Framing
Framing occurs when one Web site incorporates another sites web pages
into a browser window with the first sites own content. The webite with the

frame may post navigation tools, text, trademarks and/or advertising that
the framed website is unable to control. As more of the second site is
incorporated into the first, the possibility that users may become confused
over affiliation, endorsement or sponsorship becomes stronger. On the other
hand, it may be that the marketplace understands frames for what they
typically aresimply a way to feature another site which conveys no
implication of affiliation or endorsement. The unauthorized use of framing
has been challenged under a variety of legal theories, including copyright
and trademark infringement, unfair or deceptive trade practices, false
designation of origin (passing off), false light and false advertising.
1. The Washington Post Co. v. Total News, Inc. et al., No. 97 Civ. 1190
(S.D.N.Y. Feb. 20, 1997). Various news organizations sued Total News
for linking to plaintiffs websites and framing their content within the
Total News home page. Plaintiffs alleged claims for misappropriation,
federal trademark dilution, trademark infringement, false designation
of origin, copyright infringement, and various state claims. The case
settled in early June 1997 based on defendants agreement to stop
framing content from plaintiffs sites. See also Order, Washington Post
v. Gator Corp., No. 02-909-A (E.D. Va. 2002) (granting temporary
injunction preventing Gator from delivering pop-up ads to plaintiffs
websites that allegedly altered the intended appearance of the
websites, interfered with the Web site operators ability to sell their
own ads, decreased the value of these ads on the sites and misled
users. The suit was settled with the outcome sealed by the court).
See http://news.com.com/2100-1023-983870.html.
2. Futuredontics Inc. v. Applied Anagramic Inc., 45 U.S.P.Q. 2d 2005 (C.D.
Cal. 1998). Plaintiff alleged that defendants website, which framed
content from plaintiffs website, constituted copyright infringement.
Defendants motion to dismiss was denied, where the court was
unpersuaded by either partys reliance on prior case law. Plaintiff relied
on Mirage Editions Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341 (9th
Cir. 1988) for the position that the framing constituted the infringing
creation of a derivative work. Defendant relied on Lewis Galoob Toys
Inc. v. Nintendo of Am. Inc., 964 F.2d 965 (9th Cir. 1992) for the
position that no derivative work is created by framing, since no portion

of the copyrighted work is incorporated in a concrete or permanent

form. The court held that neither decision controlled.
Linking
There is substantial debate, and a number of disputes brewing, about
whether linking to sites that allegedly engage in copyright infringing
activities results in contributory or vicarious liability for the linking site. While
the Digital Millennium Copyright Act (DMCA) provides some protection
for information location tools that link to infringing content, the law
remains unsettled.
1. Ticketmaster Corp. v. Microsoft Corp., No. 97-3055 DDP (C.D. Cal. Apr.
29, 1997). Microsoft operated a site called Sidewalk Seattle, which
provided information about upcoming entertainment in the Seattle
area. Among other things, it linked to the order form page at
Ticketmasters site in order to allow its users to easily order tickets to
events described on the Seattle Sidewalk site. Ticketmaster argued
that such deep linking unfairly avoided advertising and marketing on
its site. Ticketmaster sued Microsoft alleging trademark dilution, false
representation of affiliation under the Lanham Act, and false
advertising and unfair competition under California law. Microsoft then
filed a counterclaim seeking a declaration that linking is per se legal.
The case was settled in February 1999. Microsoft agreed not to deep
link from its Sidewalk city guides to pages within the Ticketmaster site
and instead to point visitors to Ticketmasters home page.
2. Shetland Times Ltd. v. Wills, et al., 1997 F.S.R. 604 (Ct. Sess. O.H.)
(Ireland Oct. 24, 1996). The Shetland Times newspaper sought an
injunction to prevent the Shetland News, a rival news website, from
linking to Shetland Times websites, copying the text of the Times
headlines and linking to the Times articles in such a way that readers
might mistake them for the work of the News. The Times maintained
that the News use of the Times site constituted copyright
infringement and unfair competition. The court stated in an
interlocutory decision that headlines could constitute literary works
justifying copyright protection. The News maintained that creating
links without permission is the essence of how the Web operates, and

an injunction would block free access to the Internet. The case

settled in November 1997. The Shetland News was granted permission
to link to the Times headlines, so long as the links were labeled A
Shetland Times Story and included a button linking to the Times.
3. Bernstein v. JC Penney, Inc., No. 98-2958, 1998 WL 906644, at *1
(C.D.Cal. Sept. 29, 1998) (unpublished) (granting, without discussion,
defendant's motion to dismiss on the ground that hyperlinking cannot
constitute direct infringement)
4. Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, 75 F. Supp. 2d
1290 (D. Utah 1999). Holders of a copyright in the Church Handbook of
Instruction sued defendant for contributory infringement for linking to
infringing copies of the work (after defendant was enjoined from itself
posting the infringing copies). On unusual facts, the court found that
defendants could be held liable for contributory infringement since
they actively directed users to the infringing sites. Due to the unusual
facts, this case has not been widely followed.
5. Ticketmaster v. Tickets.com, 54 U.S.P.Q.2d 1344 (C.D. Cal. 2000)
("[H]yperlinking does not itself involve a [direct] violation of the
Copyright Act (whatever it may do for other claims) since no copying is
involved.")
6. Arista Records, Inc. v. MP3Board, Inc., No. 00 CIV. 4660, 2002 WL
1997918, at *4 (S.D.N.Y. Aug. 29, 2002) (unreported) (linking to
content does not implicate distribution right and thus, does not give
rise to liability for direct copyright infringement)
7. Batesville Services, Inc. v. Funeral Depot, Inc., 2004 WL 2750253
(S.D.Ind. 2004) (unpublished) ("facts are unusual enough to take this
case out of the general principle that linking does not amount to
copying. These facts indicate a sufficient involvement by Funeral
Depot that could allow a reasonable jury to hold Funeral Depot liable
for copyright infringement or contributory infringement, if
infringement it is. The possibility of copyright infringement liability on
these unusual facts showing such extensive involvement in the

allegedly infringing display should not pose any broad threat to the
use of hyperlinks on the internet.")
8. Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195, 1202 n.12
(N.D. Cal. 2004) ("Hyperlinking per se does not constitute direct
copyright infringement because there is no copying.")
9. Comcast of Illinois X, LLC. v. Hightech Electronics, Inc., 2004 WL
1718522 (N.D.Ill. 2004) (unpublished) (allegations of paid "hyper-links
to websites that sold illegal pirating devices" sufficient to state a claim
under 17 U.S.C. 1203(a).)
10.
Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (C.D.Cal. 2006)
("use of frames and in-line links does not constitute a "display" of the
full-size images stored on and served by infringing third-party
websites.").
The Fair Use Defense
(For main article, see Copyright: Fair Use)
The fair use doctrine creates a limited privilege in those other than the
owner of a copyright to use the copyrighted material in a reasonable manner
without the owners consent, Fisher v. Dees, 794 F.2d 432, 435 (9th Cir.
1986), and permits courts to avoid rigid application of the copyright statute
when, on occasion, it would stifle the very creativity which that law is
designed to foster. Dr. Suess Enters., L.P. v. Penguin Books USA, Inc., 109
F.3d 1394, 1399 (9th Cir. 1997), cert. dismissed, 521 U.S. 1146 (1997).
"It has long been recognized that certain unauthorized but 'fair' uses of
copyrighted material do not constitute copyright infringement." Association
of American Medical Colleges v. Cuomo, 928 F.2d 519, 523 (2d Cir. 1991). A
"fair use is not infringement of a copyright" Online Policy Group v. Diebold,
Inc., 337 F.Supp.2d 1195, 1200 (N.D.Cal. 2004) (citingCampbell v. Acuff-Rose
Music, Inc., 510 U.S. 569 (1994); Harper & Row Publishers, Inc. v. Nation
Enters., 471 U.S. 539 (1985)); Penelope v. Brown, 792 F. Supp. 132, 136
(D.Mass. 1992).
To determine whether a work constitutes fair use, courts engage in a caseby-case analysis and a flexible balancing of relevant factors. Campbell v.
Acuff-Rose Music, Inc., 510 U.S. 569, 577-78 (1994). The Supreme Court
recognized that science and art generally rely on works that came before
them and rarely spring forth in a vacuum, and instructs courts to use the

doctrine to limit the rights of a copyright owner regarding works that build
upon, reinterpret, and reconceive existing works. See id. at 575-577.