“Fair use” describes “limited and useful forms of copying and distribution that are tolerated as exceptions to copyright protection.” Cable/Home Communications Corp., 902 F.2d at 843 (citing Pacific & Southern Co. v. Duncan, 744 F.2d 1490, 1494 (11th Cir.1984), cert. denied, 471 U.S.
1004, 105 S.Ct. 1867, 85 L.Ed.2d 161 (1985)).
The Copyright Act mandates four nonexclusive factors which courts shall consider case by case in determining fair use. Cable/Home Communications Corp., 902 F.2d at 843; see 17 U.S.C. S 107. Section 107 does not attempt to define "fair use." It merely lists the factors to be considered in determining whether a use made of a work in a particular case is fair. Section
[T]he fair use of a copyrighted work … for purposes such as criticism,comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include–
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
17 U.S.C. S 107.
With respect to the first factor, "every commercial use of copyrighted material
is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright …," Harper & Row, Publishers, Inc., 471 U.S. at 562, 105 S.Ct. at 2231 (quoting Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 451, 104 S.Ct. 774, 793, 78 L.Ed.2d 574 (1984)), so that “any commercial use tends to cut against a fair use defense.” Triangle
Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1175 (5th
Defendant Frena's use was clearly commercial. BBS was provided to those paying twenty-five dollars ($25) per month or to those who purchased products from Defendant Frena. One who distributes copyrighted material for profit is engaged in a commercial use even if the customers supplied with such material themselves use it for personal use. See Pacific & Southern Co. v. Duncan, 572 F.Supp. 1186 (N.D.Ga.1983), affirmed, 744 F.2d 1490 (11th
Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1867, 85 L.Ed.2d 161 (1985).
Implicit in the presumption that every commercial use is presumptively unfair
is “some meaningful likelihood that future market harm exists.” Cable/Home
Communications Corp., 902 F.2d at 844 (citing Sony, 464 U.S. at 451, 104 S.Ct.
at 793). It is clear that future market harm exists to PEI due to Frena’s activities, as will be discussed in more detail under factor four.
The second factor is the "nature of the copyrighted work." 17 U.S.C. S 107. "Copyright protection is narrower, and the corresponding application of fair use defense greater, in the case of factual works than in the case of works of fiction or fantasy." 3 MELVILLE B. NIMMER, Nimmer on Copyright S 13.05[A],at 13-102.57 (1993). If a work is more appropriately characterized as entertainment, it is less likely that a claim of fair use will be accepted. See In New Era Publications Intern., ApS v. Carol Publishing Group, 904 F.2d 152(2d Cir.), cert. denied, 498 U.S. 921, 111 S.Ct. 297, 112 L.Ed.2d 251 (1990).
The copyrighted works involved in this case are in the category of fantasy and
entertainment. Therefore, the second factor works against Frena’s fair use
defense. . . .
Regarding the third factor, the amount and substantiality of the portion of the copyrighted work used, the Supreme Court has directed a qualitative evaluation of the copying of the copyrighted work. Cable/Home Communications Corp., 902 F.2d at 844 (citing Harper & Row, 471 U.S. at 564- 65, 105 S.Ct. at 2232-33). That is, "a small degree of taking is sufficient to transgress fair use if the copying is the essential part of the copyrighted work." Id. See,
e.g., Meeropol v. Nizer, 560 F.2d 1061, 1071 (2d Cir.1977) (although copyrighted letters were less than 1% of the infringing work, they were displayed prominently), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978); Roy Export Co. Establishment of Vaduz, Liechtenstein, Black, Inc. v. Columbia Broadcasting Sys., Inc., 503 F.Supp. 1137, 1145 (S.D.N.Y.1980)
(fifty-five seconds taken from a one-hour and twenty- nine-minute film deemed
qualitatively substantial for copyright infringement), aff’d, 672 F.2d 1095
(2d Cir.), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982); Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir.) ("[N]o plagiarist can excuse the
wrong by showing how much of his work he did not pirate."), cert. denied, 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392 (1936). . . .
The fourth factor, the "effect of the use upon the potential market for or value of the copyrighted work," 17 U.S.C. S 107(4), is "undoubtedly the single most important element of fair use, since a proper application of fair use does not impair materially the marketability of the copied work." Cable/Home Communications Corp., 902 F.2d at 845. This factor poses the issue of "whether unrestricted and widespread conduct of the sort engaged in by the defendant (whether in fact engaged in by the defendant or others) would result in a
substantially adverse impact on the potential market for or value of the
plaintiff’s present work." 3 MELVILLE B. NIMMER, Nimmer on Copyright S 13.05[A], at 13.102.61-62 (1993). “[P]otential market means either an immediate or delayed market, and includes harm to derivative works.” Cable/Home Communications Corp., 902 F.2d at 845.
Obviously, if this type of conduct became widespread, it would adversely affect
the potential market for the copyrighted work. Such conduct would deny PEI considerable revenue to which it is entitled for the service it provides.
There is irrefutable evidence of direct copyright infringement in this case. It does not matter that Defendant Frena may have been unaware of the copyright infringement. Intent to infringe is not needed to find copyright infringement. Intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement; rather, innocence is significant to a trial court when it fixes statutory damages, which is a remedy equitable in nature. See D.C. Comics Inc. v. Mini Gift Shop, 912 F.2d 29 (2d Cir.1990).
Frena argues that his commercial use was so insignificant as to justify holding for him under the principle of de minimis non curat lex. The Court disagrees. The detrimental market effects coupled with the commercial-use presumption negates the fair use defense. Defendant Frena infringed Plaintiff's copyrights; specifically, the 170 image files in question in Exhibit C to the Tesnakis Affidavit infringed Plaintiff's copyrights in 50 of Plaintiff's copyrighted magazines. The Court finds that the undisputed facts mandate partial summary judgment that Defendant Frena's unauthorized display and distribution of PEI's copyrighted material is copyright infringement under 17 U.S.C. S 501