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Case 2:06-cv-02435-JAM-DAD Document 46 Filed 05/15/08 Page 1 of 18
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF CALIFORNIA
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`No. 2:06-CV-2435 JAM DAD
`
`Order Granting Playboy
`Enterprises International
`Inc.’s Motion for Summary
`Judgment
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`CARLA CALKINS, an individual
` Plaintiff,
`
`v.
`PLAYBOY ENTERPRISES
`INTERNATIONAL, INC., a
`corporation doing business as
`Playboy Magazine; and COLLEEN
`SHANNON, an individual,
` Defendants.
` /
`
`Plaintiff Carla Calkins (“Calkins”) brought this action for
`copyright infringement against defendant Playboy Enterprises
`International, Inc., a corporation dba Playboy Magazine (“PEI”),
`and Colleen Shannon (“Shannon”) under the Copyright Act, 17
`U.S.C. § 106. PEI now moves for summary judgment. Calkins
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`Case 2:06-cv-02435-JAM-DAD Document 46 Filed 05/15/08 Page 2 of 18
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`opposes the motion. For the reasons stated below, the Court
`GRANTS the motion.1
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`I. UNDISPUTED FACTS
`The Court finds the following facts to be undisputed.
`Calkins and her husband Robert Calkins (“Mr. Calkins”) are the
`owners of a photography studio known as Mother Lode Photography
`(“Mother Lode”). Def.’s Undisputed Material Fact (“UMF”) ¶ 1.
`Mother Lode specializes in individual portraits, family
`portraits, weddings and high school senior portraits. Id. ¶ 2.
`In 1996, Mr. Calkins, on behalf of Mother Lode, photographed
`Shannon while she was a high school senior. Id. ¶ 5. Following
`this photo session, Shannon ordered the “deluxe session” package
`from Mother Lode, which included indoor and outdoor portraits.
`Id. ¶ 5. Neither Shannon nor anyone else has ordered reprints
`of Shannon’s senior portraits since they were created in 1996.
`Id. ¶¶ 10, 44.
`In December 2003, a reproduction of one of Shannon’s senior
`portraits (“Photograph”) appeared in the January 2004 50th
`Anniversary edition of Playboy Magazine (“Playboy”), Def.’s UMF
`¶¶ 11, 13, without Calkins’ permission. Pl.’s UMF ¶ 1. The
`image, approximately 1¾ by 2¼ inches, is a reproduction of a
`waist-up shot of Shannon lying in a public field. Def.’s UMF ¶¶
`
`
`1 This motion was determined to be suitable for decision
`without oral argument. E.D. Cal. L.R. 78-230(h).
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`Case 2:06-cv-02435-JAM-DAD Document 46 Filed 05/15/08 Page 3 of 18
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`5, 8-9, 22-23, 29. The image appeared on the biography page
`(a.k.a. Playmate data sheet) of Playboy’s centerfold feature,
`which also contained three other photographs of Shannon as well
`as a handwritten biography prepared by Shannon. Id. ¶¶ 15-16,
`20-21. The Photograph was not substantially altered before it
`was reproduced by PEI, except that it was reduced in size and
`“cropped” a little (i.e., the edges of the Photograph were
`eliminated or trimmed). Pl.’s UMF ¶¶ 6, 9, 23. According to
`Gary Cole (“Cole”), PEI’s photography director, the purpose of
`the Playmate data sheet is to personalize each Playmate by
`providing insight into their life, including how they grew up
`and what their interests are. Def.’s UMF ¶¶ 17-19.2 Mr. Cole
`testified that he believed the Photograph was a personal
`photograph belonging to Shannon because it did not appear to
`have been created by a professional photographer. Id. ¶¶ 28-31.
`Calkins testified that while it is Mother Lode’s practice to
`affix a copyright sticker to each of its photographs, she
`acknowledges that this practice was not always followed. Id. ¶¶
`32-33. Calkins, for instance, does not allege that a copyright
`
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`
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`2 To the extent that Calkins contends that Mr. Cole’s
`deposition testimony is inadmissible hearsay, the court rejects
`this contention. While deposition testimony is ordinarily
`hearsay when submitted at trial, it is not hearsay in a summary
`judgment motion. See Surrell v. California Water Service Co.,
`518 F.3d 1097, 1107 (9th Cir. 2008); Orr v. Bank of America, NT
`& SA, 285 F.3d 764, 779 n. 27 (9th Cir. 2002).
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`Case 2:06-cv-02435-JAM-DAD Document 46 Filed 05/15/08 Page 4 of 18
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`sticker was affixed to the photograph at issue in this case.
`Id. ¶ 34.
`
`In February 2004, the Photograph was registered with the
`Copyright Office under Mr. Calkins’ name, and a Certificate of
`Registration was issued on February 5, 2004. Def.’s UMF ¶ 63.
`Calkins concedes that the copyright registration erroneously
`listed the date in which the Photograph was developed, May 15,
`1996, as the date of publication, and that she has made no
`effort to correct this error. Id. ¶¶ 65-66. On July 20, 2005,
`Mr. Calkins allegedly transferred the copyright to the
`Photograph and all the rights related to ownership of the
`copyright, past, present, and future, to Calkins. Id. ¶ 67. On
`November 2, 2006, Calkins filed an action for copyright
`infringement against PEI and Shannon. Docket at 1. On March 5,
`2008, PEI filed its motion for summary judgment. Docket at 23.
`II. OPINION
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`A. Legal Standard
`Rule 56(b) permits a party against whom a claim has been
`
`asserted to “move at any time, with or without supporting
`affidavits, for summary judgment on all or part of the claim.”
`Fed.R.Civ.P. 56(b). Summary judgment is appropriate if “the
`pleadings, depositions, answers to interrogatories, and
`admissions on file, together with the affidavits, if any, show
`that there is no genuine issue as to any material fact and that
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`the moving party is entitled to a judgment as a matter of law.”
`Fed.R.Civ.P. 56(c). The moving party bears the initial burden of
`demonstrating the absence of a genuine issue of material fact.
`See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
`moving party sustains its burden, the burden then shifts to the
`nonmoving party to go beyond the pleadings and by his or her own
`affidavits, or by the depositions, answers to interrogatories,
`and admissions on file, designate specific facts showing that
`there is a genuine issue for trial. See id. at 324 (citing
`Fed.R.Civ.P. 56(e)). “If the nonmoving party fails to produce
`enough evidence to create a genuine issue of material fact, the
`moving party wins the motion for summary judgment.” Nissan Fire
`& Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1103
`(9th Cir. 2000). “But if the nonmoving party produces enough
`evidence to create a genuine issue of material fact, the
`nonmoving party defeats the motion.” Id. Summary judgment is
`appropriate if, viewing the evidence and the inferences
`therefrom in the light most favorable to the non-moving party,
`there are no genuine issues of material fact in dispute and the
`moving party is entitled to judgment as a matter of law.
`Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989).
`B. Copyright Infringement
`
`PEI argues that summary judgment is appropriate with
`respect to Calkins’ copyright infringement claim because PEI’s
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`Case 2:06-cv-02435-JAM-DAD Document 46 Filed 05/15/08 Page 6 of 18
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`use of the Photograph is a “fair use” as set forth in 17 U.S.C.
`§ 107.
`“The Copyright Act, 17 U.S.C. § 106, protects the owner of
`a copyright by granting him or her exclusive rights to
`reproduce, distribute, and publicly display copies of the work.”
`Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792, 799
`(9th Cir. 2003) (internal quotation marks omitted). “A prima
`facie case of copyright infringement by reproduction is
`established by showing ownership by the plaintiff and copying by
`the defendant.” Id. A copyright owner’s exclusive rights,
`however, are subject to statutory exceptions, including the
`exception for “fair use.” Hustler Magazine Inc. v. Moral
`Majority Inc., 796 F.2d 1148, 1151 (9th Cir. 1986) (citing 17
`U.S.C. §§ 106, 107); see also Perfect 10, Inc. v. Amazon.com,
`Inc., 487 F.3d 701, 715 (9th Cir. 2007) (even if a plaintiff
`makes a prima facie case of direct infringement, the defendant
`may avoid liability if it can establish that its use is a “fair
`use” as set forth in § 107).3 “The fair use doctrine confers a
`privilege on people other than the copyright owner ‘to use the
`copyrighted material in a reasonable manner without his consent,
`notwithstanding the monopoly granted to the owner.’ ” Id. In
`
`3 Section 107 provides in pertinent part: “Notwithstanding
`the provisions of section 106, the fair use of a copyrighted
`work . . . is not an infringement of copyright.” 17 U.S.C. §
`107.
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`determining whether a use is fair, courts engage in a case-by-
`case analysis and a flexible balancing of the following four
`non-exclusive factors: (1) the purpose and character of the use,
`including whether such use is of a commercial nature or is for
`nonprofit educational purposes; (2) the nature of the
`copyrighted work; (3) the amount and substantiality of the
`portion used in relation to the copyrighted work as a whole; and
`(4) the effect of the use upon the potential market for or value
`of the copyrighted work. Mattel, 353 F.3d at 800 (citing 17
`U.S.C. § 107); Hustler, 796 F.2d at 1151-52. Because fair use
`is an affirmative defense, PEI carries the burden of
`demonstrating it. Campbell v. Acuff-Rose Music, Inc., 510 U.S.
`569, 590 (1994). Where material facts are not in dispute, fair
`use is appropriately decided on summary judgment. Mattel, 353
`F.3d at 800.
`In the present case, PEI does not argue that Calkins cannot
`establish a prima facie case of copyright infringement; rather,
`PEI argues that its use of the Photograph is a “fair use” under
`the factors set forth in § 107. Thus, the question before the
`court is whether PEI’s use of the Photograph is a “fair use.”
`1. Purpose and Character of the Use
`The first factor in a fair use inquiry requires the Court
`to consider “the purpose and character of the use, including
`whether such use is of a commercial nature or is for nonprofit
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`educational purposes.” 17 U.S.C. § 107(1). The “purpose and
`character of use” factor in the fair use inquiry asks whether
`the work’s purpose was for profit or not for profit and to what
`extent the new work is transformative and does not simply
`“supplant” the original work. Mattel, 353 F.3d at 800.
`Although not controlling, the fact that the work is used for a
`commercial or profit-making purpose as opposed to a non-profit
`purpose, weighs against a finding of fair use. Elvis Presley
`Enterprises, Inc. v. Passport Video, 349 F.3d 622, 627 (9th Cir.
`2003). And the degree to which the new user exploits the
`copyright for commercial gain-as opposed to incidental use as
`part of a commercial enterprise-affects the weight afforded to
`commercial nature as a factor. Id.; see also Hustler, 796 F.2d
`at 1152 (The critical issue is not whether the sole motive of
`the use is monetary gain but whether the user stands to profit
`from exploitation of the copyrighted material without paying the
`customary price.).
`The second, and more important, inquiry under this first
`factor is to determine whether and to what extent the new work
`is “transformative.” Perfect 10, 487 F.3d at 720 (citing
`Campbell, 510 U.S. at 579); see also Elvis Presley Enterprises,
`349 F.3d at 628 (the “transformative” nature of the new work is
`the most important inquiry under the first fair use factor). “A
`work is ‘transformative’ when the new work does not ‘merely
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`supersede the objects of the original creation’ but rather ‘adds
`something new, with a further purpose or different character,
`altering the first with new expression, meaning, or message.’ ”
`Perfect 10, 487 F.3d at 720 (citing Campbell, 510 U.S. at 579);
`Kelly v. Arriba Soft Corp., 336 F.3d 811, 818 (9th Cir. 2003).
`The more “transformative” the new work, the less the
`significance of other factors that weigh against fair use, such
`as use of a commercial nature. Campbell, 510 U.S. at 579; Elvis
`Presley Enterprises, 349 F.3d at 628.
`In the present case, the Court finds that the Photograph
`was used for a commercial purpose inasmuch as PEI is a for-
`profit enterprise and the Photograph appeared in Playboy.
`However, the Court further finds that the use of the Photograph
`was incidental and less exploitative in nature than more
`traditional types of commercial use insofar as PEI was neither
`using the Photograph to directly promote sales of Playboy, nor
`trying to profit by selling the Photograph. See Kelly, 336 F.3d
`at 818. It is undisputed that the Photograph was reproduced as
`part of the centerfold feature of Playboy and was not advertised
`on the cover, nor made evident to prospective purchasers of
`Playboy. Thus, it does not appear that the Photograph was
`reproduced by PEI for the purpose of making a profit without
`paying the customary price. There is no evidence before the
`Court indicating that PEI profited from the use of the
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`Case 2:06-cv-02435-JAM-DAD Document 46 Filed 05/15/08 Page 10 of 18
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`Photograph. Indeed, the Photograph was merely one of hundreds
`of photos appearing in the January 2004 50th Anniversary edition
`of Playboy. Therefore, while Playboy is published for profit
`and the use of the Photograph contributed to its entertainment
`value, the manner of commercial use in this case does not weigh
`strongly against a fair use determination. See id.
`Moreover, while the mere commercial use of copyrighted
`material generally weighs against a finding of fair use, it does
`not end the inquiry under this factor. Rather, the Court must
`consider whether and to what extent the new work is
`transformative. In this regard, the Court finds PEI’s use of
`the Photograph to be transformative because although PEI made a
`replica of the Photograph, the reproduced image was much smaller
`and served an entirely different function than the original
`image. Mother Lode originally created the Photograph for the
`limited purpose of being used as a gift by Shannon’s family and
`friends, Def.’s UMF ¶ 45, while PEI used the Photograph, in
`conjunction with other photographs of Shannon and a handwritten
`biography, for the purpose of personalizing Shannon by providing
`insight into her life, including how she grew up and what her
`interests are. Def.’s UMF ¶¶ 17-19. Thus, because PEI used the
`Photograph in a new context to serve a different function
`(inform and entertain Playboy readers) than the original
`function (gifts for family and friends), PEI’s use did not
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`supersede the function of the original Photograph, and therefore
`PEI’s use is transformative. See Kelly, 336 F.3d at 818-19; see
`also Nunez v. Caribbean Int’l News Corp., 235 F.3d 18, 22-23
`(1st Cir. 2000) (republication of photographs taken for a
`modeling portfolio in a newspaper was transformative because the
`photos served to inform, as well as entertain). Indeed, the
`reproduced image is not a suitable substitute for someone who
`wishes to use the Photograph as a gift because the image is
`significantly smaller and of lesser quality than the original
`Photograph. In other words, it is unlikely that Playboy readers
`would use the reproduced image for the original purpose for
`which it was created. Accordingly, because the transformative
`purpose of PEI’s use of the Photograph is considerably more
`important than the fact that PEI used the Photograph as part of
`a for-profit enterprise, the first fair use factor weighs
`heavily in favor of a fair use determination.
`2. Nature of the Copyrighted Work
`The second factor in a fair use inquiry requires the Court
`to consider the “nature of the copyrighted work.” 17 U.S.C. §
`107(2). Works that are creative in nature, such as photographs
`that are meant to be viewed by the public for informative and
`aesthetic purposes, are closer to the core of intended copyright
`protection than are more fact-based works. Kelly, 336 F.3d at
`820. The fact that a work is published or unpublished is also a
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`critical element of its nature insofar as unpublished works are
`less likely to qualify as fair use because the author’s right to
`control the first public appearance of his work weighs against
`the use of his work before its release. Id. “The right of
`first publication encompasses not only the choice whether to
`publish at all, but also the choices when, where, and in what
`form first to publish a work.” Harper & Row, 471 U.S. at 564.
`When dealing with transformative uses, this factor is not
`terribly significant in the overall fair use balancing. See
`Mattel, 353 F.3d at 803. In this case, it is undisputed that
`the Photograph was professionally created and that Calkins’
`neither intended nor intends to publish the Photograph. It is
`further undisputed that the Photograph was not publicly released
`prior to its appearance in Playboy and that Calkins did not
`register the Photograph with the Copyright office until after it
`was published by PEI. Thus, because Calkins’ copyrighted
`Photograph can fairly be said to be a creative work, see Kelly,
`336 F.3d at 820 (finding photographs created by professional
`photographer to be creative in nature); see also Nunez, 235 F.3d
`at 23 (finding that modeling photographs could be categorized as
`either factual or creative even though the photographer posed a
`model, chose her clothing, makeup and hairstyle, arranged
`lighting and backdrop, and gave her instructions on facial
`expression, because the photographs were not artistic
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`representations designed primarily to express the photographer’s
`ideas, emotions, or feelings, but instead a publicity attempt to
`highlight the model’s abilities as a potential model), and
`because PEI’s publication of the Photograph supplanted Calkins’
`right to control the first public appearance of the work, this
`factor weighs against a fair use determination, but only
`slightly.
`3. Amount and Substantiality of the Portion Used
`The third factor in a fair use inquiry requires the Court
`to examine the “amount and substantiality of the portion used in
`relation to the copyrighted work as a whole.” 17 U.S.C. §
`107(3). While wholesale copying militates against a finding of
`fair use, the extent of permissible copying varies with the
`purpose and character of the use. Kelly, 336 F.3d at 820. For
`instance, if the secondary user only copies as much as is
`necessary for his or her intended use, such as replicating an
`entire photograph, then this factor will not weigh against him
`or her. See id. at 820-21 (finding that this factor did not
`weigh either for or against either party where the defendant
`(operator of visual search engine) copied each of plaintiff’s
`images as a whole because it was necessary to do so in order to
`maintain the usefulness of the visual search engine by allowing
`users to recognize the image and decide whether to pursue more
`information about the image or the originating web site). In
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`this case, the Court finds that this factor does not weigh
`either for or against a finding of fair use because although PEI
`copied the entire Photograph, it was reasonable to do so in
`light of PEI’s purpose for using the Photograph. The extent of
`the copying was consistent with and to further the “purpose and
`character of the use,” that is, it was necessary for PEI to copy
`the entire Photograph in order to personalize Shannon by showing
`Playboy readers how Shannon looked as a high school senior. To
`use a lesser portion of the Photograph would have defeated PEI’s
`purpose for using it.
`4. Effect of the Use Upon the Potential Market for or Value
`of the Copyrighted Work
`The fourth factor in a fair use inquiry focuses on “the
`effect of the use upon the potential market for or value of the
`copyrighted work.” 17 U.S.C. § 107(4). This factor is
`undoubtedly the single most important element of fair use.
`Harper & Row, 471 U.S. at 566; Elvis Presley Enterprises, 349
`F.3d at 630. This factor requires courts to consider not only
`the extent of market harm caused by the particular actions of
`the alleged infringer, but also 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. Kelly, 336 F.3d at 821 (citing Campbell, 510
`U.S. at 590); Elvis Presley Enterprises, 349 F.3d at 631. The
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`more transformative the new work, the less likely the new work’s
`use of copyrighted materials will affect the market for the
`materials. Elvis Presley Enterprises, 349 F.3d at 631. In
`determining whether the use has harmed the work’s value or
`market, courts have focused on whether the infringing use: (1)
`tends to diminish or prejudice the potential sale of the work,
`or (2) tends to interfere with the marketability of the work, or
`(3) fulfills the demand for the original work. Hustler, 796
`F.2d at 1155-56. If a use has no demonstrable effect upon the
`potential market for, or the value of, the copyrighted work,
`then such use need not be prohibited in order to protect the
`author’s incentive to create. Sony Corp. v. Universal City
`Studios, Inc., 464 U.S. 417, 450 (1984).
`In the present case, Calkins contends that PEI’s
`reproduction of the Photograph caused Mother Lode to lose
`revenue in the form of lost sales of the Photograph. However,
`it is undisputed that Mother Lode is not in the business of
`reselling its clients’ photographs to third parties.
`Furthermore, Calkins concedes that she neither intended nor
`intends to publish the Photograph or otherwise exploit it in any
`way (e.g., sell or license the Photograph to a third party).
`Def.’s UMF ¶¶ 55-56, 59-62. Thus, the question of market harm
`turns on whether PEI’s use of the Photograph had a demonstrable
`effect on Calkins’ ability to sell reprints of the Photograph to
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`Case 2:06-cv-02435-JAM-DAD Document 46 Filed 05/15/08 Page 16 of 18
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`Shannon. In this regard, there is no evidence before the Court
`indicating that PEI’s use of the Photograph had any discernable
`impact on Shannon’s decision not to order reprints of the
`Photograph. In fact, it is undisputed that neither Shannon nor
`anyone else has ordered a reprint of the Photograph since it was
`created in 1996. Moreover, because PEI’s reproduction of the
`Photograph is not an adequate substitute for the original (i.e.,
`PEI’s reproduced image does not fulfill the demand for the
`original Photograph), PEI’s use of the Photograph does not usurp
`a market that properly belongs to Calkins. In short, there is
`no evidence before the Court demonstrating that PEI’s use of the
`Photograph interfered in any way with the marketability of the
`work. Accordingly, because Calkins failed to demonstrate a
`connection between PEI’s use of the Photograph and lost sales,
`the Court finds that PEI’s use did not cause actual market harm.
`A lack of actual market harm, however, does not end the inquiry
`under this factor. The Court must also consider whether
`unrestricted and widespread conduct of the sort engaged in by
`PEI would result in a substantially adverse impact on the
`potential market for the original or its derivatives. In this
`regard, the Court finds that Calkins failed to demonstrate how
`PEI’s use of the Photograph would adversely impact the potential
`market for the original Photograph if PEI’s conduct should
`become widespread. There is no evidence before the Court
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`Case 2:06-cv-02435-JAM-DAD Document 46 Filed 05/15/08 Page 17 of 18
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`demonstrating how comparable use of the Photograph would harm
`Calkins’ ability to sell reprints to Shannon. Indeed, if
`anything, widespread publication of the Photograph would have a
`positive effect on the potential market for the original
`Photograph by increasing demand for reprints. Accordingly,
`because PEI’s use of the Photograph had no demonstrable effect
`upon the potential market for, or the value of, the Photograph,
`this factor weighs strongly in favor of a fair use
`determination.
`In sum, after considering the four fair use factors, the
`Court concludes, on balance, that PEI’s use of the Photograph is
`a fair use.4
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`III. CONCLUSION
`For the reasons stated above, the Court GRANTS PEI’s
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`motion.
`IT IS SO ORDERED.
`Dated: May 14, 2008
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`4 Because the Court finds that PEI’s use of the Photograph
`is a fair use under § 107, the Court need not consider whether
`Calkins is entitled to statutory damages and attorney’s fees
`under 17 U.S.C. § 412. The Court also finds it unnecessary to
`decide PEI’s motion to strike Calkins’ untimely opposition to
`PEI’s motion for summary judgment. The Court would note,
`however, that Calkins filed her opposition two days late and
`provided no explanation to this Court for the late filing.
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`Case 2:06-cv-02435-JAM-DAD Document 46 Filed 05/15/08 Page 18 of 18
`Case 2:O6—cv—O2435—JAM—DAD Document 46 Filed 05/15/08 Page 18 of 18
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