01-3304 Ty Inc. v. Publications International Ltd.

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In deciding whether a particular use is fair, the ‘factors to be considered shall include’- and notice again that the listing is illustrative rather than exhaustive; Congress ‘intended that courts continue the common law tradition of fair use adjudication’ and [section 107] ‘permits and requires 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,’ id. at 577 -‘(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.’ Factors (1) and (2) are empty, except that (1) suggests a preference for noncommercial educational uses, picking up the reference earlier in the statute to ‘teaching . . .

scholarship or research.’ Factor (3) is inapplicable to Beanie Babies, each one of which is copyrighted separately, so that there can be no partial copying as a matter of fact (no one, we imagine, wants a photograph of part of a Beanie Baby). Factor (4) at least glances at the distinction we noted earlier between substitute and complementary copying, since the latter does not impair the potential market or value of the copyrighted work except insofar as it criticizes the work, which is the opposite of taking a free ride on its value.”

“Because the factors and purposes are not exhaustive, Ty can get nowhere in defending the judgment by arguing that some or even all of them lean against the defense of fair use. The question is whether it would be unreasonable to conclude, with reference to one or more of the enjoined publications, such as the Beanie Babies Collector’s Guide, that the use of the photos is a fair use because it is the only way to prepare a collectors’ guide.”

Reversed and remanded.

Appeal from the United States District Court for the Northern District of Illinois, Zagel, J., Posner, J.