Page:Sony Computer Entertainment America, Inc. v. Bleem, LLC.pdf/7

 The second factor under § 107 is the nature of the copyrighted work. This factor is of most relevance to the fair use analysis when the original material and the copy are of a different nature. For instance, “if the copyrighted work is out of print and cannot be purchased, a user may be more likely to prevail on a fair use defense.” Triangle Publications, 626 F.2d at 1176 n. 14. On the other hand, if the copyrighted material is unpublished and creative while the copy is a commercial publication, courts would be less receptive to the defense of fair use. See Micro Star v. Formgen Inc., 154 F.3d 1107, 1113 (9th Cir.1998) (noting distinctions with respect to publication and creativity); Wright v. Warner Books, Inc., 953 F.2d 731, 737 (2d Cir.1991). In this case, the copyrighted work and the copies are both commercial video game products; although the copyrighted work is creative in nature generally, a screen shot is not necessarily. A screen shot is merely an inanimate sliver of the game.

The Supreme Court has passed over this factor without giving it much attention, stating that it is often “not much help.” Campbell, 510 U.S. at 586, 114 S.Ct. 1164. In this Court, too, we have spent very little energy parsing it in video game cases such as Micro Star, 154 F.3d at 1111–12; in Connectix, the panel explored the factor and found against Sony since Connectix could not create its emulator without necessarily making some copies of the Sony material. 203 F.3d at 604–05. Just as the Fifth Circuit concluded in Triangle Publications, in this appeal this factor “neither supports nor hurts [defendant’s] claim that a fair use defense is appropriate here.” 626 F.2d at 1176.

Clearly, the greater the degree of copying involved and the closer those copies are to the essence of the copyrighted work, the less likely the copying is a fair use. To evaluate this factor with respect to screen shots, some more technical detail may be helpful. Video games, much like motion pictures, create the illusion of movement by displaying in rapid succession a series of still pictures with incremental differences. Film is projected at 24 frames per second; video is projected at 30 frames per second. A screen shot is therefore 1/30th of a second’s worth of the video game. Temporally, therefore, there can be no doubt that a screen shot is a small amount of a video game. Inasmuch as these games involve plots that can be controlled interactively by the player and may elapse over several hours, it also seems true that a screen shot is of little substance to the overall copyrighted work. See Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 565, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985).

Sony contends that we have previously concluded, in Micro Star, that video game screen shots are worthy of protection. Micro Star makes no such proclamation. In Micro Star, a company manufactured a game in which players proceed through successive levels, gaining promotion to each new level as they succeed. 154 F.3d at 1107. Players can also create their own levels, and many did, posting them on a web site for the benefit of other players. A second company downloaded 300 of those saved levels and sold them on a separate disk. See id. We held that these disks, packaged in boxes that happened to contain screen shots, constituted a copyright infringement since they were derivative works of the original game. See id. at 1114. Although we stated somewhat broadly that “we affirm the grant of the preliminary injunction barring Micro Star from selling [the disks] in boxes covered with screen shots of the game,” we never discussed the issue of screen shots in our opinion. Id. This appeal is the first in this circuit squarely to raise the issue of the protectability of screen shots. In this analysis, the third factor will almost always weigh against the video game manufacturer since a screen shot is such an insignificant portion of the complex copyrighted work as a whole. Here, too, it