Page:Sony Computer Entertainment America, Inc. v. Bleem, LLC.pdf/9

 discretion in entering a preliminary injunction against Bleem for its use of screen shots in its advertising. See Anderson, 134 F.3d at 1402. Sony neither appears likely to prevail on the merits, nor has it shown how the balance of hardships tips in its favor to any degree. See GoTo.com, 202 F.3d at 1204. Therefore, we must vacate the preliminary injunction and remand to the district court for further proceedings.

We must qualify our holding with one caveat. Our conclusions with respect to Bleem’s use of screen shots apply only to those screen shots that Bleem has generated by taking the actual images of Sony’s games from a television screen. The entire premise of comparative advertising is that the consumer is being made aware of the true choices. To the extent Bleem merely approximates what the PlayStation games look like, by generating screen shots through a process of degrading a computer image, it is simply creating a simulation. If Bleem insists on generating simulated approximations of Sony’s games, there is no need for Bleem to use Sony’s copyrighted material whatsoever.

We conclude that it is a fair use for Bleem to advertise comparatively only between what PlayStation games actually look like on a television and what they actually look like on a computer when played with the emulator. It is in this context alone that the comparison is necessarily Sony-specific. Otherwise, Bleem must be content to make its comparison without using another’s copyrighted material. We are persuaded by the need for Bleem to impose minimally upon Sony’s copyright with respect to these screen shots because there is no other way to create a truly accurate comparison for the user. The way of simulations is a slippery one for Bleem and if it chooses to embark upon it, it must do so without the support of Sony’s copyright. With that limitation in mind, we conclude that Bleem’s use of Sony’s copyrighted material was fair.

Preliminary injunction VACATED; REMANDED with instructions to modify the preliminary injunction in accordance with this opinion.