Castle Rock Entertainment v. Carol Publishing Group, Inc.

OPINION AND ORDER

Plaintiff brings this action alleging copyright infringement and unfair competition flowing from defendants’ publication of The Seinfeld Aptitude Test (“SAT”), a book of trivia concerning Seinfeld, a popular televi *262 sion comedy program “about absolutely nothing.” (Golub Dep. Ex. 3, cover). Though this seemingly invites the conclusion that this opinion is not about anything, plaintiffs claims raise a variety of difficult and interesting questions concerning the proper scope of copyright protection as it extends to popular television programming. For the reasons to be discussed, I grant plaintiffs motion for summary judgment on the issue of copyright infringement, finding that defendants have appropriated original material from Seinfeld without making “fair use” of the program. I deny plaintiffs motion for summary judgment with respect to its claim of unfair competition, however, because there are material issues in dispute concerning this claim.

BACKGROUND

Plaintiff, Castle Rock Entertainment (“Castle Rock”), produced and now owns the copyrights to each episode of the highly successful television series Seinfeld, a comedy program featuring four characters confronting life’s “daily, petty annoyances.” (Shostak Dep. Ex. 3). 1 Defendants are the author, Beth Golub, and publisher, Carol Publishing Group, Inc. (“Carol”), of SAT, a book of trivia questions “based on the Seinfeld show.” (Golub Dep. at 95). According to a view shared by the book’s author, Beth Golub, and her editor at Carol Publishing, SAT represents a “natural outgrowth” of Seinfeld. (Golub Dep. Ex. 5 at 000606; Shostak Dep. Ex. 3). Indeed, “[SAT], like the Seinfeld show, is devoted to the trifling, picayune and' petty annoyances encountered by the show’s characters on a daily basis.” (Golub Dep. Ex. 5 at 00606). In other words, defendants designed SAT to “capture Seinfeld’s flavor in quiz book fashion.” (Golub Dep. Ex. 5 at 000606).

In a proposal she submitted to Carol Publishing, Golub explained that she gathered the information tested in SAT by “watching and reviewing” Seinfeld episodes. (Golub Dep. Ex. 5 at 000606). During her deposition, Golub provided a more detailed account of her methods: she took notes from programs at the time they were aired on television, and she subsequently reviewed videotapes of several of the episodes, some of which she recorded and others that friends provided. (Golub Dep. at 20-21). Plaintiff reasons that Ms. Golub’s proposal — with its “watching and reviewing” language — left Carol Publishing with constructive knowledge of Golub’s practice of videotaping. Carol Publishing’s representatives have denied, however, any actual knowledge that Golub reviewed Seinfeld episodes on tape. (Schragis Dep. at 91; Shostak Dep. at 62-64).

By defendant’s count, SAT includes 643 trivia questions about the events and characters depicted in the Seinfeld show. The questions are presented in three forms: 211 are multiple choice; 93 are matching; and the remainder are simple questions. The book draws from 84 of the 86 Seinfeld episodes that had been broadcast as of the time that SAT was published in October 1994. The number of questions devoted to each episode ranges from a low of one to a high of 20. Every answer in the book arises from an episode of the show, though defendant Golub created incorrect answers as choices to the multiple choice questions. (Golub Dep. at 36, 94-95). Actual dialogue from the program is quoted in 41 of the book’s questions. Though the parties cannot agree on the percentage of the show’s overall dialogue excerpted in SAT, they offer figures — based upon the script most often referenced in the book, “The Cigar Store Indian” — ranging from a low of approximately 3.6 % (defendants’ calculation) to a high of approximately 5.6 % (plaintiffs calculation).

The name “Seinfeld” appears on the front and back covers of SAT in larger print than any other word, in a typeface which, according to plaintiff, mimics the registered Seinfeld logo. (Golub Dep. Ex. 3). During editing, defendants increased the size of the name “Seinfeld” appearing on the back cover. (Shostak Dep. at 107-08). SAT also includes, both on its front cover and in several of its pages, pictures of the principal actors who *263 appear in the Seinfeld, series. On the back cover, as defendants note, a disclaimer appears indicating that SAT “has not been approved or licensed by any entity involved in creating or producing Seinfeld.” (Golub Ex. 3, back cover). This language is in smaller print than is any other text in the book, but it is surrounded by a border and printed on a shaded background. Defendants contend that their decision to reduce the print size of this disclaimer, while at the same time surrounding it by a border and placing it upon a shaded background, represented an effort to highlight the disclaimer. Plaintiff contends that this decision was a blatant effort by defendants to reduce the prominence of the only indication provided that SAT was produced without plaintiffs cooperation or approval.

Because of its concern with preserving the show’s reputation for quality, plaintiff has been highly selective in marketing products associated with Seinfeld. (Wittenberg Aff. ¶¶’s 14,15). Plaintiff has rejected numerous proposals from publishers seeking approval for a variety of projects related to the show. (Wittenberg Aft. ¶ 23). Plaintiff has licensed the production of a single Seinfeld book, The Entertainment Weekly Seinfeld, Companion, and only after threatening litigation in connection with the book’s initial unauthorized release. (Wittenberg Aff. ¶ 25). Also, plaintiff has licensed the production of a CD-ROM product which includes discussions of Seinfeld episodes, and which might ultimately include a trivia bank. Plaintiff now alleges that it plans to pursue a more aggressive marketing strategy in the future, a strategy which will include the “publication of books related to Seinfeld.” (Wittenberg Aff. ¶ 21). The creative team responsible for Seinfeld would have to be assured creative control over any such projects, however. (Id. at ¶ 23; Wittenberg Dep. at 52). Because that creative team, consisting of Jerry Seinfeld and his partner, Larry David, does not now wish to be distracted from the program, it appears that there has been little, if any, progress in developing such books or products. (Id.).

There is no evidence that the publication of SAT has diminished interest in Seinfeld, or that the profitability of the Seinfeld logo “has been reduced in any way at all.” (Witten-berg Dep. at 110). In fact, the show’s audience has grown since SAT was first published. (Id. at 109). The television network that broadcasts episodes of Seinfeld has distributed copies of SAT in connection with promotions for the program. (Aronson Dep. at 26). Even the executive producer of Seinfeld, George Shapiro, benignly characterizes SAT as “a fun little book.” (Shapiro Dep. at 33). Nevertheless, it is a book which plaintiff believes “free-rides” on the success of Seinfeld, and plaintiff therefore seeks to bar its continued publication.

Plaintiff now moves for summary judgment on its claims of copyright infringement and unfair competition, arguing that SAT is either an unauthorized reproduction, or derivative version, of Seinfeld, 2 Defendants cross-move for summary judgment, claiming that SAT is not substantially similar to Seinfeld, and that, in any event, the book is protected as “fair use” under the Copyright Act. For the reasons that follow, the Court finds for plaintiff with respect to its claims under the Copyright Act, but is unable to grant either party summary judgment on plaintiffs common law claim of unfair competition.

DISCUSSION

Summary judgment is required when “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “The moving party has the initial burden of ‘informing the district court of the basis for its motion’ and identifying the matter ‘it believes demonstrate^] the absence of a genuine issue of material fact.’ “ Leibovitz v. Paramount Pictures Corp., 948 F.Supp. 1214, 1217 (S.D.N.Y.1996) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). Once the movant satisfies its initial burden, the non- *264 moving party must identify “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). In assessing the parties’ competing claims, the Court must resolve any factual ambiguities in favor of the nonmovant. See McNeil v. Aguilos, 831 F.Supp. 1079, 1082 (S.D.N.Y.1993). It is within this framework that the Court must finally determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).

I. Prima Facie Copyright Liability

The Copyright Act grants a copyright holder a variety of rights, including the exclusive rights to “reproduce the copyrighted work” and “to prepare derivative works based upon the copyrighted work.” 17 U.S.C. § 106. To succeed on a claim that these rights have been infringed, a plaintiff must demonstrate two elements: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Telephone Serv., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991) (citations omitted); see also Arica Institute, Inc. v. Palmer, 970 F.2d 1067, 1072 (2d Cir.1992). Defendants do not dispute that plaintiff is the owner of a valid copyright in the individual Seinfeld episodes and scripts. The question of infringement therefore turns upon whether SAT is an impermissible copy of Seinfeld.

A. Copying

“[A] plaintiff must first show that his [or her] work was actually copied ... [and] then must show that the copying amounts to an ‘improper’ or ‘unlawful’ appropriation.” Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139-40 (2d Cir.1992) (citations omitted); see also 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.01[B], at 13-19 (1996) (“First, there is the factual question whether the defendant, in creating its work, used the plaintiffs material as a model, template, or even inspiration.”). Ordinarily, there is no direct evidence of actual copying, and the Court is called upon to “infer [such copying] upon a showing that defendant had access to the copyrighted work, and that the allegedly infringing material bears a substantial similarity to the copyrightable elements of plaintiffs work.” Ari ca, 970 F.2d at 1072; see also Twin Peaks Productions, Inc. v. Publications Int'l Ltd., 996 F.2d 1366, 1372 (2d Cir.1993) (“The plaintiff may establish copying either by direct evidence or by showing that the defendant had access to the plaintiffs work and that the two works are substantially similar.”). In this case, this inquiry is not necessary in order for the Court to make its initial determination that SAT in fact copied from Seinfeld.

Defendants make “no secret” of the fact that SAT is based upon Seinfeld. (Golub Dep. at 95). SAT is expressly devoted to testing elements from the program. Every correct answer to each of the 643 questions posed in the book reflects information derived directly from Seinfeld episodes. (Id. at 36). Moreover, many of the questions posed in SAT, upwards of forty, actually quote dialogue, verbatim, from the show. Such statistics should come as no surprise; a trivia book about Seinfeld would make little sense if it tested matters not included in the program, or if it attributed dialogue to characters which they never spoke. Simply put, there can be no real dispute that, as a factual matter, SAT copies information and dialogue from Seinfeld, 3

The determination that SAT serves as is its own direct evidence of copying does not remove substantial similarity from the infringement equation. See Twin Peaks, 996 *265 F.2d 1866. In Twin Peaks, the defendant published a book which was primarily devoted to digesting episodes of another popular television program, Twin Peaks. Addressing the concept of “fragmented literal similarity,” the Court determined that 89 lines of dialogue copied from the show rendered the book “substantially similar” to the program. Id. at 1372. Because the book digested entire episodes, the Court found that there was “comprehensive nonliteral similarity” between the two works, as well. Id. Of course, the Second Circuit could have found copying, as a factual matter, without searching for substantial similarity; with 89 lines of dialogue quoted in the allegedly infringing book, it was inescapable that some copying had taken place. It is apparent, then, that the Second Circuit applied a substantial similarity test devoted to finding more than mere copying; it applied a test meant to determine whether the copying which had taken place was significant as a matter of law.

“The presence of a ‘substantial similarity1 requirement in both prongs of the analysis — actual copying and whether the copying constitutes an improper appropriation — creates the potential for unnecessary confusion, especially because a plaintiff need not prove substantial similarity in every case in order to prove actual copying.” Laureyssens, 964 F.2d at 140; see also 3 Nimmer § 13.01[B], at 13-11 to 13-12 (distinguishing probative similarity from substantial similarity). Where there is no direct evidence of copying, as a factual matter, a substantial similarity between the two works creates an inference of such copying. Where there are sufficient similarities to permit such an inference, or where there is direct evidence of actual copying, the question becomes whether there is substantial similarity as a matter of law. At this stage, substantial similarity becomes a function of whether defendant copied “elements of the work that were original.” Feist, 499 U.S. at 361, 111 S.Ct. at 1296; Laureyssens, 964 F.2d at 140 (upon finding direct proof of actual copying, Court’s “central concern” became whether there was “unlawful appropriation of protected material.”). For those reasons already explained, the first of these inquiries is unnecessary in the present case; by its very nature, SAT copies at least some material from Seinfeld. The legally significant question therefore becomes whether the copying which took place rendered the two works substantially similar as a matter of law — i.e., whether SAT copied “elements of [Seinfeld ] that were original.” Id.

B. Original Elements of Seinfeld

“The sine qua non of copyright is originality.” Feist, 499 U.S. at 345, 111 S.Ct. at 1287. Indeed, it is for this reason that “[n]ot all copying ... is copyright infringement,” but only the copying of the original elements of a protected work. Id. at 361, 111 S.Ct. at 1296. Addressing this point, defendants invoke a fact/expression distinction that has proven decisive in numerous infringement cases. See, e.g., Feist, 499 U.S. at 341, 111 S.Ct. at 1285-86 (finding no infringement where defendant produced a mul-ti-county phone directory, in part, by obtaining names and phone numbers from plaintiffs single-county directory); Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (finding infringement where defendant published magazine article which did not merely include facts revealed by President Ford in his as yet unpublished memoirs, but which excerpted the President’s expression of those facts); Worth v. Selchow & Righter Co., 827 F.2d 569 (9th Cir.1987) (finding no infringement where defendant incorporated facts chronicled in plaintiffs reference books into a trivia game), cert. denied, 485 U.S. 977, 108 S.Ct. 1271, 99 L.Ed.2d 482 (1988). Specifically, defendants argue that SAT does not copy plaintiffs protected expression, but merely quizzes readers as to the show’s underlying facts and ideas.

Consideration of the logic underlying the fact/expression distinction reveals a fundamental flaw in defendants’ reasoning. The fact/expression dichotomy has been developed in a series of cases concerning the publication of nonfiction works and factual compilations. See, e.g., Feist, 499 U.S. at 341, 111 S.Ct. at 1285-86 (compilation); Harper & Row, 471 U.S. 539, 105 S.Ct. 2218 (nonfiction history). The facts reported in such works “do not owe their origin to an act *266 of authorship.” Feist, 499 U.S. at 347, 111 S.Ct. at 1288. Accordingly, courts have adopted an approach “permitting free communication of [these] facts while still protecting an author’s expression.” Harper & Row, 471 U.S. at 556, 105 S.Ct. at 2228 (quoting, with approval, lower court’s decision, reported at 723 F.2d 195, 203 (2d Cir.1983)). Specifically, protection extends only to the original manner in which the copyright holder expresses or compiles the facts that are reported, and not to the facts themselves. See, e.g., Harper & Row, 471 U.S. 539, 105 S.Ct. 2218; Feist, 499 U.S. 340, 111 S.Ct. 1282. This is an appropriate resolution of the tension between facts and expression because the facts of a nonfiction work simply “do not contain the requisite originality and creativity required as the ‘sine qua non of copyright.’ ” Arica, 970 F.2d at 1074 (citing Feist, 499 U.S. at 345, 111 S.Ct. at 1287).

By contending that they are not reproducing original expression from Seinfeld, but only “uncopyrightable facts about the Seinfeld show,” plaintiffs are staking their claim upon a false premise. (Defendant’s Memorandum of Law in Opposition to Plaintiffs Motion for Partial Summary Judgment at 7). SAT does not pose “factual” questions about the Seinfeld show; it does not ask who acts in the program, who directs or produces the show, how many seasons it has run, etc. Instead, SAT poses questions about the events depicted during episodes of the Seinfeld show. The facts depicted in a Seinfeld episode, however, are quite unlike the facts depicted in a biography, historical text, or compilation. Seinfeld is fiction; both the “facts” in the various Seinfeld episodes, and the expression of those facts, are plaintiffs creation. Thus, while defendants’ book does not report plot developments and digest programs, as in Twin Peaks, SAT is devoted to questions concerning creative components of Seinfeld. In other words, by copying “facts” that plaintiff invented, SAT “appropriate^] [plaintiffs] original contributions.” Harper & Row, 471 U.S. at 548, 105 S.Ct. at 2224. Thus, to find in defendant’s favor merely by rote application of the rule against affording copyright protection to facts would be to divorce that rule from its underlying rationale. Simply put, and of most direct concern under the Copyright Act, defendants have appropriated original elements of plaintiffs work.

Though treating the issue in a very different context, the most recent Second Circuit decision concerning the facfrexpression dichotomy provides additional support for this Court’s conclusion. See National Basketball Association v. Motorola, Inc., 105 F.3d 841 (2d Cir.1997) (hereinafter “NBA”). In NBA the National Basketball Association claimed that defendant infringed their valid copyright in televised professional basketball games by reporting the scores of those games,'during play, to purchasers of their electronic pagers. In finding for defendants, the Court drew a distinction very illuminating for present purposes: the Court noted that, “[u]nlike movies, plays, television programs, or operas, athletic events have no underlying script.” Id. at 846 (emphasis added). On this basis, the Court concluded that the facts of a game (e.g., the score, the foul situation, the time remaining, etc.) could not be protected by the Copyright Act; only those aspects of a broadcast that are under the NBA’s creative control merited such protection (e.g., camera angles, commentary, graphics, etc.). The present case, of course, presents the opposite situation; this case involves facts copied from a “television program” with an “underlying script.” Unlike the facts of a professional basketball game (or the facts compiled in a phone directory or biography), the facts revealed during an episode of Seinfeld are created by the show’s writers. Thus, by reporting “facts” from each episode — whether by transmitting them on a pager, or by including them as the answers to a set of trivia questions — defendants have appropriated “original components” of plaintiffs protected work.

C. Willfulness

Though it is not essential to a finding of liability under the Copyright Act, the question of whether a defendant’s infringement was willful does have a significant bearing upon the potential damages to be awarded in connection with the violation. See 17 U.S.C. § 504(c)(2). “[A] court need not find that an infringer acted maliciously to find *267 willful infringement.” Fitzgerald Pub. Co., Inc. v. Baylor Pub. Co., Inc., 807 F.2d 1110, 1115 (2d Cir.1986). “The standard is simply whether the defendant had knowledge that its conduct represented infringement or perhaps recklessly disregarded the possibility.” Twin Peaks, 996 F.2d at 1382.

The parties have not briefed the question of damages, and the Court is hesitant to make a finding of willfulness outside the context of the damages question which it implicates. Nevertheless, the record provides clear evidence, at a minimum, of defendants’ reckless disregard for the possibility that their conduct amounted to copyright infringement. See Twin Peaks, 996 F.2d at 1382. First, defendants were on notice that Seinfeld is a protected work: each televised episode commences with a copyright notice. (Wittenburg Aff. ¶ 10). Also, all the defendants are sophisticated with respect to such matters. Defendant Golub is an attorney. Mr. Shragis, Carol’s publisher, testified that his company has had experience with the copyright laws, and that he is familiar with the requirements of those laws. (Schragis Dep. at 17, 73-74, 93,107-09). Finally, Carol continued to publish and distribute SAT after receiving actual notice from plaintiff demanding that Carol cease and desist publication. (Schragis Dep. at 17-19). In other words, defendants continued in their infringement even “after receiving a specific warning.” See Twin Peaks, 996 F.2d at 1382.

II. Fair Use

As the preceding discussion demonstrates, plaintiff has established a prima facie case of infringement by showing that SAT appropriates original elements from Seinfeld. Defendants argue, however, that, even if SAT is an unauthorized copy of Seinfeld—as the Court has found it to be—the book is protected by the “fair use” doctrine. As set out in the Copyright Act:

the fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching ..., 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 copyrighted work.

17 U.S.C. § 107. “[T]he applicability of the fair use defense is ordinarily a factual question for the jury to determine.” Roy Export Co. Establishment v. Columbia Broadcasting System, Inc., 503 F.Supp. 1137, 1143 (S.D.N.Y.1980), aff'd, 672 F.2d 1095 (2d Cir.), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982); see also Harper & Row, 471 U.S. at 560, 105 S.Ct. at 2230 (“Fair use is a mixed question of law and fact.”); Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1258 (2d Cir.1986) (“Because the fair use question is so highly dependent on the particular facts of each case, courts ... have usually found it appropriate to allow the issue to proceed to trial.”), cert. denied, 481 U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987). However, where the district court has “facts sufficient to evaluate each of the statutory factors,” it may conclude as a matter of law that the challenged use is not a protected fair use. Harper & Row, 471 U.S. at 560, 105 S.Ct. at 2230; see also Leibovitz, 948 F.Supp. at 1217-18 (citing several cases for the proposition “that a rejection of the fair use defense and a subsequent finding in favor of a copyright plaintiff ... may be appropriate at summary judgment.”).

A. Purpose And Character Of The Use

“The enquiry here may be guided by the examples given in the preamble to § 107, looking to whether the use is for criticism, or comment, or news reporting, and the like.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, 114 S.Ct. 1164, 1171, 127 L.Ed.2d 500 (1994). Though it may be “extravagant” to characterize SAT as a work of criticism or comment, the Court “must be alert to the risk of permitting subjective judgments about quality to tilt the scales on which the *268 fair use balance is made.” Twin Peaks, 996 F.2d at 1374. Surely a text testing one’s knowledge of Joyce’s Ulysses, or Shakespeare’s Hamlet, would qualify as “criticism, comment, scholarship, or research,” or such. The same must be said, then, of a text testing one’s knowledge of Castlerock’s Seinfeld. Id. (“A comment is as eligible for fair use protection when it concerns ‘Masterpiece Theater’ and appears in the New York Review of Books as when it concerns ‘As the World Turns’ and appears in Soap Opera Digest.”). Thus, the Court is satisfied that SAT “serves one or more of the non-exclusive purposes that section 107 identifies as examples of purposes for which a protected fair use may be made.” Id.

As the Supreme Court recently explained, the “central purpose” of the Court’s inquiry into the character and purpose of an allegedly infringing work must be to determine whether that work is “transformative.” Campbell, 510 U.S. at 578-80, 114 S.Ct. at 1171; see also Twin Peaks, 996 F.2d at 1375. Put differently, the analysis properly focuses upon whether “the new work merely ‘supersedes the objects’ of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Campbell, 510 U.S. at 579, 114 S.Ct. at 1171 (citations omitted). Though plaintiff insists that SAT is not at all creative, the Court concludes otherwise. Given the absence of any case law addressing the copyright status of a work completely devoted to posing trivia questions about the fictional elements of another work, it is clear that SAT is itself an “original creation.” By testing Seinfeld devotees on their facility at recalling seemingly random plot elements from various of the show’s episodes, defendants have “added something new” to Seinfeld, and have created a work of a “different character” from the program. It may even be said that defendants have identified a rather crea-five and original way in which to capitalize upon the development of a “T.V. culture” in our society; a culture in which the distinction between fiction and fact is of declining consequence, and in which people are as concerned with the details of the former as the latter.

The Court’s finding that SAT is a transformative work, though important, is not dispositive in defendant’s favor. Indeed, it is a basic axiom of copyright law that the unauthorized production of derivative works can give rise to a successful claim of infringement. See 1 Nimmer § 3.06, at 3-34.4; see also Rogers v. Koons, 751 F.Supp. 474 (S.D.N.Y.1990) (rejecting fair use claim raised by defendant charged with unauthorized creation of a derivative work), aff'd 960 F.2d 301 (2d Cir.), cert. denied, 506 U.S. 934, 113 S.Ct. 365, 121 L.Ed.2d 278 (1992). And a derivative work, by definition, transforms an original. See 17 U.S.C. § 101 (defining a “derivative work” as one which is “based upon,” but which “recast[s], transform[s], or adapt[s],” an original); see also Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905 (2d Cir.1980) (explaining that in order to be classified as a derivative, a work must contain some “substantial, not merely trivial, originality”). Thus, to hold that the transfor-mative nature of a work automatically shields it from a successful claim would be to reject an unassailable proposition — i.e., that the unauthorized production of a derivative can support a claim for infringement. The question of whether a work is transformative must therefore be most decisive when answered in the negative. If a work is not transformative, “fair use should perhaps be rejected without further inquiry into the other factors.” 4 Pierre N. Leval, Toward a Fair Use Standard, 103 Harv.L.Rev. 1105, 1116 (1990). Where, as here, a work is transformative, the crux of the fair use analysis remains: the Court must proceed with a careful consideration of the remaining three factors, while merely granting defendants an advantage at the outset.

*269 Defendants’ initial advantage must be tempered, if only slightly, by the fact that their creation and publication of SAT was a commercial endeavor. The Copyright Act “plainly assigns a higher value to a use that serves ‘nonprofit educational purposes’ than to one of a ‘commercial nature.’ ” Twin Peaks, 996 F.2d at 1374. This factor must not be unduly emphasized, however. As the Supreme Court reasoned in Campbell, “[i]f ... commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107 ... since these activities ‘are generally conducted