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In determining whether a use is fair, a court is to consider four enumerated factors, although these factors are non-exclusive. The four factors are: (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.
"Twin Peaks" premiered on ABC in April 1990. The first eight episodes received high ratings -- up to a third of the nation's television viewers -- and extensive positive press coverage. The second season of the show was far less successful, leading to its cancellation in June 1991. The producer of the show, Twin Peaks Productions, Inc. (“TPP”)(formerly Lynch/Frost Productions) obtained copyright registrations and owns the unregistered trademark TWIN PEAKS. In October 1990, defendant Publications International, Ltd. (“PIL”) published "Welcome to Twin Peaks: A Complete Guide to Who's Who and What's What" ("the Book"), based on the first eight episodes. The 128-page book has seven chapters, dealing with, respectively, (1) the popularity of the show; (2) the characters and the actors who play them; (3) the plots of the eight episodes, some commentary on the plots, and "unanswered questions"; (4) David Lynch, the creator of the show; (5) Mark Frost, the producer of the show, and Snoqualmie, Washington, the location of the show; (6) the music of the show; and (7) trivia questions and quotations constituting the "wit and wisdom of Agent Cooper," one of the characters. The cover of the book contains a disclaimer, indicating that PIL is not affiliated with Lynch/Frost Productions, ABC, and various other entities. The book was written by defendant Scott Knickelbine and distributed by defendant Penguin USA, Inc., under its SIGNET imprint. Defendant Louis N. Weber is the president of PIL. Upon publication, PIL was threatened with a copyright action by Simon & Schuster, which holds certain book rights to the "Twin Peaks" programs. PIL responded by instituting a declaratory judgment action against Simon & Schuster in the Northern District of Illinois. TPP made its own demand that PIL cease production of the Book, and PIL amended its complaint in the declaratory judgment action to add TPP as a defendant. TPP moved successfully to dismiss the action against it for lack of personal jurisdiction. The litigation between PIL and Simon & Schuster was settled in February 1991 by an agreement allowing PIL to continue publication of the Book with certain modifications. TPP thenfiled the instant action in the Southern District of New York, alleging copyright infringement, trademark infringement, unfair competition, and trademark dilution. The parties cross-moved for summary judgment on liability, stipulating that there were no disputed issues of fact. The District Court found for TPP on the copyright, trademark, and unfair competition claims, and for PIL on the trademark dilution claim. The Court rejected fair use and First Amendment defenses asserted by PIL. The Court enjoined further copyright or trademark violations, and awarded TPP damages.
Did the book which contained a detailed summary of the plot of Twin Peaks, a fictional work, constitute fair use of said fictional work?
As to the first element, PIL's detailed report of the plots went far beyond merely identifying their basic outline for the transformative purposes of comment or criticism. What PIL had done was simply to recount for its readers precisely the plot details of each teleplay. This constituted “abridgements”. An abridgment of a copyrighted work is likely to be found to be prima facie infringing. Here, the abridgment served no transformative function and elaborated in detail far beyond what was required to serve any legitimate purpose. As to the second element, PIL seemed to contend that the magnitude of public reaction to the televised programs made the entire content of the teleplays a fact that could be reported and analyzed. Yet the second factor, if it favored anything, must favor a creative and fictional work, no matter how successful. As to the third element, PIL erroneously claimed that the District Court made no finding of substantiality "in relation to the teleplays or the television series as a whole." In fact, the District Court found that the Book "provides synopses for several episodes, lifting many parts verbatim from the script." Even without this finding, the District Court's determination that the Book was substantially similar to the teleplays so as to be prima facie infringing should suffice for a determination that the third fair use factor favors the plaintiff, whether the copyrighted works are the teleplays or the videotapes. As to the fourth element, the Book might interfere with the primary market for the copyrighted works and almost certainly interfered with legitimate markets for derivative works. It was possible that a person who had missed an episode of "Twin Peaks" would find reading the Book an adequate substitute, and would not need to rent the videotape of that episode in order to enjoy the next one. The author of "Twin Peaks" cannot preserve for itself the entire field of publishable works that wish to cash in on the "Twin Peaks" phenomenon. But it may rightfully claim a favorable weighting of the fourth fair use factor with respect to a book that reports the plot in such extraordinary detail as to risk impairment of the market for the copyrighted works themselves or derivative works that the author is entitled to license.