Cite as 714 F.3d 694 (2nd Cir. 2013)
lyze material evidence under the proper standard.
Unlike the majority, I would allow the district court to consider Prince’s statements in reviewing fair use. While not the sine qua non of fair use, see Blanch v. Koons, 467 F.3d 244, 255 n. 5 (2d Cir.2006), I see no reason to discount Prince’s statements as the majority does. While it may seem intuitive to assume that a defendant claiming fair use would typically give self-serving ex post facto testimony to support a defense, this Court has nevertheless relied on such statements when making this inquiry—even if just to confirm its own analysis. See id. at 252–53, 255; see also Castle Rock Entm’t, Inc. v. Carol Publ’g Grp, Inc., 150 F.3d 132, 142 (2d Cir.1998) (looking to statements of the allegedly infringing work’s creators when analyzing the purpose and character of the secondary work). Thus, I view Prince’s statements—which, as Prince acknowledges, consist of “his view of the purpose and effect of each of the individual [p]aintings”—as relevant to the transformativeness analysis.
The majority relies on the Seventh Circuit’s decision in Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687 (7th Cir.2012), for the proposition that all the Court needs to do here to determine transformativeness is view the original work and the secondary work and, apparently, employ its own artistic judgment. In my view, Brownmark cannot be extended so far. Brownmark arose under an unusual procedural posture: a motion to dismiss based on a non-pleaded fair use affirmative defense converted into a motion for summary judgment on appeal. See id. The court in Brownmark determined that it needed only to review the allegedly infringing video against the original to determine that the secondary work was permissible parody. Id. at 692–93. It appears to me, however, that Brownmark left open the possibility that additional evidence could be relevant to the fair use inquiry in a different procedural context. See id. at 692 n. 2 (identifying that the defendant could have put forth additional evidence to bolster its fair use defense if the case arose from a typical summary judgment motion); id. at 692 (stating that the district court was only required to consider the original and-secondary videos, “especially in light of [the plaintiff’s] failure to make any concrete contention” as to the secondary video’s potential market impact).
Further, Brownmark apparently arose in the context of a clear case of parody—so obvious that the appeals court affirmed the district court’s conclusion that fair use was evident from even a “fleeting glance” at the original and secondary works. Id. at 689–90. I do not believe that the transformativeness of Prince’s works—which have not been presented as parody or satire—can be so readily determined. Because this case arises after extensive discovery and argument by the parties, I disagree that we must limit our inquiry to our own artistic perceptions of the original and secondary works.
Indeed, while I admit freely that I am not an art critic or expert, I fail to see how the majority in its appellate role can “confidently” draw a distinction between the twenty-five works that it has identified as constituting fair use and the five works that do not readily lend themselves to a fair use determination. This, mind you, is done on a summary judgment review with no understanding of what additional evidence may be presented on remand. I also fail to see a principled reason for remanding to the district court only the five works the majority identifies as close calls, although I agree that they must be sent back to the trial court. If the district
