Cite as 556 F.Supp.2d 310 (S.D.N.Y. 2008)
Accordingly, both quantitatively and qualitatively, the portion of “Imagine” that defendants copy is reasonable in light of their purpose for doing so. This third factor therefore weighs in favor of fair use.
d. “The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work”
The fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). “In considering the fourth factor, [the] concern is not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps the market of the original work. The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop.” Blanch, 467 F.3d at 258. In this analysis, “[t]he court looks not only to the market harm caused by the particular infringement, but also to whether, if the challenged use becomes widespread, it will adversely affect the potential market for the copyrighted work.” Bill Graham Archives, 448 F.3d at 614.
Plaintiffs understandably contend that if unauthorized use of “Imagine” were to become widespread, it would harm the marketplace for licensing the song. In Bill Graham Archives, however, on a full record developed on a motion for summary judgment, the Second Circuit rejected a similar argument regarding lost licensing revenue. 448 F.3d at 614-15. That court explained that although the plaintiff had established a market for licensing its concert posters, the defendants’ use of the posters in their biographical book “f[ell] within a transformative market,” and therefore the plaintiff “d[id] not suffer market harm due to the loss of licensing fees.” Id. at 615. Here, similarly, defendants copied plaintiffs’ work for a transformative purpose, and plaintiffs have proffered no evidence to date that permitting defendants to use a fifteen-second portion of the song for a transformative purpose will usurp the market for licensing the song for traditional uses. Accordingly, this factor does not weigh strongly, if at all, against fair use.
e. Conclusion Regarding Fair Use
The balance of factors clearly favors a finding of fair use. Defendants’ use of “Imagine” is transformative because their purpose is to criticize the song’s message. Moreover, the amount and substantiality of the portion used is reasonable in light of defendants’ purpose. Although “Imagine,” as a creative work, is at the core of copyright protection, and defendants’ use of the song is at least partially commercial in nature, the weight of these factors against a finding of fair use is limited given that defendants’ use is transformative. Finally, plaintiffs have not shown that defendants’ use will usurp the market for licensing the song for non-transformative purposes. In sum, allowing defendants’ use would better serve “the copyright law’s goal of promoting the Progress of Science and useful Arts . . . than [would] preventing it.” Blanch, 467 F.3d at 251 (internal quotation marks omitted). Defendants have established that they are likely to prevail on their fair use defense, and accordingly plaintiffs have not shown that they are clearly likely to succeed on the merits of their copyright infringement claim.
C. Balance of Hardships
Although plaintiffs have failed to establish a clear likelihood of success on the merits, they are still entitled to a preliminary injunction if they can show “sufficiently serious questions going to the merits of the case to make them a fair ground for litigation, and a balance of
