Opinion by Judge MCKEOWN; Concurrence by Judge WATFORD; Dissent by Judge KOZINSKI.

OPINION

McKEOWN, Circuit Judge:

In this case, a heartfelt plea for personal protection is juxtaposed with the limits of copyright law and fundamental principles of free speech. The appeal teaches a simple lesson — a weak copyright claim cannot justify censorship- in the guise of authorship.

By all accounts, Cindy Lee Garcia was bamboozled when a movie producer transformed her five-second acting performance into .part of a blasphemous video proclamation against the Prophet Mohammed.1 The producer — now in jail on unrelated matters — uploaded a trailer of the film, Innocence of Muslims, to YouTube. Mil*737lions of viewers soon watched it online, according to Garcia. News outlets credited the film as a source of violence in the Middle East. Garcia received death threats.

Asserting that she holds a copyright interest in her fleeting performance, Garcia sought a preliminary injunction requiring Google to remove the film from all of its platforms, including YouTube. The district court denied the injunction, finding that Garcia did not establish likely success on the merits for her copyright claim. Nor did she demonstrate that the injunction would prevent any alleged harm in light of the film’s five-month presence on the Internet. A divided panel of our court reversed, labeled her copyright claim as “fairly debatable,” but then entered a mandatory injunction requiring Google to remove the film. That injunction was later limited to versions of the film featuring Garcia’s performance.

As Garcia characterizes it, “the main issue in this case involves the vicious frenzy against Ms. Garcia that the Film caused among certain radical elements of the Muslim community.” We are sympathetic to her plight. Nonetheless, the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law, and Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression. Garcia’s theory can be likened to “copyright cherry picking,” which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act. Putting aside the rhetoric of Hollywood hijinks and the dissent’s dramatics, this case must be decided on the law.

In light of the Copyright Act’s requirements of an “original work[ ] of authorship fixed in any tangible medium,” 17 U.S.C. § 102(a), the mismatch between Garcia’s copyright claim and the relief sought, and the Copyright Office’s rejection of Garcia’s application for a copyright in her brief performance, we conclude that the district court did not abuse its discretion in denying Garcia’s request for the preliminary injunction. As a consequence, the panel’s mandatory injunction against Google was unjustified and is dissolved upon publication of this opinion.

Background and Procedural History

In July 2011, Cindy Lee Garcia responded to a casting call for a film titled Desert Warrior, an action-adventure thriller set in ancient Arabia. Garcia was cast in a cameo role, for which she. earned $500. She received and reviewed a few pages of . script. Acting under a professional director hired to oversee production, Garcia spoke two sentences: “Is George crazy? Our daughter is but a child?” Her role was to deliver those lines and to “seem[ ] concerned.”

Garcia later discovered that writer-dir rector Mark Basseley Youssef (a.k.a. Nak-oula Basseley Nakoula or Sam Bacile) had a different film in mind: an anti-Islam polemic renamed Innocence of Muslims. The film, featuring a crude production, depicts the Prophet Mohammed as, among other things, a murderer, pedophile, and homosexual. Film producers dubbed over Garcia’s lines and replaced them with a voice asking, “Is your Mohammed a child molester?” Garcia appears on screen for only five seconds.

Almost a year after the casting call, in June 2012, Youssef uploaded a 13-minute- and-51-second trailer of Innocence of Muslims to YouTube, the video-sharing website owned by Google, Inc., which boasts a global audience of more than one *738billion visitors per month.2 After it was translated into Arabic, the film fomented outrage across the Middle East, and media reports linked it to numerous violent protests. The film also has been a subject of political controversy over its purported connection to the September 11, 2012, attack on the United States Consulate in Benghazi, Libya.

Shortly after the Benghazi attack, an Egyptian cleric issued a fatwa against anyone associated with Innocence of Muslims, calling upon the “Muslim Youth in Amer-iea[ ] and Europe” to “kill the director, the producer!,] and the actors and everyone who helped and promoted this film.” Garcia received multiple death threats.

Legal wrangling ensued. Garcia asked Google to remove the film, asserting it was hate speech and violated her state law rights to privacy and to control her likeness. Garcia also sent Google five take-down notices under the Digital Millenium Copyright Act, 17 U.S.C. § 512, claiming that YouTube’s broadcast of Innocence of Muslims infringed her copyright in her “audio-visual dramatic performance.” Google declined to remove the film.

On September 19, 2012, Garcia first sued Google, Youssef, and other unnamed production assistants in Los Angeles Superior Court. Her complaint alleged a compendium of torts and assorted wrongdoing under California law. As against Google, Garcia made claims for invasion of privacy, false light, and violating her right to publicity. She brought the same claims against Youssef and added fraud, unfair business practices, slander, and intentional infliction of emotional distress. The state court denied Garcia’s motion for a “temporary restraining order and for an order to show cause re preliminary injunction,” because she had “not shown a likelihood of success on the merits.” On September 25, 2012, Garcia voluntarily dismissed her state court suit.

One day later, Garcia turned to federal court. She filed suit in the United States District Court for the Central District of California and again named Google and Youssef as codefendants. Garcia alleged copyright infringement against both defendants and revived her state law claims against Youssef for fraud, unfair business practices, libel, and intentional infliction of emotional distress.

Garcia then moved for a temporary restraining order and for an order to show cause on a preliminary injunction — but only on the copyright claim. She sought to bar Google from hosting Innocence of Muslims on YouTube or any other Google-run website.

On November 30, 2012, the district,court denied Garcia’s motion for a preliminary injunction. As an initial matter, the court concluded that “Garcia ha[d] not demonstrated that the requested relief would prevent any alleged harm,” because, by that point, the film trailer had been on the Internet for five months. Nor did Garcia establish a likelihood of success on the merits. In particular, the district court found that the nature of Garcia’s copyright interest was unclear, and even if she could establish such a copyright, she granted the film directors an implied license' to “distribute her performance as a contribution incorporated into the indivisible whole of the Film.”

A divided panel of our court reversed. More than a year and a half after the film was first uploaded, the panel majority first *739issued a secret takedown order, giving Google twenty-four hours to remove all copies of Innocence of Muslims from YouTube and other Google-controlled platforms. The panel embargoed disclosure of the order until it issued its opinion. The panel later amended the order to allow YouTube to post any version of the film that did not include Garcia’s performance.

In its later-issued opinion, the panel majority reversed the district court and granted 'Garcia’s preliminary injunction. Garcia v. Google, Inc., 743 F.3d 1258, amended by Garcia v. Google, Inc., 766 F.3d 929 (9th Cir.2014). Despite characterizing Garcia’s copyright claim as “fairly debatable,” the panel majority nonetheless concluded that Garcia was likely to prevail on her copyright claim as to her individual performance in Innocence of Muslims. 766 F.3d at 935. In contrast to the district court’s factual finding of an implied license from Garcia to Youssef, the panel opinion held that the license ran in the opposite direction: ‘Youssef implicitly granted [Garcia] a license to perform his screenplay,” and that Garcia did not grant Yous-sef an implied license to incorporate her performance into the film. Id. at 935-38. Finally, the panel majority held that, because of the death threats against her, Garcia had established irreparable harm and the equities and public interest favored an injunction. Id. at 938-40. The opinion did not address the First Amendment consequences of the mandatory take-down injunction, beyond stating that the First Amendment does not protect copyright infringement.

Judge N.R. Smith dissented. He wrote that Garcia had not met the high burden required for a mandatory preliminary injunction because she was unlikely to succeed on her copyright claim. Id. at 941 (N.R. Smith, J., dissenting). Specifically, Garcia was not likely to prove her performance was a “work,” nor would she likely meet the copyright requirements of authorship and fixation, among other shortcomings with her claim. Id. at 946. In sum, “[bjecause the facts and law do not ‘clearly favor’ issuing a preliminary injunction to Garcia, the district court did not abuse its discretion in denying Garcia’s requested relief.” Id. at 940.

We granted rehearing en banc.3 Garcia v. Google, Inc., 771 F.3d 647 (9th Cir.2014).

ANALYSIS

I. The District Court’s Decision

Garcia sued under a slew of legal theories, but she moved for a preliminary injunction on just one of them: the copyright claim. Hence, copyright is the only basis for the appeal. Garcia’s tort allegations — and claimed harm resulting from those torts, such as emotional distress — do not figure into our analysis.

We begin with the basics.

The district court’s order denying Garcia’s motion for a preliminary injunction is reviewed for abuse of discretion. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011). Because our review is deferential, “[w]e will not reverse the district court where it ‘got the law right,’ even if we ‘would have arrived at a different result,’ so long as the district court did not clearly err in its factual determinations.” Id. (internal citation omitted).

*740The Supreme Court has emphasized that preliminary injunctions are an “extraordinary remedy never awarded as of right.” Winter v. NRDC, 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The district court correctly identified that Garcia must satisfy Winter’s four-factor test. “A plaintiff seeking a preliminary' injunction must show that: (1) she is likely to succeed on the merits, (2) she is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in her favor, and (4) an injunction is in the public interest.” Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir.2012) (citing Winter, 555 U.S. at 20, 129 S.Ct. 365).

The first factor under Winter is the most important — likely success on the merits. Aamer v. Obama, 742 F.3d 1023, 1038 (D.C.Cir.2014) (“We begin with the first and most important factor: whether petitioners have established a likelihood of success on the merits.”). Because it is a threshold inquiry, when “a plaintiff has failed to show the likelihood of success on the merits, we ‘need not consider the remaining three [Winter elements].’ ” Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 944 (9th Cir.2013) (quoting DISH Network Corp. v. F.C.C., 653 F.3d 771, 776-77 (9th Cir.2011)).

Garcia’s burden here is doubly demanding: Because Garcia seeks a mandatory injunction, she must establish that the law and facts clearly favor her position, not simply that she is likely to succeed.

Why? Garcia’s requested injunction required Google to take affirmative action — to remove (and to keep removing) Innocence of Muslims from YouTube and other sites under its auspices, whenever and by whomever the film was uploaded. This relief is treated as a mandatory injunction, because it “orders a responsible party to ‘take action.’ ” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir.2009) (citation omitted). As we have cautioned, a mandatory injunction “goes well beyond simply maintaining the status quo penden-te lite [and] is particularly disfavored.”4 Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir.1994) (internal citations omitted). The “district court should deny such relief ‘unless the facts and law clearly favor the moving party.’ ” Id. (quoting Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir.1979)). In plain terms, mandatory injunctions should not issue in “doubtful cases.” Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th Cir.2011);

As we shall see, the district court did not abuse its discretion in concluding that Garcia was not likely to succeed on her copyright claim — much less that the law and facts clearly compel suppression of a controversial and politically significant film.

A. Copyright

The central question is whether the law and facts clearly favor Garcia’s claim to a copyright in her five-second acting performance as it appears in Innocence of Muslims. The answer is no. This conclusion does not mean that a plaintiff like Garcia is without options or that she *741couldn’t have sought an injunction against different parties or on other legal theories, like the right of publicity and defamation.5

Under the Copyright Act, “[cjopyright protection subsists ... in original works of authorship fixed in any tangible medium of expression ... [including] motion pictures.” 17 U.S.C. § 102(a). That fixation must be done “by or under the authority of the author.” 17 U.S.C. § 101. Bench-marked against this statutory standard, the law does not clearly favor Garcia’s position.

The statute purposefully left “works of authorship” undefined to provide for some flexibility. See 1 Nimmer on Copyright § 2.03. Nevertheless, several other provisions provide useful guidance. An audiovisual work is one that consists of “a series of related images which are intrinsically intended to be shown” by machines or other electronic equipment, plus “accompanying sounds.” 17 U.S.C. § 101. In turn, a “motion picture” is an “audiovisual work[] consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.” Id. These two definitions embody the work here: Innocence of Muslims is ah audiovisual work that is categorized as a motion picture and is derivative of the script. Garcia is the author of none of this and makes no copyright claim to the film or to the script.6 Instead, Garcia claims that her five-second performance itself merits copyright protection.

In the face of this statutory scheme, it comes as no surprise that during this litigation, the Copyright Office found that Garcia’s performance was not a copyrightable work when it rejected her copyright application. The Copyright Office explained that its “longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture.” Thus, “[f]or copyright registration purposes, a motion picture is a single integrated work.... Assuming Ms. Garcia’s contribution was limited to her acting performance, we cannot register her performance apart from the motion picture.”

We credit this expert opinion of the Copyright Office — the office charged with administration and enforcement of the copyright laws and registration.7 See Inhale, Inc. v. Starbuzz Tobacco, Inc., 755 F.3d 1038, 1041-42 (9th Cir.2014). The Copyright Office’s well-reasoned position *742“reflects a ‘body of experience and informed judgment to which courts and litigants may properly resort for guidance.’ ” Southco, Inc. v. Kanebridge Corp., 390 F.3d 276, 286 n. 5 (3d Cir.2004) (en banc) (Alito, J.) (quoting Yates v. Hendon, 541 U.S. 1, 3, 124 S.Ct. 1330, 158 L.Ed.2d 40 (2004)).8

In analyzing whether the law clearly favors Garcia, Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir.2000), provides a useful foundation. There, we examined the meaning of “work” as the first step in analyzing joint authorship of the movie Malcolm X. The Copyright Act provides that when a work is “prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole,” the work becomes a “joint work” with two or more authors. 17 U.S.C. § 101 (emphasis added). Garcia unequivocally disclaims joint authorship of the film.

In Aalmuhammed, we concluded that defining a “work” based upon “some minimal level of creativity or originality ... would be too broad and indeterminate to be useful.”9 202 F.3d at 1233 (internal quotation marks omitted). Our animating concern was that this definition of “work” would fragment copyright protection for the unitary film Malcolm X into many little pieces:

So many people might qualify as an “author” if the question were limited to whether they made a substantial creative contribution that that test would not distinguish one from another. Everyone from the producer and director to casting director, costumer, hairstylist, and “best boy” gets listed in the movie credits because all of their creative contributions really do matter.

Id.

Garcia’s theory of copyright law would result in the legal morass we warned against in Aalmuhammed — splintering a movie into many different “works,” even in the absence of an independent fixation. Simply put, as Google claimed, it “make[s] Swiss cheese of copyrights.”.

Take, for example, films with a large cast — the proverbial “cast of thousands” 10 —such as Benr-Hur or Lord of the Rings. 11 *743The silent epic Ben-Hur advertised a cast of 125,000 people. In the Lord of the Rings trilogy, 20,000 extras tramped around Middle-Earth alongside Frodo Baggins (played by Elijah Wood). Treating every acting performance as an independent work would not only be a logistical and financial nightmare, it would turn cast of thousands into a new mantra: copyright of thousands.

The dissent spins speculative hypotheti-cals about copyright protection for book chapters, movie outtakes, baseball games, and Jimi Hendrix concerts. See Dissent at 749-50, 751. This hyperbole sounds a false alarm. Substituting moral outrage and colorful language for legal analysis, the dissent mixes and matches copyright concepts such as collective works, derivative works, the requirement of fixation, and sound recordings. The statutory definitions and their application counsel precision, not convolution. See, e.g., 17 U.S.C. §§ 101, 103, 114, 201. The citation to Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir.1990) (Kozinski, J.), is particularly puzzling. There, neither party disputed the plaintiffs copyright, and the plaintiff independently fixed the special-effects footage and licensed it to the filmmakers. See id. at 556 n. 2

The reality is that contracts and the work-made-for-hire doctrine govern much of the big-budget Hollywood performance and production world. See 1 Nimmer on Copyright § 6.07[B][2], Absent these formalities, courts have looked to implied licenses. See Effects Assocs., 908 F.2d at 559-60. Indeed, the district court found that Garcia granted Youssef just such an implied license to incorporate her performance into the film.12 But these legal niceties do not necessarily dictate whether something is protected by copyright, and licensing has its limitations. As filmmakers warn, low-budget films rarely use licenses. Even if filmmakers diligently obtain licenses for everyone on set, the contracts are not a panacea. Third-party content distributors, like YouTube and Netflix, won’t have easy access to the licenses; litigants may dispute their terms and scope; and actors and other content contributors can terminate licenses after thirty five years. See 17 U.S.C. § 203(a)(3). Untangling the complex, difficult-to-access, and often phantom chain of title to tens, hundreds, or even thousands of standalone copyrights is a task that could tie the distribution chain in knots. And filming group scenes like a public parade, or the 1963 March on Washington, would pose a huge burden if each of the thousands of marchers could claim an independent copyright.

Garcia’s copyright claim faces yet another statutory barrier: She never fixed her acting performance in a tangible medium, as required by 17 U.S.C. § 101 (“A work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or phono-record, by or under the authority of the author, is sufficiently permanent or stable *744to permit it to be perceived, reproduced, or otherwise communicated. for a period of more than transitory duration.”) (emphasis added). According to the Supreme Court, “the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). Garcia did nothing of the sort.13

For better or for worse, Youssef and his crew “fixed” Garcia’s performance in the tangible medium, whether in physical film or in digital form. However one might characterize Garcia’s performance, she played no role in fixation. On top of this, Garcia claims that she never agreed to the film’s ultimate rendition or. how she was portrayed in Innocence of Muslims, so she can hardly argue that the film or her cameo in it was fixed “by or under [her] authority.” 17 U.S.C. § 101.

In sum, the district court committed no error in its copyright analysis. Issuance of the mandatory preliminary injunction requires more than a possible or fairly debatable claim; it requires a showing that the law “clearly favor[s]” Garcia. See Stanley, 13 F.3d at 1320. Because neither the Copyright Act nor the Copyright Office’s interpretation supports Garcia’s claim, this is a hurdle she cannot clear.

B. Irreparable Harm

Although we could affirm the district court solely on the copyright issue, see DISH Network, 653 F.3d at 776-77, we address irreparable harm because the grave danger Garcia claims cannot be discounted and permeates the entire lawsuit.

At first blush, irreparable harm looks like Garcia’s strongest argument. Garcia understandably takes seriously the fatwa and threats against her and her family, and so do we. The difficulty with Garcia’s claim is that there is a mismatch between her substantive copyright claim and the dangers she hopes to remedy through an injunction. Garcia seeks a preliminary injunction under copyright law, not privacy, fraud, false light or any other tort-based cause of action. Hence, Garcia’s harm must stem from copyright — namely, harm to her legal interests as an author. Salinger v. Colting, 607 F.3d 68, 81 & n. 9 (2d Cir.2010) (“The relevant harm is the harm that ... occurs to the parties’ legal interests. ...”).

Looking to the purpose of copyright underscores the disjunction Garcia’s case presents. Article 1, Section 8 of the U.S. Constitution provides that copyrights “promote the Progress of Science and useful arts.” Hence, the “Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985); see also Eldred v. Ashcroft, 537 U.S. 186, 219, 123 S.Ct. 769, 154 L.Ed.2d 683 (2003) (noting that “copyright’s purpose is to promote the creation and publication of free expression”) (emphasis in original). In keeping with copyright’s function, “the justification of the •copyright law is the protection of the com *745 mercial interest of the [ jauthor. It is not to ... protect secrecy, but to stimulate creation by protecting its rewards.” Salinger, 607 F.3d at 81 n. 9 (quoting New Era Publ’ns Int’l, ApS v. Henry Holt & Co., 695 F.Supp. 1493, 1526 (S.D.N.Y.1988)).

As Garcia frames it, “the main issue in this case involves the vicious frenzy against Ms. Garcia that the Film caused among certain radical elements of the Muslim community,” which has caused “severe emotional distress, the destruction of her career and reputation” and credible death threats. With respect to irreparable harm, she argues that “[t]he injuries she seeks to avoid — damage to her reputation, unfair[,] forced promotion of a hateful Film, and death — will be avoided if any injunction issues.”

This relief is not easily achieved under copyright law. Although we do not take lightly threats to life or the emotional turmoil Garcia has endured, her harms are untethered from — and incompatible with— copyright and copyright’s function as the engine of expression.

In broad terms, “the protection of privacy is not a function of the copyright law.... To the contrary, the copyright law offers a limited monopoly to encourage ultimate public access to the creative work of the author.” Bond v. Blum, 317 F.3d 385, 395 (4th Cir.2003); see also Monge v. Maya Magazines, Inc., 688 F.3d 1164, 1177 (9th Cir.2012) (quoting Bond and “pointedly” noting copyright cases are analyzed “only under copyright principles, not privacy law”).

Likewise, authors cannot seek emotional distress damages under the Copyright Act, because such damages are unrelated to the value and marketability of their works. See In re Dawson, 390 F.3d 1139, 1146 n. 3 (9th Cir.2004) (noting that “ ‘actual damages’ in the context of the Copyright Act ... cover only economic damages” (internal citation omitted)); Mackie v. Rieser, 296 F.3d 909, 917 (9th Cir.2002) (rejecting copyright damages where “the infringement did not in any way influence the market value” of a piece of outdoor artwork but instead boiled down to the author’s “personal objections to the manipulation of his artwork”).

By way of example, erstwhile professional wrestler and reality TV star Hulk Hogan wanted to enjoin Gawker.com from posting a sex tape of Hogan with a mistress, claiming copyright infringement. Bollea v. Gawker Media, LLC, 913 F.Supp.2d 1325, 1327 (M.D.Fla.2012). The district court found an absence of irreparable harm because Hogan “produced no evidence demonstrating that he will suffer irreparable harm in the copyright sense absent a preliminary injunction. The only evidence in the record reflecting harm to [Hogan] relates to harm suffered by him personally and harm to his professional image due to the ‘private’ nature of the Video’s content. This evidence does not constitute irreparable harm in the context of copyright infringement.” Id. at 1329; cf. New Era Publ’ns, 695 F.Supp. at 1499 (denying injunction sought “not in good faith for its intended purpose of protecting the value of publication rights, but rather to suppress a derogatory study of the founder of the Church of Scientology”).

Privacy laws, not copyright, may offer remedies tailored to Garcia’s personal and reputational harms. On that point, we offer no substantive view. Ultimately, Garcia would like to have her connection to the film forgotten and stripped from YouTube. Unfortunately for Garcia, such a “right to be forgotten,” although recently affirmed by the Court of Justice for the European Union, is not recognized in the United States. See Case C-131/12, Google *746 Spain SL v. Agenda Española de Protec-ción de Datos (AEPD), ECLI:EU:C:2014:616 (May 13, 2014) (requiring Google to consider individual requests to remove personal information from its search engine); Internet Law— Protection of Personal Data — Court of Justice of the European Union Creates Presumption that Google Must Remove Links to Personal Data Upon Request, 128 Harv. L.Rev. 735 (2014).

Nor is Garcia protected by the benefits found in many European countries, where authors have “moral rights” to control the integrity of their works and to guard against distortion, manipulation, or misappropriation. See Kelley v. Chicago Park Dist., 635 F.3d 290, 296 (7th Cir.2011) (describing differences in moral rights in American copyright law versus other countries). Except for a limited universe of works of visual art, such as paintings and drawings protected under the Visual Artists Rights Act of 1990, United States copyright law generally does not recognize moral rights. 17 U.S.C. § 106A. Motion pictures specifically are excluded from moral rights protection. § 106A; § 101 (“[W]ork of visual art does not include ... any ... motion picture or other audiovisual work. ...”).

In short, Garcia’s harms are too attenuated from the purpose of copyright. We do not foreclose that in a different circumstance with a strong copyright claim, a court could consider collateral consequences as part of its irreparable harm analysis and remedy. 17 U.S.C. § 502 (providing that the court may grant injunctions “as it may deem reasonable to prevent or restrain infringement of a copyright”). But such a case is not before us.

Garcia waited months to seek an injunction after Innocence of Muslims was uploaded to YouTube in July 2012; she did not seek emergency relief when the film first surfaced on the Internet. The district court did not abuse its discretion by finding this delay undercut Garcia’s claim of irreparable harm. See Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1377 (9th Cir.1985) (“Plaintiffs long delay before seeking a preliminary injunction implies a lack of urgency and irreparable harm.”); 4 Nimmer on Copyright § 14.06[A][3][e] (noting unreasonable delay can defeat irreparable injury and the length of time “need not be great”). Garcia notes that she moved swiftly once the film was translated into Arabic and sparked death threats against her. But that proves the point: the gravamen of Garcia’s harm is untethered from her commercial interests as a performer, and instead focuses on the personal pain caused by her association with the film.

The district court did not abuse its dis-. cretion in determining that Garcia failed to muster a clear showing of irreparable harm. See Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989, 999-1000 (9th Cir.2011) (“Harm must be proved, not presumed.” (quoting 4 Nimmer on Copyright § 14.06[A][5])).

In the face of a doubtful copyright claim and the absence of irreparable harm to Garcia’s interests as an author, we need not consider the final two Winter factors, the balance of equities and public interest.

II. The Panel’s Injunction

In February 2014, the panel majority issued the following injunction: “Google, Inc. shall take down all copies of ‘Innocence of Muslims’ from YouTube.com and from any other platforms under Google’s control, and take all reasonable steps to prevent further uploads of ‘Innocence of Muslims’ to those platforms.” Soon after, the panel amended the order to state that the prohibition did “not preclude the posting or display of any version of ‘Innocence *747of Muslims’ that does not include Cindy Lee Garcia’s performance.”

Although the first order was more sweeping, the second cast the court in the uneasy role of film editor. The amendment only mattered if Google assumed authority to change the content of someone else’s copyrighted film. To no one’s surprise, the end result was the same: the entire film remained removed from YouTube.

The takedown order was unwarranted and incorrect as a matter of law, as we have explained above. It also gave short shrift to the First Amendment values at stake. The mandatory injunction censored and suppressed a politically significant film — based upon a dubious and unprecedented theory of copyright. In so doing, the panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar.

Although the intersection between copyright and the First Amendment is much-debated,14 the Supreme Court teaches that copyright is not “categorically immune from challenges under the First Amendment.” Eldred, 537 U.S. at 221, 123 S.Ct. 769 (internal citation omitted). To be sure, this is not a case of garden-variety copyright infringement, such as seeking to restrain the use of copyrighted computer code. The panel’s takedown order of a film of substantial interest to the public is a classic prior restraint of speech. Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) (“Temporary restraining orders and permanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints.”). Prior restraints pose the “most serious and the least tolerable infringement on First Amendment rights,” Hunt v. NBC, 872 F.2d 289, 293 (9th Cir.1989) (citation omitted), and Garcia cannot overcome the historical and heavy presumption against such, restraints with a thin copyright claim in a five-second performance.

The amended injunction issued February 28, 2014 is dissolved immediately and has no force or effect.

Conclusion

At this stage of the proceedings, we have no reason to question Garcia’s claims that she was duped by an unscrupulous filmmaker and has suffered greatly from her disastrous association with the Innocence of Muslims film. Nonetheless, the district court did not abuse its discretion when it denied Garcia’s motion for a preliminary injunction under the copyright laws.

AFFIRMED.

WATFORD, Circuit Judge,

concurring in the judgment:

We don’t. have to craft new rules of copyright law to resolve this appeal. We just have to follow the law we established a few years ago, without controversy, on the subject of irreparable harm. The majority’s decision to do more is a mistake in my view, and not just because much of what the majority says about copyright law may be wrong. See Dissent at 749-51. We are usually well advised to decide no more than we need to, even when resolving routine appeals typical of those we’re likely to see in the future. We should be all the more cautious when resolving an appeal like this one, a case that could not be more atypical as far as copyright infringement *748actions go and one that is highly charged on both sides to boot. Because the risk of making bad law in these circumstances is particularly high, we should aim to decide as narrowly as we can, leaving the task of crafting broad new rules for a case in which it is actually necessary to do so. See Frederick Schauer, Do Cases Make Bad Law?, 73 U. Chi. L.Rev. 883, 916 (2006).

Had we chosen to decide narrowly here, we could have affirmed the district court’s denial of a preliminary injunction by focusing solely on the irreparable harm prong. Garcia bore the burden of showing that “irreparable injury is likely in the absence of’ the requested injunction. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The only form of injury Garcia has alleged that could qualify as irreparable is the risk of death she faces as a result of the fatwa issued against her. Unlike the majority, I’m willing to assume that the risk of death qualifies as irreparable injury in this context. But under our decision in Perfect 10, Inc. v. Google, Inc., 653 F.3d 976 (9th Cir.2011), Garcia also had to prove a “causal connection” between the irreparable injury she faces and the conduct she hopes to enjoin. Id. at 982. In other words, she had to show that removing the film from YouTube would likely eliminate (or at least materially reduce) the risk of death posed by issuance of the fatwa.

The district court did not abuse its discretion by concluding, albeit for reasons different from those I offer here, that Garcia failed to satisfy the irreparable harm prong. The sad but unfortunate truth is that the threat posed to Garcia by issuance of the fatwa will remain whether The Innocence of Muslims is available on YouTube or not. Garcia is subject to the fatwa because of her role in making the film, not because the film is available on YouTube. The film will undoubtedly remain accessible on the Internet for all who wish to see it even if YouTube no longer hosts it. Bottom line: Garcia’s requested injunction won’t change anything about the content of the film or the part,' however limited, she played in its making.

Of course, Garcia’s role in making the film has been completely misunderstood. She never actually uttered the highly offensive words her character speaks in the film. She had no idea that the scenes in which she appeared would later be used as part of an anti-Islam diatribe, and she strongly opposes the film’s message. Correcting these misperceptions might well eliminate or reduce the threat Garcia faces, but she has already taken numerous steps to do just that. She has publicly denounced the film and done everything within her power — including bringing this lawsuit — to disassociate herself from the film’s hateful message. •

The declaration submitted by Garcia’s expert on Islamic and Middle Eastern law — the only evidence she offered that addresses causation directly — candidly describes the tenuous causation theory Garcia relies on. Garcia’s expert did not assert that removing the film from YouTube would likely cause the fatwa against her to be lifted. He instead noted that Garcia’s “public statements condemning the film here have been received in the Muslim world with controversy,” and opined that removing the film from YouTube would cause others to believe that Garcia’s condemnations are sincere: “If she is successful in pulling the content down from the internet, it will likely help her in terms of believability of her message condemning the film and its message.” (Emphasis added.)

In my view, this sparse evidence does not show that removing the film from YouTube would be likely to mitigate the risk of *749death Garcia faces. At most, the expert’s bare assertion establishes that granting the requested injunction will have an incremental but impossible-to-measure effect on Garcia’s credibility. The declaration notably stops short of suggesting that the injunction would have any impact (let alone a likely impact) on the actions of the necessary audience: the cleric who issued the fatwa and those who would be inclined to carry it out. Nor is it obvious why success in getting the district court to order the film’s removal from YouTube would be critical to bolstering the believability of Garcia’s message. Demanding the take-down injunction seems to speak loudly and clearly in its own right about the sincerity of her views on the film.

The district court did not abuse its discretion in concluding that, on this record, Garcia failed to satisfy the irreparable . harm prong. Under our decision in Perfect 10, that alone requires us to affirm the district court’s denial of a preliminary injunction. 653 F.3d at 982. I concur in the judgment for that reason only.

KOZINSKI, Circuit Judge,

dissenting:

Garcia’s dramatic performance met all of the requirements for copyright protection: It was copyrightable subject matter, it was original and it was fixed at the moment it was recorded. So what happened to the copyright? At times, the majority says that Garcia’s performance was not copyrightable at all. And at other times, it seems to say that Garcia just didn’t do enough to gain a copyright in the scene. Either way, the majority is wrong and makes a total mess of copyright law, right here in the Hollywood Circuit. In its haste to take internet service providers off the hook for infringement, the court'today robs performers and other creative talent of rights Congress gave them. I won’t be a party to it.

I

Youssef handed Garcia a script. Garcia performed it. Youssef recorded Garcia’s performance on video and saved the clip. Until today, I understood that the rights in such a performance are determined according to elementary copyright principles: An “original work[] of authorship,” 17 U.S.C. § 102(a), requires only copyrightable subject matter and a “minimal degree of creativity.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). The work is “fixed” when it is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” 17 U.S.C. § 101. And at that moment, the “author or authors of the work” instantly and automatically acquire a copyright interest in it. 17 U.S.C. § 201(a). This isn’t exactly String Theory; more like Copyright 101.

Garcia’s performance met these minimal requirements; the majority doesn’t contend otherwise. The majority nevertheless holds that Garcia’s performance isn’t a “work,” apparently because it was created during the production of a later-assembled film, Innocence of Muslims. Maj. Op. 741-43. But if you say something is not a work, it means that ,it isn’t copyrightable by anyone. Under the majority’s definition of “work,” no one (not even Youssef) can claim a copyright in any part of Garcia’s performance, even though it was recorded several months before Innocence of Muslims was assembled. Instead, Innocence of Muslims — the ultimate film — is the only thing that can be a “work.” If this is what my colleagues are saying, they are casting doubt on the copyrightability of vast swaths of material created during production of a film or other composite work.

*750The implications are daunting. If Garcia’s scene is not a work, then every take of every scene of, say, Lord of the Rings is not a work, and thus not protected by copyright, unless and until the clips become part of the final movie. If some dastardly crew member were to run off with a copy of the Battle of Morannon, the dastard would be free to display it for profit until it was made part of the final movie. And, of course, the take-outs, the alternative scenes, the special effects never used, all of those things would be fair game because none of these things would be “works” under the majority’s definition. And what about a draft chapter of a novel? Is there no copyright in the draft chapter unless it gets included in the published book? Or if part of the draft gets included, is there no copyright in the rest of it?

This is a remarkable proposition, for which the majority provides remarkably little authority. Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir.2000), the only case that the majority cites, says just the opposite. In Aalmuhammed, we considered a claim by a contributor to the movie Malcolm X that he was a joint author of the entire movie. Id. at 1230. Everyone in Aalmuhammed agreed that the relevant “work” was Malcolm X. The only question was whether the contributor was a joint author of that work. We went out of our way to emphasize that joint authorship of a movie is a “different question” from whether a contribution to the movie can be a “work” under section 102(a). Id. at 1233. And we clearly stated that a contribution to a movie can be copyrightable (and thus can be a “work”). Id. at 1232.

The majority’s newfangled definition of “work” is directly contrary to a quarter-century-old precedent that has never been questioned, Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir.1990). There, we held that a company that created special effects footage during film production retained a copyright interest in the footage even though it became part of the film. Id. at 556-58; see also Oddo v. Ries, 743 F.2d 630, 633-34 (9th Cir.1984). The majority tries to distinguish Effects Associates by arguing that the footage there was a “standalone work[ ] that [was] separately fixed and incorporated into a film.” Maj Op. 744 n. 13. But Garcia’s performance was also “separately fixed and incorporated into” Innocence of Muslims. Why then are the seven shots “featuring great gobs of alien yogurt oozing out of a defunct factory” interspersed in The Stuff, 908 F.2d at 559, any more a “standalone work” than Garcia’s performance? Youssef wasn’t required to use any part of Garcia’s performance in the film; he could have sold the video clip to someone else. The clip might not have had much commercial value, but neither did the special effects scenes in Effects Associates. Nothing in the Copyright Act says that special effects scenes are “works” entitled to copyright protection but other scenes are not. And what about scenes that have actors and special effects? Are those scenes entitled to copyright protection (as in Effects Associates ), or are they denied copyright protection like Garcia’s scene?

II

A. The majority also seems to hold that Garcia is not entitled to copyright protection because she is not an author of the recorded scene. According to the majority, Garcia can’t be an author of her own scene because she “played no role in [her performance’s] fixation.” Maj. Op. 744.

But a performer need not operate the recording equipment to be an author of his own performance. See H.R.Rep. No. 94-1476, at 56 (1976); S.Rep. No. 94-473, at 53-54 (1975); see also 1 Nimmer on Copy *751 right § 2.10[A][3] at 2-178.4 to 2-178.5. Without Garcia’s performance, all that existed was a script. To convert the script into a video, there needed to be both an actor physically performing it and filmmakers recording the performance. Both kinds of activities can result in copyrightable expression. See 1 Nimmer on Copyright § 2.09[F] at 2-165 to 2-171 (discussing Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n, 805 F.2d 663 (7th Cir.1986)).1 Garcia’s performance had at least “some minimal degree of creativity” apart from the script and Youssefs direction. See Feist, 499 U.S. at 345, 111 S.Ct. 1282. One’s “[pjersonality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something which is one man’s alone.” Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250, 23 S.Ct. 298, 47 L.Ed. 460 (1903). To dispute this is to claim that Gone With the Wind would be the same movie if Rhett Butler were played by Peter Lorre.

Actors usually sign away their rights when contracting to do a movie, but Garcia didn’t and she wasn’t Youssefs employee. I’d therefore find that Garcia acquired a copyright in her performance the moment it was fixed. When dealing with material created during production of a film or other composite work, the absence of a contract always complicates things. See Effects Associates, 908 F.2d at 556 (“Moviemakers do lunch, not contracts.”). Without a contract the parties are left with whatever rights the copyright law gives them. It’s not our job to take away from performers rights Congress gave them. Did Jimi Hendrix acquire no copyright in the recordings of his concerts because he didn’t run the recorder in addition to playing the guitar? Garcia may not be as talented as Hendrix — who is?— but she’s no less entitled to the protections of the Copyright Act.

B. While the Copyright Office claims that its “longstanding practices” don’t recognize Garcia’s copyright interest, it doesn’t seem that the Register of Copyrights got the memo. The Register was a member of the U.S. delegation that signed the Beijing Treaty on Audiovisual Performances. See U.S. Copyright Office, Annual Report of the Register of Copyrights 8 (2012). The Treaty would recognize Garcia’s rights in her performance. It provides that “performers” have the “exclusive right of authorizing ... the fixation of their unfixed performances,” and “reproduction of their performances fixed in audiovisual fixations, in any manner or form.” World Intellectual Property Organization, Beijing Treaty on Audiovisual Performances, Art. 6(ii), 7 (2012).

The Patent Office, which led the delegation, states that U.S. law is “generally compatible” with the Treaty, as “actors and musicians are considered to be ‘authors’ of their performances providing them with copyright rights.” U.S. Patent & Trademark Office, Background and Summary of the 2012 WIPO Audiovisual Performances Treaty 2 (2012). Although *752the Copyright Office hasn’t issued a statement of compatibility, it’s hard to believe that it would sign on if it believed that the Treaty’s key provisions are inconsistent with U.S. copyright law. In fact, the Copyright Office praised the Treaty as “an important step forward in protecting the performances of television and film actors throughout the world.” U.S. Copyright Office, NewsNet: Beijing Audiovisual Performances Treaty (2012), http:// copyright.gov/newsneV2012/460.html. Except in the Ninth Circuit.

The Copyright Office’s position is thus inconsistent at best. And, in any event, neither the Copyright Office’s reasoning nor the authority it relies on in its letter to Garcia fare any better than the majority’s. The Copyright Office would refuse copyright registration to an actor like Garcia because “an actor or an actress in a motion picture is either a joint author in the entire work or, as most often is the case, is not an author at all by virtue of a work made for hire agreement.” However, Garcia isn’t a joint author of the entire movie and didn’t sign any agreements. She doesn’t fit into either category. Like the majority, the Copyright Office would wish this problem away by refusing registration unless the copyright claimant personally recorded his performance. But nothing in the legislative history relied on by the Copyright Office (which concerned joint authorship of an entire film) suggests that a non-employee doesn’t retain any copyright interest in a video clip , of his acting performance because it’s recorded by the film’s producer. See H.R.Rep. No. 94-1476, at 120.

Ill

The harm the majority fears would result from recognizing performers’ copyright claims in their fixed, original expression is overstated. The vast majority of copyright claims by performers in their contributions are defeated by a contract and the work for hire doctrine. See 1 Nimmer on Copyright § 6.07[B][2] at 6-28 to 6-29; 2 William F. Patry, Patry on Copyright § 5:17 (2010). And most of the performers that fall through the cracks would be found to have given an implied license to the film’s producers to use the contribution in the ultimate film. See Effects Associates, 908 F.2d at 558. Very few performers would be left to sue at all, and the ones that remain would have to find suing worth their while. They wouldn’t be able to claim the valuable rights of joint authorship of the movie, such as an undivided share in the movie or the right to exploit the movie for themselves. See 1 Nimmer on Copyright § 6.08 at 6-34 to 636. Rather, their copyright claims would be limited to the original expression they created. See Aalmuhammed, 202 F.3d at 1232; Effects Associates, 908 F.2d at 559. Which is why filmmaking hasn’t ground to a halt even though we held a quarter-century ago that “where a non-employee contributes to a book or movie, ... the exclusive rights of copyright ownership vest in the creator of the contribution, unless there is a written agreement to the contrary.” Effects Associates, 908 F.2d at 557.

Regardless, the Supreme Court has reminded us that “speculation about future harms is no basis for [courts] to shrink authorial rights.” N.Y. Times Co. v. Tasini, 533 U.S. 483, 505-06, 121 S.Ct. 2381, 150 L.Ed.2d 500 (2001). In Tasini freelance authors argued that the inclusion in databases of their articles that originally appeared in periodicals infringed their copyrights in the works. Id. at 487, 121 S.Ct. 2381. Publishers warned that “ ‘devastating’ consequences,” including massive damages awards, would result if the Court were to hold for the freelancers. Id. at 504, 121 S.Ct. 2381. The Court nonethe*753less held for the freelancers, turning back the parade of horribles deployed by the publishers. The Court explained that there are “numerous models for distributing copyrighted works and remunerating authors for their distribution.” Id. at 504-05, 121 S.Ct. 2381. Tasini is a powerful reminder that movie producers, publishers and distributors will always claim that the sky is falling in cases that might recognize an individual contributor’s copyright interest in material he created.2 They will always say, as Google says here, that holding in the contributor’s favor will make “Swiss cheese” of copyrights. Maj. Op. 742.

But under our copyright law, the creators of original, copyrightable material automatically acquire a copyright interest in the material as soon as it is fixed. There’s no exception for material created during production of a film or other composite work. When modern works, such as films or plays, are produced, contributors will often create separate, copyrightable works as part of the process. Our copyright law says that the copyright interests in this material vest initially with its creators, who will then have leverage to obtain compensation by contract. The answer to the “Swiss cheese” bugbear isn’t for courts to limit who can acquire copyrights in order to make life simpler for producers and internet service providers. It’s for the parties to allocate their rights by contract. See Effects Associates, 908 F.2d at 557. Google makes oodles of dollars by enabling its users to upload almost any video without pre-screening for potential copyright infringement. Google’s business model, like that of the database owners in Tasini, assumes the risk that a user’s upload infringes someone else’s copyright, and sthat it may have to take corrective action if a copyright holder comes forward.

The majority credits the doomsday claims at the expense of property rights that Congress created. Its new standard artificially shrinks authorial rights by holding that a performer must personally record his creative expression in order to retain any copyright interest in it, speculating that a contrary rule might curb filmmaking and burden.the internet. But our injunction has been in place for over a year; reports of the internet’s demise have been greatly exaggerated. For the reaT sons stated here and in the majority opinion in Garcia v. Google, Inc., 766 F.3d 929, 933-36 (9th Cir.2014), I conclude that Garcia’s copyright claim is likely to succeed. I’d also find that Garcia has made an ample showing of irreparable harm. It’s her life that’s at stake. See id. at 938-39.

Mr. Justice Miller

delivered the opinion of the court.

This is a writ of error to the Circuit Court for the Southern District of New York.

Plaintiff is a lithographer and defendant a photographer, with large business in those lines in the city of New York. .

The suit was commenced by an action at law in which Sarony was plaintiff and the lithographic company was defendant, the plaintiff charging the defendant with violating his copyright in regard to a photograph, the title of which is “ Oscar Wilde No. 18:” A jury being waived, the court made a finding of facts on which a judgment in.favor of the plaintiff was rendered for the sum of $600 for the plates and 85,000 copies sold and exposed to sale, and $10 for copies found in his possession, as penalties under section 4965 of the Revised Statutes.

Among the findings of fact made by the court the following presents the principal question raised by the assignment of errors in the case :

“ 3. That the plaintiff about the month of January, 1882, under an agreement with Oscar Wilde, became and was the author, inventor, designer, and proprietor of the photograph in suit, the title of which is ‘Oscar Wilde No. 18,’ being the number used to designate this particular photograph and of the negative thereof; that the same is' a useful, new, harmonious, characteristic, and graceful picture, and that said plaintiff made the same at his place of business in said city of New York, and within the United States, entirely from his own *55original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by the plaintiff, he produced the picture in suit, Exhibit A, April 14th, 1882, and that the terms ‘author,’ ‘inventor,’ and ‘designer,’ as used in the art of photography and in the complaint, mean the person Avho so produced the photograph.”

Other findings leave no doubt that plaintiff had taken all the steps required by the act of Congress to obtain copyright of this photograph, and section 4952 names photographs among other things for which the author, inventor, or designer may obtain copyright, Avhich is to secure him the sole privilege of reprinting, publishing, .copying and vending the same. That defendant is liable under that section and section 4965 there can be no question, if those sections are valid as they relate to photographs.

Accordingly, the two assignments of error in this court by plaintiff in error, are:

1. That the court below, decided that Congress had and has the constitutional right to protect photographs and negatives thereof by copyright.

The second assignment related to the sufficiency of the. Avords “ Copyright, 1882, by N. Sarony,” in the photographs, as a notice of the copyright of Napoleon Sarony under the act of Congress on that subject.

With regard to this latter question, it is enough to say, that the object of the statute is to give notice of the copyright to the public, by placing upon each copy, in some visible shape, the name of the author, the existence of the claim of exclusive right, and the date at which this right Avas obtained.

This notice is sufficiently given by the words “ Copyright, • 1882, by N. Sarony,” found on each copy of the photograph. It clearly shoAvs that a copyright is asserted, the date of Avhich is 1882, and if the name Sarony alone Avas used, it would be a *56sufficient designation of the author until it is shown that there is some other Sarony.

When, in addition to this, the initial letter of the Christian name Napoleon is also given, the notice is complete.

The constitutional question is not free from difficulty:

The'eighth section of the first article of the Constitution is the great repository of the powers of Congress, and by the eighth clause of that section Congress is authorized:

“ To promote the progress of science and useful arts, by securing, for limited times to authors and inventors, the exclusive right to their respective writings and discoveries.”

The argument here is, that a photograph is not a writing nor the production of an author. Under the acts of Congress designed to give effect to this section, the persons who are to be benefited are divided into two classes, authors and inventors. The monopoly which is granted to the former is called a copyright, that given to the latter, letters patent, or, in the familiar language of the present day, patent right.

We have, then, copyright and .patent right, and it is the first of these under which plaintiff asserts a claim for relief.

It is insisted in argument, that a photograph being a reproduction on paper of the exact features of some natural object or of some person, is not a writing of which the producer is the author.

Section 1952 of the Revised Statutes places photographs in the same class as things which may be copyrighted with “ books, maps, charts, dramatic or musical compositions, engravings, cuts, prints, paintings, drawings, statues, statuary, and models or designs intended to be perfected as works of the fine arts.” “ According to the practice of legislation in England and America,” says Judge Bouvier, 2 Law Dictionary, 303, “ the copyright is confined to the exclusive right secured to the author or proprietor .of a Avriting or draAving Avhich may be multiplied by the arts of printing in any of its branches.”

The first Congress of the United States, sitting immediately after the formation of the Constitution, enacted that the “ author or authors of any map, chart, book or books, being a *57'citizen or resident of the United States, shall have the sole right and liberty of printing, reprinting, publishing and vending the same for the period of fourteen years from the recording of the title' thereof in the clerk’s office, as afterwards directed.” 1 Stat. 124, 1.

This statute not only makes maps-and charts subjects of copyright, but mentions them before books in the order of designation. . The second section of an act to amend this act, approved April 29, 1802, 2 Stat. 171, enacts that from the first day of January thereafter, he who shall invent and design, engrave, etch or work, or from his own works shall cause to be designed and engraved, etched or worked, any historical or other print or prints shall have the same exclusive right for the term of fourteen years from recording the title thereof as prescribed by law.

By the first section of the act of February 3d, 1831,. 4 Stat. 436, entitled an act to amend the several acts respecting copyright, musical compositions and cuts, in connection with prints and engravings, are added, and the period of protection is ex: tended to twenty-eight years. The caption or title, of this act uses the word copyright for the first time in the legislation of Congress.

The construction placed upon the Constitution by the first act of 1790, and the act of 1802, by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight,, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive.

Unless, therefore, photographs can be distinguished in the classification on this point from the maps, charts, designs, engravings,' etchings, cuts, and other prints, it is difficult to see why Congress cannot make them the subject of copyright as well as the others.

These statutes certainly answer the objection that books only, or writing in the limited sense of a book and its author, are within the constitutional provision. Both these words are susceptible of a more enlarged definition than this. An author in *58that sense is “ he to whom anything owes its origin; originator; maker; one who completes' a work of science or literature.” Worcester. So, also, no one would now claim that the word writing in this clause of the Constitution, though the only word used as to subjects in regard to which authors are to be secured, is limited to the. actual script of the author, and excludes books and all other-printed matter. By writings in that clause is meant the literary productions of those authors, and Congress very properly has declared these to include all forms of writing, printing, engraving, etching, &c., by which the ideas in the mind of the author are given visible expression. The only reason why photographs were not included in the extended list in the act of 1802 is probably that they did not exist, as photography .as an art was then unknown, and the scientific principle on which it rests, and the chemicals and machinery by which it is operated, have all been discovered long since that statute was enacted.

Nor is it to be supposed that the framers of the Constitution did not understand the nature of copyright and the objects to which it was commonly applied, for copyright, as the’exclusive right of a man to the production of his own genius or intellect, existed in England at that time, and the contest in the English courts, finally decided by a very close vote in the House of Lords, whether the statute of 8 Anne, chap. 19, which authorized copyright for a limited time, was a restraint to that extent on the common law or not, was then recent. It had. attracted much attention, as the judgment of the King’s Bench, delivered by Lord Mansfield, holding it was not such a restraint, in Miller v. Taylor, 4 Burrows, 2303, decided in 1769, was overruled on appeal in the House of Lords in 1774. Ibid. 2408. In this and other cases the whole question of the exclusive right to literary and intellectual productions had been freely discussed.

Ve entertain no doubt that the Constitution is broad enough to cover an act authorizing copyright of photographs, so far as they are representatives of original intellectual conceptions of the author.

But it is said that an engraving, a painting, a print, does em*59body the intellectual conception of its author, in which there is novelty, invention, originality, and therefore comes within the purpose of the Constitution in securing its exclusive use or sale to its author, while the photograph is the mere mechanical reproduction of the physical features or outlines of some object animate or inanimate, and involves no originality of thought or any novelty in the intellectual operation connected with its visible reproduction in shape of a picture. That while the effect of light on the prepared plate may have been a discovery in the production of these pictures, and patents could properly be obtained for the combination of the chemicals, for their application to the paper or other surface, for all the machinery by which the light reflected from the object was thrown on the prepared plate, and for all the improvements in this machinery, and in the materials, the remainder of the process is merely mechanical, with no place for novelty, invention or originality. It is simply the manual operation, by the use of these instruments and preparations, of transferring to the plate the visible representation of some existing object, the accuracy of this representation being its highest merit.

■This may be true in regard to the ordinary production of a photograph, and, further, that in such case a copyright is no protection. On the question as thus stated we decide nothing.

In regard, however, to the kindred subject of patents for invention, they cannot by law be issued to the inventor until the novelty, the utility, and the actual discovery or invention by the claimant have been established by proof before the Commissioner of Patents; and when he has secured such a patent, and undertakes to obtain redress for a violation of his right in a court of law, the question of invention, of novelty, of originality, is always open to examination. Our copyright system has no such provision for previous examination by a proper tribunal as to the originality of the book, map, or other matter offered for copyright. A deposit of two copies of the article or work with the Librarian of Congress, with the name of the author and its title page, is all that is necessary to secure a copyright. It is, therefore, much more important that when the supposed author sues for a violation of his copyright, the *60existence of those facts of originality, of intellectual production, of thought, and conception on the part of the author should be proved, than in the case of a patent right.

In the case before us we think this has been done.

The third finding of facts says, in regard to the photograph in question, that it is a “ useful, new, harmonious, characteristic, and graceful picture, and that plaintiff made the same . . . entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit.”

These findings, we think, show this photograph to be an original work of art, the product of plaintiff’s intellectual invention, of which plaintiff is the author, and of a class of inventions for which the Constitution intended that Congress should secure to him the exclusive right to use, publish and sell, as it has done by section 4952 of the Revised Statutes.

The question here presented is one of first impression under our Constitution, but an instructive case of the same class, is that of Nottage v. Jackson, 11 Q. B. D. 627, decided in that court on appeal, August, 1883.

The first section of the act of 25 and 26 Victoria, chap. 68, authorizes the author of a photograph, upon making registry of it under the copyright act of 18S2, to have a monopoly of its reproduction and multiplication during the life of the author.

The plaintiffs in that case described themselves as the authors of the photograph which was pirated, in the registration of it. It appeared that they had arranged with the captain of the Australian cricketers to take a photograph of the whole team in a group; and they sent one of the artists in their employ from London to some country town to do it.

The question in the case was whether the plaintiffs, who owned the establishment in London, where the' photographs *61were made from, the negative and were sold, and who had the negative taken by one of. their men, were the authors, or the man who, for their benefit, took the negative. It was held that the latter was the author, and the action failed, because plaintiffs had described themselves as authors.

Brett, M. R., said, in regard to who ivas the author: “ The nearest I can come to, is that it is the person who effectively is as near as he can be, the cause, of the picture which is produced, that is, the person who has superintended the arrangement, who has actually formed the picture by putting the persons in position, and arranging the place where the people are to be— the man who-.is the effective cause of that.”

Lord Justice Cotton said: “In my opinion, ‘author’ in volves originating, making, producing, as the inventive or master mind, the thing which is to be protected, whether it be a drawing, or a painting, or a photograph; ” and Lord Justice Bowen says that photography is to be treated for the purposes of the act as an art, and the author is the man who really represents, creates, or gives effect to the idea, fancy, or imagination.

The appeal of plaintiffs from the original judgment against ' them was accordingly dismissed.

These views of the nature of authorship and of originality,' intellectual creation, and right to protection confirm what we have already said.

The judgment of the Circuit Court is accordingly 'affirmed. r

TOWNSEND, District Judge.

This is a bill in equity for an injunction and accounting by reason of an alleged infringement of complainant’s copyright in a photograph of the actress Julia Marlowe.

The claim that complainant neglected to comply with the statutory requirements is disproved bv'’the evidence. It appears that on January ■ 6, 1888, complainant caused to be sent to the librarian of congress the printed title, and on February 22d, and within 10 days of publication, he caused two finished copies to be sent to the librarian of congress. Both of these acts were duly certified to by the librarian of congress. It is not necessary that the copies should be mailed after publication; if mailed before, they are mailed within 10 days of publication. Chapman v. Ferry, 18 Fed. Rep. 541; Belford v. Scribner, 144 U. S. 505, 12 Sup. Ct. Rep. 734.

The defendants deny that the photograph represents any original, intellectual conceptions of the complainant.

The complainant is a photographist. On December 27, 1887, *33Miss Marlowe came to Ms studio, bringing several different costumes; and the complainant • took photographs of her in some 20 or 30 different positions, representing different characters assumed by her on the stage. Among them was the photograph in suit, which represented the actress in the character of Parthenia, in the play of “Ingomar, the Barbarian.” Complainant testified as follows:

“I tried to produce an ideal portrait of the Greek maiden of the play, and considered that the main sentiment embodied in the character is a combination of simplicity, innocence, and courage. * * * I posed Miss Marlowe as shown in the photograph itself, arranged the illumination and the hack-ground, as shown in the picture itself, and secured the expression therein shown, and, outside of that, did tlie mechanical work of attending to the camera, focusing, and exposing the image.”

Complainant further explained, at length, the methods employed by him in such cases, to make the subject so forget his surroundings as to mentally assume the part or character to be represented in the picture; and the arrangement of curtains, screens, and headlights, so as to bring out expression and character.

The defendants claim that a photographist is a mere mechanic, and that it is absurd to suppose that complainant could have suggested to a trained actress like Miss Marlowe either costume, facial expression, or pose. A gas man at the Bijou Theater testified that he had seen her there in the exact pose represented in the photograph. The costume was the one ordinarily worn by the actress when playing this part. The mode of dressing the hair merely followed the fashion of the day. In another photograph, taken during the year in which complainant’s photograph was taken, Miss Marlowe wore the same gown, and assumed a position somewhat similar to that shown in complainant’s photograph, except that, the arms were not raised. But I am unable to assent to the claims of defendants, for the following reasons: An examination of the photograph shows that it is the work of an artist. The question is whether the artist was Miss Marlowe, or complainant. How far the artistic contributions are to be attributed to the talent of Miss Marlowe, it is impossible to say. The testimony of complainant as to his share in producing the result is not denied. He was an artist before he became a photographist. He had had a large experience in taking photographs, and on this occasion he appears to have availed himself thereof, and by the use of lights and shadows, and various devices, to have produced a most satisfactory result.

There is another circumstance which points to this particular pose as the work of complainant.' It will be noticed that the position assumed by Miss Marlowe is a side view. It is one where the direction of the head and eyes is such that she could not have judged, by herself, how far to- turn the body, and raise the hands, or how to incline the head, so that the lights and shadows might best reveal the beauties of face and figure. It is only necessary to examine the bundle of 15 photographs introduced by defendants *34to show that the pose of complainant’s photograph was common among actresses, in order to see how strikingly poses, mechanically alike, may artistically differ.

I do not find in defendant’s exhibit of a photograph of Miss Marlowe anything which refutes complainant’s claim of originality in his photograph. Each is the side view of the same woman, in the same gown. But in one, a pretty woman is standing for her picture; in the other, she has lost her personality in the character she has assumed, as interpreted in the pose chosen by the complainant. It seems to me only necessary to compare the two photographs in order to detect those differences which, not to be expressed in words, yet, taken together, serve to show that the one is in no sense a counterpart of the other.

It does not seem any more absurd, that Falk should have posed Miss Marlowe than that Sarony should have posed Oscar Wilde. The notoriety of the latter depended largely upon the costumes designed, and poses assumed, by him. But under the finding of facts in Lithographic Co. v. Sarony, 111 U. S. 60, 4 Sup. Ct. Rep. 279, the court held the Wilde photograph to be an original work of art, the product of plaintiff’s intellectual invention, and entitled to protection under the copyright act. A comparison of the two cases shows that what Sarony did, complainant did. In the Sarony. Case it was not found that the photographist originated the costume or the character. It was, as I recollect it, a photograph of a character in one of the Gilbert & Sullivan operas. But the photograph was Sarony’s mental conception of the character, produced, as in this case, by the use of lights and shades, and various accessories. On these grounds, and because- a useful, new, harmonious, characteristic, picture was the result, the court held plaintiff to be the author thereof. The court, in the Sarony Case, referring to- the decision in Nottage v. Jackson, 11 Q. B. Div. 627, says:

“Lord Justice Cotton said: ‘In my opinion, “author” involves originating, malting, producing, as the inventive or master mind, the thing which is to he protected, whether it he a drawing or a painting or a photograph.’ And Lord Justice Bowen says that photography is to he treated, for the purposes of the act, as an art, and the author is the man who really represents, creates, or gives effect to the idea, fancy, or imagination. * * * These views of the nature of authorship, and of originality, intellectual creation, and right to protection, confirm what we have already said.”

Aud in Falk v. Engraving Co., 48 Fed. Rep. 264, recently affirmed by tbe United States circuit court of appeals in this circuit, the court, upon facts substantially the same as in this case, sustained the copyright. 54 Fed. Rep. 890.

In the light of these decisions, it seems to me established that in the present case the complainant was the author of an original work of art, the product of. his intellectual invention.

Defendants deny that they have copied complainant’s photograph, or any part thereof. There is a sharp conflict of testimony as to whether Mills, one of the defendants, admitted that their lithograph was a copy of complainant’s photograph, and attempted *35to settle with complainant for infringement. If it were necessary to decade lilis question, 1 should consider, in view of the - general character of the testimony of Mills, and the contradictions therein, that the admission was sufficiently proved. But the real question is not one as to admission of fact, but whether the lithograph is an illegal appropriation of the substantial parts of the photograph. In such a case the inquiry always is whether the alleged infringer has appropriated the results of the original conception of the artist. It is not a question of quantity, hut of quality and value; not whether the part appropriated is a literal copy of the original production, hut whether it is a substantial and material part. The question is, to what is the artist or author entitled as his conception, and what of such original conception has been appropriated? Gray v. Russell, 1 Story, 11; Folsom v. Marsh, 2 Story, 115; Drone, Copyr. 410. The forcible argument of counsel for defendants upon this point proceeds upon the theory that the idea or conception of the original artist may be followed and used by another, provided he clothes such idea or conception in different language or form. He claims that the lithographer had a perfect right to use the photograph for study, suggestion, and even as a model, in developing Ids own ideas, and that, as he had merely taken the conceptions of the other, and clothed them in his own form and expression, his work was original. Copying, he says, involves, not only taking another’s ideas or conceptions, but also their expression.

Tin; question presented here is whether the defendants have so far copied the design of complainant as to appropriate his manifestation of his conception, or a substantial part thereof. The lithograph is not strictly a copy of the photograph. It differs from it in various ways. Borne 40 differences have been suggested by experts introduced by defendants. Expert testimony in such a case has no greater weight than expert testimony upon the question of infringement. “The test of sameness is determined by the eye of the ordinary observer.” Gorham Co. v. White, 14 Wall. 528; Ripley v. Glass Co., 49 Fed. Rep. 927. But the testimony is helpful in suggesting and loca ring the differences, and it enables us to disc-over their general character; and it seems to me that, taken together, they show mere differences of .detail. The lithograph lacks the artistic excellencies of the photograph, but I cannot understand how the fact that an attempted appropriation has been inartistieally accomplished can help the infringer. If a painter originates and copyrights a work of art, can a chromo manufacturer copy the design, to advertise the wares of a merchant, and defend against an addon on the ground that the mechanic has not caught the spirit of the artist, or mixed the pigments in the same (ones of color? Is the sculptor compelled to see his life Avork in marble appropriated, and modeled in soap or sugar, because, forsooth, the “dimples are lacking” from the imitation, or “(he one is three or four times larger than the other?” And yet these are among the reasons assigned by the experts for the *36defendants why there is no similarity between tbe pbotograpb and litbograpb.

In tbe determination of tbe question as to tbe nature and extent of the similarity which must be shown between tbe original and tbe alleged copy, in order to constitute infringement, we are guided by several recent decisions. Judge Goxe, in Untermeyer v. Freund, 37 Fed. Rep. 343, — a design patent case, — says:

“The policy which protects a design, is akin to that which protects the work of an artist, a sculptor, or a photographist, by copyright It requires hut little invention » * * to paint a pleasing picture, and yet the picture is protected, because it exhibits the personal characteristics of the artist, and because it is his. So with a design. If it presents a different impression upon the eye from anything which precedes it;, if it proves to be pleasing, attractive, and popular, and does not show a wide departure from other designs, — its use will be protected.”

And, in tbe recent case of this complainant v. Lithographing Co., 48 Fed. Rep. 678, where Judge Wheeler sustained tbe copyright of a pbotograpb of a woman and child, be said:

“The defendants * * * have used plaintiff’s production as a guide for making others, and have thereby substantially copied it as he produced it, and infringed upon his exclusive right of copying it.”

In Turner v. Robinson, 10 Ir. Ch. 121, 510, tbe defendant was charged with piracy, in having copied a painting representing the death of Cbatterton. He denied direct copying, but admitted having seen tbe original while on exhibition, and claimed that be bad made bis photographs from an arrangement of figures, objects, and scenery, which be bad prepared in bis own gallery. The court said:

“The stereoscopic slides are not photographs taken directly from the picture in the ordinary mode of copying; but they are photographic pictures of a model itself copied from, and accurately imitating, in its design and outline, the petitioner’s painting. It is through this medium that the photograph has been made a perfect representation of the painting. Thus the object contrived and achieved, and the consequent injury, are the very same as if the copy had, in breach of confidence, been made on the view, and by the eye; and no court of justice can admit that an act illegal in itself can be justified by -a novel or circuitous mode of effecting it. If it is illegal, so must the contrivance be, by means of which it was effected.” Drone. Gonvr. 108.

BeariD.g in mind tbe general rule as tbus interpreted, let us compare tbe ‘pbotograpb witb tbe litbograpb. Imperfect and comparatively lifeless as tbe litbograpb is, yet it needs no expert to sbow that, although varying somewdiat in design, it is a copy of tbe conception of complainant. Tbe angle of tbe bead, tbe clasping of tbe arms, tbe interlaced fingers, and tbe general expression and pose, irresistibly suggest and recall tbe pbotograpb. Defendants claim that tbe value of tbe photograph has not been impaired by tbe publication of tbe litbograpb, and there is no infringement, because tbe pbotograpb and litbograpb are not rivals, and are not in competition in any way. This fact does not affect tbe question of infringement, but only tbe measure of damages. Falk v. Howell, 37 Fed. Rep. 202. Tbe measure of complainant’s rights is not limited by tbe mere fact that tbe lithograph would not dis*37place the photograph in the market. He is entitled to any lawful use of his property, whereby he may get a profit out of it. It is not a question of the extent of damages, hut of violation of rights. I have not overlooked the suggestions of counsel for the defendants that the application of the copyright law to cases like the present may lead to abuse, and he productive of injustice. But this court must administer the law as it finds it. Under the rule established in the Sarony Case, the complainant must he held to he the author of the conceptions expressed in the photograph. The defendants have appropriated a substantial portion of such conceptions.

Let there be a decree for an injunction and an accounting.

JACOBS, Circuit Judge:

*173In this copyright infringement suit, defendant TVEyes, Inc. ("TVEyes") offers a service that enables its clients to easily locate and view segments of televised video programming that are responsive to the clients' interests. It does so by continuously recording vast quantities of television programming, compiling the recorded broadcasts into a database that is text-searchable (based primarily on the closed-captioned text copied from the broadcasts), and allowing its clients to search for and watch (up to) ten-minute video clips that *174mention terms of interest to the clients.1 Plaintiff Fox News Network, LLC ("Fox"), which has sued TVEyes in the United States District Court for the Southern District of New York, does not challenge the creation of the text-searchable database but alleges that TVEyes infringed Fox's copyrights by re-distributing Fox's copied audiovisual content, thereby enabling TVEyes's clients to access that content without Fox's permission. The principal question on appeal is whether TVEyes's enabling of its clients to watch Fox's programming is protected by the doctrine of fair use. See 17 U.S.C. § 107.

The district court held that fewer than all of the functions of TVEyes's service constitute a fair use. Specifically, the district court deemed a fair use the functions enabling clients of TVEyes to search for videos by term, to watch the resulting videos, and to archive the videos on the TVEyes servers; but the court held that certain other functions were not a fair use, such as those enabling TVEyes's clients to download videos to their computers, to freely e-mail videos to others, or to watch videos after searching for them by date, time, and channel (rather than by keyword). The district court therefore dismissed Fox's challenge to important functions of TVEyes's service, but also held that TVEyes was liable to Fox for copyright infringement on account of other functions of that service. A permanent injunction limited various aspects of TVEyes's service.2

This appeal shares features with our decision in Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) (" Google Books"). That case held that Google's creation of a text-searchable database of millions of books (including books under copyright) was a fair use because Google's service was "transformative" and because integral features protected the rights of copyright holders. However, we cautioned that the case "test[ed] the boundaries of fair use." Google Books, 804 F.3d at 206. We conclude that defendant TVEyes has exceeded those bounds.

TVEyes's re-distribution of Fox's audiovisual content serves a transformative purpose in that it enables TVEyes's clients to isolate from the vast corpus of Fox's content the material that is responsive to their interests, and to access that material in a convenient manner. But because that re-distribution makes available virtually all of Fox's copyrighted audiovisual content-including all of the Fox content that TVEyes's clients wish to see and hear-and because it deprives Fox of revenue that properly belongs to the copyright holder, TVEyes has failed to show that the product it offers to its clients can be justified as a fair use.

Accordingly, we reverse the order of the district court to the extent it held that some of the challenged TVEyes functions constituted a fair use. We affirm the order to the extent that it denied TVEyes's request for additional relief. Furthermore, because the district court's issuance of an injunction was premised on the incorrect conclusion that much of what TVEyes offered was a fair use, we remand for the district court to revise the injunction in light of this opinion.

I

TVEyes is a for-profit media company. It offers a service that allows its clients to *175efficiently sort through vast quantities of television content in order to find clips that discuss items of interest to them. For example, a client in marketing or public relations interested in how a particular product is faring in the media can use the TVEyes service to find, watch, and share clips of recent television broadcasts that mention that product.

The service works this way. TVEyes records essentially all television broadcasts as they happen, drawing from more than 1,400 channels, recording 24 hours a day, every day. By copying the closed-captioned text that accompanies the content it records (and utilizing speech-to-text software when necessary), TVEyes creates a text-searchable transcript of the words spoken in each video. The videos and transcripts are consolidated into a database. A client inputs a search term and gets a list of video clips that mention the term. A click on a thumbnail image of a clip plays the video, beginning fourteen seconds before the search term was spoken, and displays a segment of the transcript with the search term highlighted. The parties dispute the quality of the clips. Fox contends that the clips are high definition; TVEyes contends that the clips are grainier than the original broadcasts. The clips can be played for no more than ten minutes, but a user can play an unlimited number of clips. To prevent clients from watching entire programs, TVEyes (during the course of this litigation) implemented a device that is claimed to prevent clients from viewing consecutive segments. The parties dispute whether this measure is effective.

TVEyes's service has ancillary functions. A TVEyes client may "archive" videos permanently on the TVEyes servers and may download videos directly to the client's computer. These services are useful because TVEyes otherwise deletes captured content after thirty-two days. Clients can also email the clips for viewing by others, including those who are not TVEyes clients. And clients can search for videos by date, time, and channel (rather than by keyword). The parties dispute whether clients can watch live broadcasts on TVEyes.

A TVEyes subscription costs approximately $500 per month, is available for business and professional use, and is not offered to private consumers for personal use. Clients include journalists, government and political organizations, law enforcement, the military, for-profit companies, and non-profits.

TVEyes asserts that it restricts its clients' use of its content in various ways. For example, clients are required to sign a contract that limits their use of clips to "internal purposes only" and are warned upon downloading a clip that it is to be used for only "internal review, analysis or research." Fox contends that these safeguards are ineffective and disputes the assertion by TVEyes that its service is primarily used for "internal" research and analysis.

Fox claims that at some point TVEyes unsuccessfully approached it to procure a license to use Fox programming. Fox demanded that TVEyes stop using its programming; when TVEyes refused, litigation ensued. The lawsuit focuses on nineteen copyrighted Fox broadcasts. The legal question is whether TVEyes has a "fair use" defense to Fox's copyright infringement claims. 17 U.S.C. § 107.

II

The Copyright Act provides:

[T]he fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching ..., scholarship, or research, is not an infringement *176of 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.

Id.

In fair use litigation, courts undertake a "case-by-case analysis" in which each factor is considered, "and the results [are] weighed together, in light of the purposes of copyright." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577-78, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994). The factors are non-exclusive, but consideration of each is mandatory.3 Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 81 (2d Cir. 2014). Some of the factors are more important than others, with the fourth (market impact) being "the single most important element." Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). Fair use is an affirmative defense, so TVEyes bears the burden of proving it. Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913, 918 (2d Cir. 1994).

It is useful to analyze separately distinct functions of the secondary use (i.e., the use by TVEyes of Fox's copyrighted material), considering whether each independent function is a fair use. See Google Books, 804 F.3d at 216-18. TVEyes has two core offerings: the "Search function" and the "Watch function." The Search function allows clients to identify videos that contain keywords of interest. The Watch function allows TVEyes clients to view up to ten-minute, unaltered video clips of copyrighted content. Fox does not challenge the Search function on appeal. Fox's challenge is to the Watch function, and we determine that its inclusion renders TVEyes's package of services unprotected by the fair use doctrine. That conclusion subsumes and obviates consideration of certain functions that are subsidiary to the Watch function, such as archiving, downloading, and emailing the video clips.

Turning to the Watch function, we next consider each of the four factors listed in § 107.

A

In considering the first statutory factor-the "purpose and character" of the secondary use, 17 U.S.C. § 107(1) -the primary inquiry is whether the use "communicates something new and different from the original or [otherwise] expands its utility," that is, whether the use is "transformative." Google Books, 804 F.3d at 214. To be transformative, a use must "do[ ] something more than repackage or republish the original copyrighted work"; it must " 'add[ ] something new, with a further purpose or different character, altering the first with new expression, meaning or message....' " Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 96 (2d Cir. 2014) (quoting *177Campbell, 510 U.S. at 579, 114 S.Ct. 1164 ). "Although ... transformative use is not absolutely necessary for a finding of fair use, ... [transformative] works ... lie at the heart of the fair use doctrine," Campbell, 510 U.S. at 579, 114 S.Ct. 1164, and "a use of copyrighted material that 'merely repackages or republishes the original' is unlikely to be deemed a fair use," Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998) (quoting Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990) ).

Precedent is helpful. Both parties rely most heavily on Google Books, which provides the starting point for analysis.

In Google Books, a consortium of libraries collaborated to make digital copies of millions of books, many of them under copyright. Google pooled these digital copies into a text-searchable database. 804 F.3d at 207. Anyone could search the database free. When a user entered a search term, Google returned a list of books that included the term, and, for each responsive book, Google provided a few "snippets" that contained the term. Id.

We held that Google's copying served a transformative purpose because it created a text-searchable database that "communicate[d] something new and different from the original." Id. at 214. "[T]he result of a word search is different in purpose, character, expression, meaning, and message from the page (and the book) from which it is drawn." Id. at 217 (quoting HathiTrust, 755 F.3d at 97 ).

We also held that the "snippet view" of unaltered, copyrighted text "add[ed] important value to the basic transformative search function" by allowing users to verify that the list of books returned by the database was responsive to the user's search. Id. Thus, a user searching for the term "Hindenburg" could infer from snippets whether the book was referencing the Weimar president or the exploded zeppelin. See id. at 217-18.

TVEyes's copying of Fox's content for use in the Watch function is similarly transformative insofar as it enables users to isolate, from an ocean of programming, material that is responsive to their interests and needs, and to access that material with targeted precision. It enables nearly instant access to a subset of material-and to information about the material-that would otherwise be irretrievable, or else retrievable only through prohibitively inconvenient or inefficient means.

Sony Corporation of America vs. Universal City Studios, Inc. is instructive. See 464 U.S. 417, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). In Sony, a television customer, who (by virtue of owning a television set) had acquired authorization to watch a program when it was broadcast, recorded it in order to watch it instead at a later, more convenient time. That was held to be a fair use. While Sony was decided before "transformative" became a term of art, the apparent reasoning was that a secondary use may be a fair use if it utilizes technology to achieve the transformative purpose of improving the efficiency of delivering content without unreasonably encroaching on the commercial entitlements of the rights holder.

The Watch function certainly qualifies as technology that achieves the transformative purpose of enhancing efficiency: it enables TVEyes's clients to view all of the Fox programming that (over the prior thirty-two days) discussed a particular topic of interest to them, without having to monitor thirty-two days of programming in order to catch each relevant discussion; and it eliminates the clients' need even to view entire programs, because the ten most relevant minutes are presented to them. Much like the television customer in *178Sony, TVEyes clients can view the Fox programming they want at a time and place that is convenient to them, rather than at the time and place of broadcast. For these reasons, TVEyes's Watch function is at least somewhat transformative.4

* * *

The first statutory factor also implicates considerations distinct from whether the secondary use is transformative. In particular, Fox argues that the "commercial nature" of TVEyes's copying (its sale of access to Fox's content) weighs against a finding of fair use. 17 U.S.C. § 107(1).

The commercial nature of a secondary use weighs against a finding of fair use. See Campbell, 510 U.S. at 585, 114 S.Ct. 1164. And it does so especially when, as here, the transformative character of the secondary use is modest. See id. at 579, 114 S.Ct. 1164 ("[T]he [less] transformative the new work, the [more] will be the significance of other factors, like commercialism...."). The Watch function has only a modest transformative character because, notwithstanding the transformative manner in which it delivers content, it essentially republishes that content unaltered from its original form, with no "new expression, meaning or message." HathiTrust, 755 F.3d at 96 (quoting Campbell, 510 U.S. at 579, 114 S.Ct. 1164 ); cf. Kirkwood, 150 F.3d at 106 (service that transmits unaltered radio broadcasts in real time over telephone lines is not transformative); Video Pipeline, Inc. v. Buena Vista Home Entm't, Inc., 342 F.3d 191, 199-200 (3d Cir. 2003) (service that streams short previews of movies without commentary is not transformative). The clients of TVEyes use Fox's news broadcasts for the same purpose that authorized Fox viewers use those broadcasts-the purpose of learning the information reported.

The first statutory factor therefore favors TVEyes, albeit slightly.

B

The second statutory factor is "the nature of the copyrighted work." 17 U.S.C. § 107(2). This factor "has rarely played a significant role in the determination of a fair use dispute," and it plays no significant role here. Google Books, 804 F.3d at 220.

TVEyes presses the argument that, since facts are not copyrightable, the factual nature of Fox's content militates in favor of a finding of fair use. We have rejected this argument: "Those who report the news undoubtedly create factual works. It cannot seriously be argued that, for that reason, others may freely copy and re-disseminate news reports." Id. at 220.

C

The third statutory factor is "the amount and substantiality of the portion *179used in relation to the copyrighted work as a whole." 17 U.S.C. § 107(3). The relevant consideration is the amount of copyrighted material made available to the public rather than the amount of material used by the copier. Google Books, 804 F.3d at 222.

This factor clearly favors Fox because TVEyes makes available virtually the entirety of the Fox programming that TVEyes users want to see and hear. While "courts have rejected any categorical rule that a copying of the entirety cannot be a fair use," "a finding of fair use is [less] likely ... when the copying is extensive, or encompasses the most important parts of the original." Id. at 221. In this respect, the TVEyes Watch function is radically dissimilar to the service at issue in Google Books.

Google's snippet function was designed to ensure that users could see only a very small piece of a book's contents. Each snippet was three lines of text, constituting approximately one-eighth of a page; a viewer could see at most three snippets per book for any searched term, and no more than one per page. Users were prevented from performing repeated searches to find multiple snippets that could be compiled into a coherent block of text. Approximately 22% of a book's text was "blacklist[ed]": no snippet could be shown from those pages. Id. at 222. And snippets were not available at all for such books as dictionaries or cookbooks, in which a snippet might convey all the information that a searcher was likely to need. While the snippets allowed a user to judge whether a book was responsive to the user's needs, they were abbreviated to ensure that it would be nearly impossible for a user to see a meaningful exposition of what the author originally intended to convey to readers.

TVEyes redistributes Fox's news programming in ten-minute clips, which-given the brevity of the average news segment on a particular topic-likely provide TVEyes's users with all of the Fox programming that they seek and the entirety of the message conveyed by Fox to authorized viewers of the original. Cf. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 564-65, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (finding no fair use when the copying involved only about 300 words, but the portion copied was "the heart of the book"). TVEyes's use of Fox's content is therefore both "extensive" and inclusive of all that is "important" from the copyrighted work. Google Books, 804 F.3d at 221.

D

The fourth statutory factor is "the effect of the [secondary] use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107(4). This factor is "undoubtedly the single most important element of fair use." Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). It "focuses on whether the copy brings to the marketplace a competing substitute for the original, or its derivative, so as to deprive the rights holder of significant revenues because of the likelihood that potential purchasers may opt to acquire the copy in preference to the original." Google Books, 804 F.3d at 223. Critically, it requires consideration of "not only the ... market harm caused by the particular actions of the alleged infringer," but also the market harm that would result from "unrestricted and widespread conduct of the [same] sort." Campbell, 510 U.S. at 590, 114 S.Ct. 1164 (internal quotation marks and alteration omitted).

TVEyes argues that its service poses little risk of being a "competing substitute" for Fox's offerings.

*180Google Books, 804 F.3d at 223. Fox argues that TVEyes undercuts Fox's ability to profit from licensing searchable access to its copyrighted content to third parties. Fox has much the stronger point.

"It is indisputable that, as a general matter, a copyright holder is entitled to demand a royalty for licensing others to use its copyrighted work, and that the impact on potential licensing revenues is a proper subject for consideration in assessing the fourth factor." Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 614 (2d Cir. 2006) (quoting Texaco, 60 F.3d at 929 ). However, "not every effect on potential licensing revenues enters the analysis under the fourth factor." Texaco, 60 F.3d at 929. A copyright owner has no right to demand that users take a license unless the use that would be made is one that would otherwise infringe an exclusive right. See Bill Graham Archives, 448 F.3d at 615. Even if a use does infringe an exclusive right, "[o]nly an impact on potential licensing revenues for traditional, reasonable, or likely to be developed markets should be legally cognizable when evaluating a secondary use's effect upon the potential market for or value of the copyrighted work." Texaco, 60 F.3d at 930 (internal quotation marks omitted).

That limitation does not restrict our analysis here. The success of the TVEyes business model demonstrates that deep-pocketed consumers are willing to pay well for a service that allows them to search for and view selected television clips, and that this market is worth millions of dollars in the aggregate. Consequently, there is a plausibly exploitable market for such access to televised content, and it is proper to consider whether TVEyes displaces potential Fox revenues when TVEyes allows its clients to watch Fox's copyrighted content without Fox's permission.

Such displacement does occur. Since the ability to re-distribute Fox's content in the manner that TVEyes does is clearly of value to TVEyes, it (or a similar service) should be willing to pay Fox for the right to offer the content. By providing Fox's content to TVEyes clients without payment to Fox, TVEyes is in effect depriving Fox of licensing revenues from TVEyes or from similar entities. And Fox itself might wish to exploit the market for such a service rather than license it to others. TVEyes has thus "usurp[ed] a market that properly belongs to the copyright-holder." Kirkwood, 150 F.3d at 110. It is of no moment that TVEyes allegedly approached Fox for a license but was rebuffed: the failure to strike a deal satisfactory to both parties does not give TVEyes the right to copy Fox's copyrighted material without payment.

In short, by selling access to Fox's audiovisual content without a license, TVEyes deprives Fox of revenues to which Fox is entitled as the copyright holder. Therefore, the fourth factor favors Fox.

E

To ascertain whether TVEyes's service is protected as a fair use, the final step is to weigh the four statutory factors together, along with any other relevant considerations. The factors should not be "treated in isolation, one from another"; rather, "[a]ll are to be explored, and the results [are to be] weighed together, in light of the purposes of copyright." Campbell, 510 U.S. at 577-78, 114 S.Ct. 1164. While the factors are not exclusive, in this case they provide sufficient guidance. See Kirkwood, 150 F.3d at 111.

We conclude that TVEyes's service is not justifiable as a fair use. As to the first factor, TVEyes's Watch function is at least somewhat transformative in that it renders convenient and efficient access to a subset *181of content; however, because the function does little if anything to change the content itself or the purpose for which the content is used, its transformative character is modest at best. Accordingly-and because the service at issue is commercial-the first factor favors TVEyes only slightly. The second factor is neutral in this case. The third factor strongly favors Fox because the Watch function allows TVEyes's clients to see and hear virtually all of the Fox programming that they wish. And the fourth factor favors Fox as well because TVEyes has usurped a function for which Fox is entitled to demand compensation under a licensing agreement.

At bottom, TVEyes is unlawfully profiting off the work of others by commercially re-distributing all of that work that a viewer wishes to use, without payment or license. Having weighed the required factors, we conclude that the balance strongly favors Fox and defeats the defense of fair use.

III

TVEyes challenges the district court's conclusion that it is liable to Fox under a theory of direct copyright infringement.5 A direct infringer exercises "volitional conduct" to make the infringing copy. Cartoon Network LP, LLLP v. CSC Holdings, Inc. ("Cablevision"), 536 F.3d 121, 131 (2d Cir. 2008). The conduct at issue in Cablevision was non-volitional; however, it bears no resemblance to what TVEyes does. The Cablevision defendant provided a remote DVR service similar to the recording capability of a DVR in a television viewer's home. Unless the subscriber chose to record a program, it remained on the defendant's server for no more than .1 second. See id. at 124-25. By contrast, TVEyes decides what audiovisual content to record, copies that content, and retains it for thirty-two days. And this copying, at least to the extent that it is done to enable the Watch function, is an infringement. Volitional conduct that infringes is clear.

IV

The district court issued a permanent injunction prohibiting TVEyes from enabling its clients to download clips of Fox's programming or to search for such clips by date and time; the court also imposed restrictions on TVEyes's enabling of its clients to email clips or to post them to social media sites. We review the issuance of a permanent injunction "for abuse of discretion, which may be found where the Court, in issuing the injunction, relied on ... an error of law." S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 237 (2d Cir. 2001) (quoting Knox v. Salinas, 193 F.3d 123, 128-29 (2d Cir. 1999) (per curiam) ).

The district court's injunction was shaped by an error of law: the mistaken assumption that the Watch function (and some features subsidiary to it) had fair-use protection. We therefore remand to the district court to revise the injunction in accordance with this opinion.

Because the product TVEyes currently offers includes the infringing Watch function and its subsidiary features (i.e., clients' ability to archive, download, and email clips, as well as to view clips after *182conducting a date/time search6 ), the court should enjoin TVEyes from offering that product. However, because Fox does not dispute TVEyes's right to offer its Search function, the court's injunction shall not bar TVEyes from offering a product that includes that function without making impermissible use of any protected audiovisual content.7

CONCLUSION

The order of the district court is reversed to the extent it held that TVEyes's product was a fair use. The order is affirmed to the extent it denied TVEyes's request for additional relief. We remand for the district court to revise the injunction to conform with this opinion. Any further appeal will be assigned to this panel.

Kaplan, District Judge,* concurring:

I concur in the result as well as part I, the preamble to part II, and parts II.B, III and IV of the majority opinion. With great respect for my learned and distinguished colleagues, however, I do not join in their characterization of TVEyes' Watch function as "somewhat transformative." I decline for two reasons.

First, although the majority writes that it "is at least somewhat transformative," it holds that the Watch function nevertheless is not a fair use of Fox's copyrighted material. Stated differently, it holds that the other factors relevant to the fair use determination carry the day in favor of Fox regardless of whether the Watch function is or is not transformative. The "somewhat transformative" characterization therefore is entirely immaterial to the resolution of this case-in a familiar phrase, it is obitur dictum .1 I would avoid any such characterization even if I agreed with it.

Second, while I prefer not to state a view as to whether the Watch function is transformative, I would be remiss, given the majority's opinion, if I did not express my doubt that the majority's view is correct. To the contrary, were we compelled to reach the point, I would be inclined to conclude that it is not.

I

I do not suggest that this or any appellate court should "purge dictum from [its] opinions."2 But there are situations in which sound prudential reasons counsel against making statements that are "superfluous to the court's performance of its function."3 I submit that this is one of them.

*1831. "[T]he goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine[ ]."4 "[T]he more transformative the new work, the less will be the significance of other factors."5 It therefore is not at all surprising that attempts by alleged infringers to characterize their uses of copyrighted works as "transformative" have become a key battleground in copyright litigation, particularly as technological advances provide ever-new contexts in which the uncompensated use of copyrighted works is very attractive. And the law governing such controversies often is far from clear. As noted commentators have observed, courts "appear to label a use 'not transformative' as a shorthand for 'not fair,' and correlatively 'transformative' for 'fair.' Such a strategy empties the term of meaning."6 Indeed, as will appear, some of our own decisions on the issue are at least in tension with one another.7

In these circumstances, a finding of transformative use, while "not absolutely necessary for a finding of fair use,"8 is "of crucial importance to the fair use analysis."9 And as the issue of fair use, in the words of a distinguished panel of this Court that remain apt despite intervening years, is "the most troublesome in the whole law of copyright," it is one that "ought not to be resolved in cases where it may turn out to be moot, unless the advantage is very plain."10 The majority's unnecessary characterization of the Watch function as "somewhat transformative" has no "advantage," let alone one that is "very plain." Indeed, I fear it may contribute to confusion and uncertainty regarding this central concept in the law of fair use. Moreover, it threatens to do so in circumstances in which there is no realistic possibility of further appellate review.11 The determination of the transformative use issue should be left for a case in which the question necessarily is presented.

2. The advisability of expressing a view as to whether the Watch function is "transformative" is diminished further because this case passes judgment on a technological innovation. New efficiency-enhancing content delivery technologies that will seek to distribute copyrighted material owned by others doubtless now or soon will exist. Indeed, the efficiency enhancement that the Watch function allegedly provides appears to be, or to have become at least partly, available from Internet-based television subscription services to which Fox News presumably licenses its content.12

*184Given (a) the rapid pace of technological change, (b) the importance of the concept of transformative purpose in fair use jurisprudence, and (c) the fact that it is unnecessary to address the question in this case, I respectfully disagree with the majority's decision to express a view as to whether the Watch function is transformative.

II

In view of the majority's expression of its opinion that the Watch function is "somewhat transformative," I feel compelled to express my own doubts regarding that conclusion.

1. The majority's opinion begins its analysis by observing, correctly in my view, that "[i]t is useful to analyze separately distinct functions of the secondary use (i.e., the use by TVEyes of Tox's copyrighted material), considering whether each independent function is a fair use."13 It then turns to the distinction between the Search function and the Watch function. The Search function "allows clients to identify videos that contain keywords of interest"14 -it "enables users to isolate, from an ocean of programming, material that is responsive to their interests."15 The Watch function, in contrast, "allows TVEyes clients to view up to ten-minute, unaltered video clips of copyrighted content."16 In short, the Search function, which is not challenged here, is simply a vehicle that locates Fox's copyrighted works among other works of interest-it finds the desired species of fish in the majority's metaphorical sea. But the Watch function then catches those fish and delivers them to the fishmonger's stall where TVEyes lays them unchanged (one might say untransformed) on cracked ice for the inspection of its patrons.

Metaphor aside, the majority then proceeds to test the Watch function, ''consider[ing] each of the four [fair use] factors."17 It describes our decision in Google Books ,18 noting that we there "held that the 'snippet view' of unaltered, copyrighted text 'add[ed] important value to the basic transformative search function' by allowing users to verify that the list of books returned by the database was responsive to the user's search."19 And it then goes on to say:

*185"TVEyes's copying of Fox's content for use in the Watch function is similarly transformative insofar as it enables users to isolate, from an ocean of programming, material that is responsive to their interests and needs, and to access that material with targeted precision. It enables nearly instant access to a subset of material-and to information about the material-that would otherwise be irretrievable, or else retrievable only through prohibitively inconvenient or inefficient means."20

But, as the majority itself wrote earlier, it is the Search function that enables users to identify the desired fish in the ocean, not the Watch function. What the Watch function does is to enable instant access to digital recordings of Fox's content that have been identified by the Search function. And the majority's justification for concluding that the Watch function is "somewhat transformative" is that it "improvers] the efficiency of delivering content."21

2. I am inclined to reject the idea that enhancing the efficiency with which copies of copyrighted material are delivered to secondary issuers, in the context in which the Watch function does so, is transformative.

The concept of transformation is a relatively recent addition to copyright jurisprudence, but its antecedents have been around for a long time.

In 1841, Justice Story said that "no one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism," but use that "supersede[s] the original work" is not fair.22 Building on that idea, Judge Leval's landmark article, which later was adopted substantially by the Supreme Court in the Pretty Woman case,23 said:

"I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely 'supersede the objects' of the original. If on the other hand, the secondary use adds value to the original-if the quoted matters is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings-this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.

Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They may also include parody, symbolism, aesthetic declarations, and innumerable other uses."24

Even on the majority's view that TVEyes' Watch function substantially improves the efficiency with which TVEyes customers can access Fox copyrighted broadcasts of possible interest, it does no more than repackage and deliver the original *186works. It adds no new information, no new aesthetics, and no new insights or understandings. I therefore doubt that it is transformative. Indeed, I regard Infinity Broadcast Corp. v. Kirkwood as having settled the question whether a use is transformative simply because it is more efficient or convenient than what preceded it.25

In that case, the defendant, Kirkwood, offered a service through which a Kirkwood customer, regardless of its physical location, could dial a Kirkwood device over a phone line, tune to the radio station of its choice in any of the nation's 10 largest radio markets, and listen to the broadcast of its chosen station. Kirkwood marketed the service to "radio stations, advertisers, talent scouts, and others" for purposes such as "auditioning on-air talent, verifying the broadcast of commercials, and listing to a station's programming format and feel."26 No doubt Kirkwood's service was convenient and efficiency-enhancing. It enabled interested clients who, by reason of distance, could not receive the radio stations of interest to them to (a) access those stations through Kirkwood, (b) listen to their broadcasts over telephone lines and (c) do so for reasons that, at least in many cases, had nothing to do with the purposes for which local listeners tuned their radios to their stations of choice. Nevertheless, this Court rejected Kirkwood's fair use defense, stating that there was a "total absence of transformativeness" in Kirkwood's retransmission of the broadcasts.27 And the Watch function at issue here is essentially indistinguishable in principle.

We rejected the argument that convenience of accessing copyrighted material is a transformative purpose in American Geophysical Union, el al. v. Texaco28 as well. That involved photocopying of scientific journal articles for use in laboratories. Texaco there argued that "its conversion of the individual [journal] articles through photocopying into a form more easily used in a laboratory might constitute transformative use."29 Notwithstanding the fact that the photocopies often were more convenient or efficient than, for example, buying, borrowing, shelving and carrying about bound volumes of journals, we wrote that "Texaco's photocopying merely transforms the material object embodying the intangible article that is the copyrighted original work. Texaco's making of copies cannot properly be regarded as a transformative use of the copyrighted material."30

Also closely aligned with this case are others that dealt with technologies relating to digitized music, mp3s, and music sharing. Defendants in those cases argued that their technologies should be considered fair use because they permitted "space-shifting"-they allowed users to store music in different, more convenient forms that allowed them to listen to it in venues more desirable to them.31 In other words, the technology enhanced efficiency and convenience. But courts presented with this argument either rejected the idea that space-shifting is a transformative purpose or considered the space-shifting argument *187relevant only to the question of the commercial nature of the use.32

These cases support my inclination to conclude that a technological means that delivers copies of copyrighted material to a secondary user more quickly, efficiently or conveniently does not render the distribution of those copies transformative, at least standing alone.

Nor does Google Books support the conclusion that efficiency-enhancing delivery technology is transformative in the circumstances of this case. Google Books, like this case, involved two features: a searchable database and the display of "snippets" from the books containing the search term.33 We held that copying the books to enable the search function had the transformative purpose of "identifying books of interest to the searcher." That purpose was different than the purpose of the books themselves, which served to convey their content to the reader, and it constituted fair use.34 We held also that the snippets-"horizontal segment[s] comprising ordinarily an eighth of a page"-"add[ed] importantly to the highly transformative purpose of identifying books of interest to the searcher."35 But Google Books does not resolve this case.

Google designed the snippet feature "in a manner that substantially protects against its serving as an effectively competing substitute for Plaintiffs' books," employing safeguards such as "blacklisting" (making permanently unavailable for snippet view one snippet per page and one complete page out of every ten) and showing no snippets at all from the sorts of books for which a short snippet would represent all the content a searcher wanted to see (such as dictionaries and cookbooks).36 Here, on the other hand, the Watch function shows ten minute clips, and parties can play unlimited numbers of ten minute clips. Certainly a ten minute clip in many, perhaps most, situations suffices for a user to view an entire news segment. And in situations in which that is not the case, the parties dispute the effectiveness of a preventive measure TVEyes introduced during the course of this litigation to stop users from watching consecutive clips.37 Given the posture of this case-review of a summary judgment decision adverse to Fox on this point-we must view the facts presented by Fox as true and therefore base our decision on the premise that users may access all of Fox's content by stringing clips together.38

*188The facts here thus differ from Google Books quite substantially. The snippet function considered there delivered much less copyrighted content than the Watch function at issue here. Nevertheless, we there concluded that the snippet function only "adds" to the transformative purpose of the Search function. Our conclusion with respect to the Google Books snippet feature therefore does not control the proper characterization of the Watch function at issue here. Moreover, we cautioned in Google Books that the case "test[ed] the boundaries of fair use."39

3. Nor am Ipersuaded by the majority's reliance on Sony Corporation of America v. Universal City Studios, Inc .40

Sony considered a claim that the manufacturer of Betamax video recorders was liable for contributory copyright infringement because its sale of the recorders facilitated copyright infringement by consumers by virtue of the consumers' recording of copyrighted broadcasts to enable them to view the programs at times more convenient to them.41 The Court rejected the contributory infringement claim, essentially on the bases that (a) substantial numbers of copyright holders would not object to the consumers' use of the Sony equipment for "time shifting," and (b) the plaintiffs had failed to prove any likelihood of consequent economic harm.42

The majority here reads Sony as reasoning "that a secondary use may be a fair use if it utilizes transformative technology to improve the efficiency of delivering content."43 But Sony was decided before Judge Leval's article introduced the concept of transformative use or purpose into the copyright lexicon.44 I thus find what Sony teaches about transformative purpose, if anything, to be less than perfectly clear. I certainly do not find within Sony the idea that efficiency-enhancing technology is transformative.

The efficiency enhancement at issue in Sony was "time-shifting"-the use by a consumer of a Betamax device to record a broadcast so that the consumer could watch that show at a later, presumably more convenient, time.45 The Court asked whether time-shifting was a substantial noninfringing use; the answer to that question determined whether Sony could be liable for contributory infringement.46 It was in that context that the Court found that unauthorized time shifting-consumers recording copyrighted shows without authorization to watch the shows once at a *189later time-was "not necessarily infringing."47

The Court's discussion of time-shifting focused on the non-commercial nature of in-home recording: "[R]espondents failed to demonstrate that time-shifting would cause any likelihood of nonminimal harm to the potential market for, or the value of, their copyrighted works. The Betamax is, therefore, capable of substantial noninfringing uses. Sony's sale of such equipment to the general public does not constitute contributory infringement of respondent's copyrights."48

Perhaps the Court in Sony would have found efficiency-enhancing technology to be transformative for that reason alone had that argument been put to it. But I see no indication of that in the opinion. Rather, Sony turned on the question whether "time-shifting," on the facts presented in that case, was a commercial use that affected the broadcasters' ability to make a profit in the market. And the Court so concluded without considering, at least explicitly, whether the recordings served a purpose different from the original broadcasts. In fact, the Court said that "timeshifting merely enables a viewer to see such a work which he had been invited to witness."49 In other words, time-shifting allows a user to do exactly that which the user could have done with the original: watch the show for whatever entertainment, informational or other purpose it serves. No new purpose had been added. So I hesitate to conclude that Sony mandates, or even suggests, the idea that efficiency-enhancing technology is transformative.

My hesitation in this regard is strengthened by this Court's subsequent treatment of Sony. No prior opinion of this Court says, or even suggests, that Sony stands for the proposition that time-shifting in particular, or efficiency-enhancing delivery technology in general, is transformative. In Swatch Group Management Services Ltd v. Bloomberg L.P., we described Sony as a decision "finding a non-transformative use to be a fair use."50 Infinity Broadcast Corp. described Sony's discussion of time-shifting as a "determination] that time-shifting of television programs by consumers in their homes was a non-commercial use."51 Indeed, as noted, we there held that an efficiency promoting technology was not transformative and gave no sign that Sony was relevant to that conclusion.

Similarly, Authors Guild, Inc. v. HathiTrust52 and Google Books53 cite Sony for various principles, but never for the proposition that efficiency-enhancing technology is transformative, despite that idea's obvious potential application in those cases. Because HathiTrust and Google Books so clearly confront an issue closely related to that here, I see as instructive their omission of the idea that Sony declared efficiency-enhancing delivery technology to be transformative. I would join those cases in declining to construe Sony as offering significant guidance regarding transformative use.

In sum, Sony's relevance to transformative use is, at best, unclear. I decline to *190join in the majority's novel interpretation of Sony.

III

For the foregoing reasons, I concur in the judgment of this Court and in part I, the preamble to part II, and parts II.B, III and IV of the majority opinion. I decline to join in part II.A and its characterization of the Watch function as "somewhat transformative."