448 F.3d 605 (2006)

[606] William F. Patry (Paul M. Fakler, on the brief), Thelen Reid & Priest LLP, for Plaintiff-Appellant.

Richard Dannay (Thomas Kjellberg, on the brief), Cowan, Liebowitz & Latman, P.C., for Defendants-Appellees.

Before: KEARSE and RAGGI, Circuit Judges, and RESTANI,^[1] Judge.

RESTANI, Judge.

This appeal concerns the scope of copyright protection afforded artistic concert posters reproduced in reduced size in a biography of the musical group the Grateful Dead. Asserted copyright holder Bill Graham Archives, LLC ("BGA" or "Appellant") [607] appeals from a judgment of the District Court for the Southern District of New York dismissing, on motion for summary judgment, its copyright infringement action against Dorling Kindersley Limited, Dorling Kindersley Publishing, Inc., and R.R. Donnelley & Sons Company (collectively "DK" or "Appellees"). We review the district court's grant of summary judgment de novo, and we agree with the court that DK's reproduction of BGA's images is protected by the fair use exception to copyright infringement.

BACKGROUND

In October of 2003, DK published Grateful Dead: The Illustrated Trip ("Illustrated Trip"), in collaboration with Grateful Dead Productions, intended as a cultural history of the Grateful Dead. The resulting 480-page coffee table book tells the story of the Grateful Dead along a timeline running continuously through the book, chronologically combining over 2000 images representing dates in the Grateful Dead's history with explanatory text. A typical page of the book features a collage of images, text, and graphic art designed to simultaneously capture the eye and inform the reader. Plaintiff BGA claims to own the copyright to seven images displayed in Illustrated Trip, which DK reproduced without BGA's permission.

Initially, DK sought permission from BGA to reproduce the images. In May of 2003, the CEO of Grateful Dead Productions sent a letter to BGA seeking permission for DK to publish the images. BGA responded by offering permission in exchange for Grateful Dead Productions' grant of permission to BGA to make CDs and DVDs out of concert footage in BGA's archives. Next, DK directly contacted BGA seeking to negotiate a license agreement, but the parties disagreed as to an appropriate license fee. Nevertheless, DK proceeded with publication of Illustrated Trip without entering a license fee agreement with BGA. Specifically, DK reproduced seven artistic images originally depicted on Grateful Dead event posters and tickets.^[2] BGA's seven images are displayed in significantly reduced form and are accompanied by captions describing the concerts they represent.

When DK refused to meet BGA's post-publication license fee demands, BGA filed suit for copyright infringement. BGA sought to enjoin further publication of Illustrated Trip, the destruction of all unsold books, and actual and statutory damages. The parties cross-moved for summary judgment, with the primary issue before the district court being whether DK's use of BGA's images constituted fair use under the Copyright Act of 1976, 17 U.S.C. § 101 et seq. ("Copyright Act"). After applying the statutory fair use balancing test, the district court determined that DK's reproduction of the images was fair use and granted DK's motion for summary judgment.

DISCUSSION

Section 106 of the Copyright Act grants copyright holders a bundle of exclusive [608] rights, including the right to "reproduce the copyrighted work in copies," and the right "to prepare derivative works based upon the copyrighted work." 17 U.S.C. § 106. For purposes of the motion, the district court assumed plaintiff possessed these rights in the contested images and there is no dispute that copying the images was not authorized by plaintiff. The issue before us on appeal, as it was in the district court, is whether DK's unauthorized use of BGA's copyrighted images is fair use.

The fair use doctrine is a statutory exception to copyright infringement. Section 107 of the Copyright Act permits the unauthorized use or reproduction of copyrighted work if it is "for purposes such as criticism, comment, news reporting, teaching . . ., scholarship, or research." 17 U.S.C. § 107. Whether such "fair use" exists involves a case-by-case determination using four non-exclusive, statutorily provided factors in light of the purposes of copyright. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 549, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). The factors are: (1) "the purpose and character of the use;" (2) "the nature of the copyrighted work;" (3) "the amount and substantiality of the portion used in relation to the copyrighted work as a whole;" and (4) "the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107. "The ultimate test of fair use . . . is whether the copyright law's goal of promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it." Castle Rock Entm't, Inc. v. Carol Publ'g Group, 150 F.3d 132, 141 (2d Cir.1998) (internal citations and quotation marks omitted).

In this case, the district court concluded that the balance of fair use factors weighs in favor of DK. Although the issue of fair use is a mixed question of law and fact, the court may resolve issues of fair use at the summary judgment stage where there are no genuine issues of material fact as to such issues. Wright v. Warner Books, Inc., 953 F.2d 731, 735 (2d Cir. 1991). As there are no genuine issues of material fact here, we review the district court's legal conclusions de novo. New Era Publ'ns Int'l, ApS v. Carol Publ'g Group, 904 F.2d 152, 155 (2d Cir.1990). We agree with the district court that DK's use of the copyrighted images is protected as fair use.

I. Purpose and Character of Use

We first address "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." 17 U.S.C. § 107(1).^[3] Most important to the court's analysis of the first factor is the "transformative" nature of the work. See Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L.Rev. 1105, 1111 (1990). The question is "whether the new work merely supersede[s] the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (internal citations and quotation marks omitted) (alteration in original).

Here, the district court determined that Illustrated Trip is a biographical work, and the original images are not, and therefore accorded a strong presumption in favor [609] of DK's use. In particular, the district court concluded that DK's use of images placed in chronological order on a timeline is transformatively different from the mere expressive use of images on concert posters or tickets. Because the works are displayed to commemorate historic events, arranged in a creative fashion, and displayed in significantly reduced form, the district court held that the first fair use factor weighs heavily in favor of DK.

Appellant challenges the district court's strong presumption in favor of fair use based on the biographical nature of Illustrated Trip. Appellant argues that based on this purported error the district court failed to examine DK's justification for its use of each of the images. Moreover, Appellant argues that as a matter of law merely placing poster images along a timeline is not a transformative use. Appellant asserts that each reproduced image should have been accompanied by comment or criticism related to the artistic nature of the image.

We disagree with Appellant's limited interpretation of transformative use and we agree with the district court that DK's actual use of each image is transformatively different from the original expressive purpose. Preliminarily, we recognize, as the district court did, that Illustrated Trip is a biographical work documenting the 30-year history of the Grateful Dead. While there are no categories of presumptively fair use, see Campbell v. Acuff-Rose Music, Inc., 510 U.S. at 584, 114 S.Ct. 1164, courts have frequently afforded fair use protection to the use of copyrighted material in biographies, recognizing such works as forms of historic scholarship, criticism, and comment that require incorporation of original source material for optimum treatment of their subjects. See 17 U.S.C. § 107 (stating that fair use of a copyrighted work "for purposes such as criticism, comment . . . [or] scholarship . . . is not an infringement of copyright"); Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913, 932 (2d Cir.1994) (Jacobs, J., dissenting) (noting that "[m]uch of our fair use case law has been generated by the use of quotation in biographies, a practice that fits comfortably within the[] statutory categories of uses illustrative of uses that can be fair") (internal quotation marks omitted) (alteration in original); Salinger v. Random House, Inc., 811 F.2d 90, 96 (2d Cir.1987) (holding that quotation of Salinger's letters in a biography could be considered criticism, scholarship, and research, which are among the illustrative statutory categories of fair use enumerated in 17 U.S.C. § 107). No less a recognition of biographical value is warranted in this case simply because the subject made a mark in pop culture rather than some other area of human endeavor. See Twin Peaks Prods., Inc. v. Publ'ns Int'l, Ltd., 996 F.2d 1366, 1374 (2d Cir.1993) (noting that a work that comments about "pop culture" is not removed from the scope of Section 107 simply because it is not erudite).

In the instant case, DK's purpose in using the copyrighted images at issue in its biography of the Grateful Dead is plainly different from the original purpose for which they were created. Originally, each of BGA's images fulfilled the dual purposes of artistic expression and promotion. The posters were apparently widely distributed to generate public interest in the Grateful Dead and to convey information to a large number people about the band's forthcoming concerts. In contrast, DK used each of BGA's images as historical artifacts to document and represent the actual occurrence of Grateful Dead concert events featured on Illustrated Trip's timeline.

In some instances, it is readily apparent that DK's image display enhances the [610] reader's understanding of the biographical text.^[4] In other instances, the link between image and text is less obvious; nevertheless, the images still serve as historical artifacts graphically representing the fact of significant Grateful Dead concert events selected by the Illustrated Trip's author for inclusion in the book's timeline.^[5] We conclude that both types of uses fulfill DK's transformative purpose of enhancing the biographical information in Illustrated Trip, a purpose separate and distinct from the original artistic and promotional purpose for which the images were created. See Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622, 628-29 (9th Cir.2003) (finding the use of television clips to be transformative where "the clips play for only a few seconds and are used for reference purposes while a narrator talks over them or interviewees explain their context in Elvis' career," but not to be transformative where the clips "play without much interruption, [and t]he purpose of showing these clips likely goes beyond merely making a reference for a biography, but instead serves the same intrinsic entertainment value that is protected by Plaintiffs' copyrights"); see also Hofheinz v. A & E Television Networks, Inc., 146 F.Supp.2d 442, 446-47 (S.D.N.Y.2001) (ruling that unauthorized inclusion of copyrighted film clips in actor's biographical film was protected fair use because the biography "was not shown to recreate the creative expression reposing in plaintiff's [copyrighted] film, [but] for the transformative purpose [611] of enabling the viewer to understand the actor's modest beginnings in the film business"). In sum, because DK's use of the disputed images is transformative both when accompanied by referencing commentary and when standing alone, we agree with the district court that DK was not required to discuss the artistic merits of the images to satisfy this first factor of fair use analysis.

This conclusion is strengthened by the manner in which DK displayed the images. First, DK significantly reduced the size of the reproductions. See Kelly v. Arriba Soft Corp., 336 F.3d 811, 818-20 (9th Cir. 2003) (finding online search engine's use of thumbnail-sized images to be highly transformative). While the small size is sufficient to permit readers to recognize the historical significance of the posters, it is inadequate to offer more than a glimpse of their expressive value. In short, DK used the minimal image size necessary to accomplish its transformative purpose.

Second, DK minimized the expressive value of the reproduced images by combining them with a prominent timeline, textual material, and original graphical artwork, to create a collage of text and images on each page of the book. To further this collage effect, the images are displayed at angles and the original graphical artwork is designed to blend with the images and text. Overall, DK's layout ensures that the images at issue are employed only to enrich the presentation of the cultural history of the Grateful Dead, not to exploit copyrighted artwork for commercial gain. See Hofheinz, 146 F.Supp. at 446.

Third, BGA's images constitute an inconsequential portion of Illustrated Trip. The extent to which unlicensed material is used in the challenged work can be a factor in determining whether a biographer's use of original materials has been sufficiently transformative to constitute fair use. See Craft v. Kobler, 667 F.Supp. 120, 129 (S.D.N.Y.1987) (Leval, J.) (finding biography of Stravinsky to be unfair in part because the takings were numerous and were the "liveliest and most entertaining part of the biography"). Although our circuit has counseled against considering the percentage the allegedly infringing work comprises of the copyrighted work in conducting third-factor fair use analysis, see NXIVM Corp. v. Ross Inst., 364 F.3d 471, 480 (2d Cir.2004), several courts have done so, see, e.g., Harper, 471 U.S. at 565-66, 105 S.Ct. 2218 (finding the fact that quotes from President Ford's unpublished memoirs played a central role in the allegedly infringing magazine article, constituting 13% of that article, weighed against a finding of fair use); Salinger, 811 F.2d at 98-99 (finding the fact that letters are quoted or paraphrased on approximately 40% of the book's 192 pages weighs against fair use). We find this inquiry more relevant in the context of first-factor fair use analysis.

In the instant case, the book is 480 pages long, while the BGA images appear on only seven pages. Although the original posters range in size from 13" x 19" to more than 19" x 27," the largest reproduction of a BGA image in Illustrated Trip is less than 3" x 4½," less than 1/20 the size of the original. And no BGA image takes up more than one-eighth of a page in a book or is given more prominence than any other image on the page. In total, the images account for less than one-fifth of one percent of the book. This stands in stark contrast to the wholesale takings in cases such as those described above, and we are aware of no case where such an insignificant taking was found to be an unfair use of original materials.

Finally, as to this first factor, we briefly address the commercial nature of Illustrated Trip. See Harper, 471 U.S. at [612] 562, 105 S.Ct. 2218 (stating that the fact that the purpose of a new use is commercial weighs against finding fair use). Even though Illustrated Trip is a commercial venture, we recognize that "nearly all of the illustrative uses listed in the preamble paragraph of § 107 . . . are generally conducted for profit. . . ." Campbell, 510 U.S. at 584, 114 S.Ct. 1164 (internal quotation marks omitted). Moreover, "[t]he crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price." Harper, 471 U.S. at 562, 105 S.Ct. 2218. Here, Illustrated Trip does not exploit the use of BGA's images as such for commercial gain. Significantly, DK has not used any of BGA's images in its commercial advertising or in any other way to promote the sale of the book. Illustrated Trip merely uses pictures and text to describe the life of the Grateful Dead. By design, the use of BGA's images is incidental to the commercial biographical value of the book.

Accordingly, we conclude that the first fair use factor weighs in favor of DK because DK's use of BGA's images is transformatively different from the images' original expressive purpose and DK does not seek to exploit the images' expressive value for commercial gain.

II. Nature of the Copyrighted Work

The second factor in a fair use determination is "the nature of the copyrighted work." 17 U.S.C. § 107(2). To resolve this inquiry the court considers "the protection of the reasonable expectations of one who engages in the kinds of creation/authorship that the copyright seeks to encourage." Leval, supra, at 1122. "[C]reative expression for public dissemination falls within the core of the copyright's protective purposes." Campbell, 510 U.S. at 586, 114 S.Ct. 1164.

The district court determined that the second factor weighs against DK because the images are creative artworks, which are traditionally the core of intended copyright protection. Nevertheless, the court limited the weight it placed on this factor because the posters have been published extensively. Appellant agrees that the district court properly weighed the second factor against DK, although it questions the lesser protection given to published works. Appellees counter that because the images are mixed factual and creative works and have been long and extensively published, the second factor tilts toward fair use.

We agree with the district court that the creative nature of artistic images typically weighs in favor of the copyright holder. We recognize, however, that the second factor may be of limited usefulness where the creative work of art is being used for a transformative purpose. See Campbell, 510 U.S. at 586, 114 S.Ct. 1164 (stating that the second factor is not "likely to help much in separating the fair use sheep from the infringing goats" in cases involving transformative copying of "publicly known, expressive works"). This is not a case such as Ringgold v. Black Entm't Television, Inc., 126 F.3d 70 (2d Cir.1997), in which we held that the creative work was being used for the same decorative purpose as the original. Here, we conclude that DK is using BGA's images for the transformative purpose of enhancing the biographical information provided in Illustrated Trip. Accordingly, we hold that even though BGA's images are creative works, which are a core concern of copyright protection, the second factor has limited weight in our analysis because the purpose of DK's use was to emphasize the [613] images' historical rather than creative value.

III. Amount and Substantiality of the Portion Used

The third fair use factor asks the court to examine "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." 17 U.S.C. § 107(3). We review this factor with reference to the copyrighted work, not the infringing work. New Era, 904 F.2d at 159. The court must examine the quantitative and qualitative aspects of the portion of the copyrighted material taken. Campbell, 510 U.S. at 586, 114 S.Ct. 1164.

The district court determined that even though the images are reproduced in their entirety, the third fair use factor weighs in favor of DK because the images are displayed in reduced size and scattered among many other images and texts. In faulting this conclusion, Appellant contends that the amount used is substantial because the images are copied in their entirety. Neither our court nor any of our sister circuits has ever ruled that the copying of an entire work favors fair use. At the same time, however, courts have concluded that such copying does not necessarily weigh against fair use because copying the entirety of a work is sometimes necessary to make a fair use of the image. See Kelly, 336 F.3d at 821 (concluding that images used for a search engine database are necessarily copied in their entirety for the purpose of recognition); Nunez v. Caribbean Int'l News Corp., 235 F.3d 18, 24 (1st Cir.2000) (concluding that to copy any less than the entire image would have made the picture useless to the story). Adopting this reasoning, we conclude that the third-factor inquiry must take into account that the "the extent of permissible copying varies with the purpose and character of the use." Campbell, 510 U.S. at 586-87, 114 S.Ct. 1164.

Here, DK used BGA's images because the posters and tickets were historical artifacts that could document Grateful Dead concert events and provide a visual context for the accompanying text. To accomplish this use, DK displayed reduced versions of the original images and intermingled these visuals with text and original graphic art. As a consequence, even though the copyrighted images are copied in their entirety, the visual impact of their artistic expression is significantly limited because of their reduced size. See Kelly, 336 F.3d at 821 (concluding that thumbnails are not a substitute for full-size images). We conclude that such use by DK is tailored to further its transformative purpose because DK's reduced size reproductions of BGA's images in their entirety displayed the minimal image size and quality necessary to ensure the reader's recognition of the images as historical artifacts of Grateful Dead concert events. Accordingly, the third fair use factor does not weigh against fair use.

IV. Effect of the Use upon the Market for or Value of the Original

The fourth factor is "the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107(4). The court looks to not only the market harm caused by the particular infringement, but also to whether, if the challenged use becomes widespread, it will adversely affect the potential market for the copyrighted work. Harper, 471 U.S. at 568, 105 S.Ct. 2218. This analysis requires a balancing of "the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied." MCA, Inc. v. Wilson, 677 F.2d 180, 183 (2d Cir.1981).

[614] In the instant case, the parties agree that DK's use of the images did not impact BGA's primary market for the sale of the poster images. Instead, we look to whether DK's unauthorized use usurps BGA's potential to develop a derivative market. Appellant argues that DK interfered with the market for licensing its images for use in books. Appellant contends that there is an established market for licensing its images and it suffered both the loss of royalty revenue directly from DK and the opportunity to obtain royalties from others.

"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." Texaco, 60 F.3d at 929 (citations omitted). We have noted, however, that "were a court automatically to conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth fair use factor would always favor the copyright holder." Id. at 930 n. 17 (emphasis added); see Princeton Univ. Press v. Mich. Document Servs., 99 F.3d 1381, 1387 (6th Cir.1996) (stating that a copyright holder must have a right to copyright revenues before finding that a failure to pay a license fee equals market harm); Leval, supra, at 1124 (stating that "[b]y definition every fair use involves some loss of royalty revenue because the secondary user has not paid royalties"); 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05[A][4] (2005) (stating that "it is a given in every fair use case that plaintiff suffers a loss of a potential market if that potential is defined as the theoretical market for licensing the very use at bar"). Accordingly, we do not find a harm to BGA's license market merely because DK did not pay a fee for BGA's copyrighted images.

Instead, we look at the impact on potential licensing revenues for "traditional, reasonable, or likely to be developed markets." Texaco, 60 F.3d at 930. In order to establish a traditional license market, Appellant points to the fees paid to other copyright owners for the reproduction of their images in Illustrated Trip. Moreover, Appellant asserts that it established a market for licensing its images, and in this case expressed a willingness to license images to DK. Neither of these arguments shows impairment to a traditional, as opposed to a transformative market.^[6] See Leval, supra, at 1125 (explaining that "[t]he fourth factor disfavors a finding of fair use only when the market is impaired because the . . . material serves the consumer as a substitute, or, . . . supersedes the use of the original") (internal quotation marks omitted).

Here, unlike in Texaco, we hold that DK's use of BGA's images is transformatively different from their original expressive purpose.^[7] In a case such as this, a [615] copyright holder cannot prevent others from entering fair use markets merely "by developing or licensing a market for parody, news reporting, educational or other transformative uses of its own creative work." Castle Rock, 150 F.3d at 146 n. 11. "[C]opyright owners may not preempt exploitation of transformative markets. . . ." Id. Moreover, a publisher's willingness to pay license fees for reproduction of images does not establish that the publisher may not, in the alternative, make fair use of those images. Campbell, 510 U.S. at 585 n. 18, 114 S.Ct. 1164 (stating that "being denied permission to use [or pay license fees for] a work does not weigh against a finding of fair use"). Since DK's use of BGA's images falls within a transformative market, BGA does not suffer market harm due to the loss of license fees.

V. Balance of Factors

On balance, we conclude, as the district court did, that the fair use factors weigh in favor of DK's use. For the first factor, we conclude that DK's use of concert posters and tickets as historical artifacts of Grateful Dead performances is transformatively different from the original expressive purpose of BGA's copyrighted images. While the second factor favors BGA because of the creative nature of the images, its weight is limited because DK did not exploit the expressive value of the images. Although BGA's images are copied in their entirety, the third factor does not weigh against fair use because the reduced size of the images is consistent with the author's transformative purpose. Finally, we conclude that DK's use does not harm the market for BGA's sale of its copyrighted artwork, and we do not find market harm based on BGA's hypothetical loss of license revenue from DK's transformative market.

CONCLUSION

For the foregoing reasons, we conclude that DK's use of BGA's copyrighted images in its book Illustrated Trip is fair use. Accordingly, we AFFIRM.

[1] The Honorable Jane A. Restani, Chief Judge of the United States Court of International Trade, sitting by designation.

[2] The disputed images appear as follows: (1) on page 76, a concert poster for the Grateful Dead, Jefferson Airplane, and Big Brother and the Holding Company playing at the Hollywood Bowl; (2) on page 103, a concert poster for the Grateful Dead, Jefferson Airplane, and Sons of Champlin playing at the Winterland Arena; (3) on page 130, a picture of the front and back of a concert ticket for a show at the Fillmore Theatre, reused for a Grateful Dead concert at the Winterland Arena; (4) on page 254, a concert poster for Grateful Dead shows at the Warfield Theatre; (5) on page 361, a concert poster for a Grateful Dead show at the Oakland Coliseum; (6) on page 397, a concert poster for a Grateful Dead show on New Year's Eve; and (7) on page 421, a fake in-house poster for a New Year's Eve 1993 concert.

[3] Obviously, the use here is of a general commercial nature rather than a non-profit nature, but the inquiry is both a broader one and a narrower one than may appear at first glance as will be explained.

[4] For example, BGA claims copyright infringement of a concert poster image, reproduced on page 254 of Illustrated Trip, depicting two skeletons flanking the Warfield Theatre. The reader is expected to view this image together with the text on pages 254 and 255 under the caption, "The Warfield/Radio City Shows," and with a non-contested image on page 255, depicting two skeletons flanking the Radio City Music Hall. In this instance, the text specifically comments on the poster image, explaining:

The Dead's real 15th anniversary celebration in 1980 spanned two months, two coasts, and eventually two albums. . . . The bicoastal settings for the shows were very different—San Francisco's Warfield Theatre was an intimate house of 2,400 seats, while New York City's Radio City Music Hall was, well, Radio City—but the Dead's performances in both produced some of the most treasured moments of the band's early '80s period. . . . The [Dead's] otherwise brilliant Radio City run was marred by a bizarre dispute between the band and Radio City's management. The latter objected to promotional posters showing the inevitable skeletons flanking the venerable venue. Evidently not well versed in Grateful Dead iconography, the Radio City execs interpreted the posters as a coded message that the band thought that Radio City's days were numbered, and they slapped the band with a million-dollar lawsuit. The misunderstanding was quickly cleared up.

The author uses images to enhance the reader's understanding of the statement that Radio City Music Hall executives were unfamiliar with Grateful Dead iconography by displaying nearly identical concert promotion posters for the Warfield Theatre and the Radio City Music Hall.

[5] For example, BGA claims copyright infringement of a concert poster image, reproduced on page 103 of Illustrated Trip, promoting a concert at the Winterland Arena. The reader is expected to view this image together with an entry on the timeline for October 24, 25, and 26, accompanying text describing the shows, and a quotation from Bill Graham to the audience on Saturday, October 25. The text describes the show as follows:

Hot Tuna, Jefferson Airplane, and Sons of Champlin play all three nights. On Saturday Stephen Stills may have played on "Turn on Your Lovelight." Sunday marks the last "Doin' that Rag."

While the concert poster image does not necessarily enhance the reader's understanding of the text, it serves as a recognizable representation of the concert. It also documents concert information and provides notable historic details, such as the fact that, at this relatively early stage of its career, the Grateful Dead received second billing to Jefferson Airplane.

[6] To the contrary, had the book been commercially successful—which it was not—it might have garnered interest in the original images in full size because the reduced images have such minimal expressive impact. An afficionado might seek more than a "peek."

[7] Texaco may also be distinguished because in that case we found that scientific researchers' copying of scientific journal articles caused those journals to lose license revenues, because the researchers were looking to their own copies of the articles rather than downloading them from online databases such as Lexis, which paid the journals a license fee. See 60 F.3d at 929-32. In other words, Texaco involved direct evidence that the allegedly infringing use would cause the owner to lose license revenues derived from a substantially similar use.

Here, in contrast, BGA's direct evidence of its license revenues involves a use that is markedly different from the use by DK. The licenses BGA sold to other publishers were for substantially less transformative uses of its posters: full-page, prominently displayed reproductions of BGA's images, with little discussion of the images or their historical context, much less any compilation of other related works into a coherent whole. Indeed, one of the images BGA points to was used as the cover of a book. DK's use of BGA's images is markedly more original than the other uses that BGA has licensed and BGA thus has not shown direct evidence of significant lost license revenue from the uses at issue here.

EDWARD H. ROSENTHAL (Jeremy S. Goldman, Anna Kadyshevich, on the brief), Frankfurt Kurnit Klein & Selz, P.C., New York, NY, for Plaintiffs-Appellants.

JOSEPH PETERSEN (Robert Potter, Joseph Beck, Andrew Pequignot, Allison Scott Roach, on the brief), Kilpatrick Townsend & Stockton LLP, New York, NY, for Defendants-Appellees.

DANIEL F. GOLDSTEIN (Jessica P. Weber, on the brief), Brown Goldstein & Levy, LLP, Baltimore, MD; Robert J. Bernstein, New York, NY, on the brief; Peter Jaszi, Chevy Chase, MD, on the brief, for Intervenor Defendants-Appellees.

Jennifer M. Urban, Pamela Samuelson, David Hansen, Samuelson Law, Technology & Public Policy Clinic, University of California, Berkeley, School of Law, Berkeley, CA, for Amici Curiae 133 Academic Authors.

Blake E. Reid, Brian Wolfman, Institute for Public Representation, Georgetown University Law Center, Washington, DC, for Amicus Curiae American Association of People with Disabilities.

Jonathan Band, Jonathan Band PLLC, Washington, DC, for Amicus Curiae American Library Association.

David Leichtman, Hillel I. Parness, Shane D. St. Hill, Robins, Kaplan, Miller & Ciresi L.L.P., New York, NY, for Amicus Curiae American Society of Journalists and Authors, Inc.

Brian G. Joseph, Karyn K. Ablin, Wiley Rein LLP; Ada Meloy, General Counsel, American Council on Education, Washington, DC, for Amici Curiae American Council on Education, Association of American Universities, et al.

Elizabeth A. McNamara, Alison B. Schary, Colin J. Peng-Sue, Davis Wright Tremaine LLP, New York, NY, for Amicus Curiae the Associated Press.

Mary E. Rasenberger, Nancy E. Wolff, Eleanor M. Lackman, Nicholas J. Tardif, Cowan DeBaets, Abrahams & Sheppard LLP, New York, NY, for Amicus Curiae Association of American Publishers.

Jo Anne Simon, Mary J. Goodwin, Amy F. Robertson, Jo Anne Simon, P.C., Brooklyn, NY, for Amici Curiae Association on Higher Education and Disability, Marilyn J. Bartlett, et al.

Brandon Butler, Washington, DC, for Amici Curiae Beneficent Technolology, Inc., and Learning Ally, Inc.

Susan M. Kornfield, Bodman PLC, Ann Arbor, MI, for Amici Curiae Board of Trustees of the University of Illinois, Board of Trustees of Michigan State University, et al.

Jason Schultz, Berkeley, CA; Matthew Sag, Chicago, IL, for Amici Curiae Digital Humanities and Law Scholars.

Michael Waterstone, Los Angeles, CA; Robert Dinerstein, Washington, DC; Christopher H. Knauf, Knauf Associates, Santa Monica, CA; Michael Stein, Cambridge, MA, for Amici Curiae Disability Law Professors.

Roderick M. Thompson, Stephanie P. Skaff, Deepak Gupta, Rochelle L. Woods, Farella Braun + Martel LLP, San Francisco, CA; Corynne McSherry, Daniel Nazer, Electronic Frontier Foundation, San Francisco, CA; John Bergmayer, Public Knowledge, Washington, DC; David Sohn, Center for Democracy & Technology, Washington, DC, for Amicus Curiae Electronic Frontier Foundation.

Stephen M. Schaetzel, Meunier Carlin & Curfman, LLC, Atlanta, GA, for Amicus Curiae Emory Vaccine Center.

Frederick A. Brodie, Pillsbury Winthrop Shaw Pittman LLP, New York, NY, for Amicus Curiae the Leland Stanford Junior University.

Eric J. Grannis, The Law Offices of Eric J. Grannis, New York, NY, for Amici Curiae Medical Historians.

Steven B. Fabrizio, Kenneth L. Doroshow, Steven R. Englund, Jenner & Block LLP, Washington, DC, for Amicus Curiae Motion Picture Association of America, Inc.

Before: WALKER, CABRANES, and PARKER, Circuit Judges.

BARRINGTON D. PARKER, Circuit Judge.

Beginning in 2004, several research universities including the University of Michigan, the University of California at Berkeley, Cornell University, and the University of Indiana agreed to allow Google to electronically scan the books in their collections. In October 2008, thirteen universities announced plans to create a repository for the digital copies and founded an organization called HathiTrust to set up and operate the HathiTrust Digital Library (or "HDL"). Colleges, universities, and other nonprofit institutions became members of HathiTrust and made the books in their collections available for inclusion in the HDL. HathiTrust currently has 80 member institutions and the HDL contains digital copies of more than ten million works, published over many centuries, written in a multitude of languages, covering almost every subject imaginable. This appeal requires us to decide whether the HDL's use of copyrighted material is protected against a claim of copyright infringement under the doctrine of fair use. See 18 U.S.C. § 107.

BACKGROUND

A. The HathiTrust Digital Library

HathiTrust permits three uses of the copyrighted works in the HDL repository. First, HathiTrust allows the general public to search for particular terms across all digital copies in the repository. Unless the copyright holder authorizes broader use, the search results show only the page numbers on which the search term is found within the work and the number of times the term appears on each page. The HDL does not display to the user any text from the underlying copyrighted work (either in "snippet" form or otherwise). Consequently, the user is not able to view either the page on which the term appears or any other portion of the book.

Below is an example of the results a user might see after running an HDL full-text search:

[Image Omitted]

J.A. 681 ¶ 80 (Wilkin Decl.).

Second, the HDL allows member libraries to provide patrons with certified print disabilities access to the full text of copyrighted works. A "print disability" is any disability that prevents a person from effectively reading printed material. Blindness is one example, but print disabilities also include those that prevent a person from physically holding a book or turning pages. To use this service, a patron must obtain certification of his disability from a qualified expert. Through the HDL, a print-disabled user can obtain access to the contents of works in the digital library using adaptive technologies such as software that converts the text into spoken words, or that magnifies the text. Currently, the University of Michigan's library is the only HDL member that permits such access, although other member libraries intend to provide it in the future.

Third, by preserving the copyrighted books in digital form, the HDL permits members to create a replacement copy of the work, if the member already owned an original copy, the member's original copy is lost, destroyed, or stolen, and a replacement copy is unobtainable at a "fair" price elsewhere.

The HDL stores digital copies of the works in four different locations. One copy is stored on its primary server in Michigan, one on its secondary server in Indiana, and two on separate backup tapes at the University of Michigan.^[3] Each copy contains the full text of the work, in a machine readable format, as well as the images of each page in the work as they appear in the print version.

B. The Orphan Works Project

Separate and apart from the HDL, in May 2011, the University of Michigan developed a project known as the Orphan Works Project (or "OWP"). An "orphan work" is an out-of-print work that is still in copyright, but whose copyright holder cannot be readily identified or located. See U.S. Copyright Office, Notice of Inquiry, Orphan Works and Mass Digitization, 77 Fed. Reg. 64555 (Oct. 22, 2012).

The University of Michigan conceived of the OWP in two stages: First, the project would attempt to identify out-of-print works, try to find their copyright holders, and, if no copyright holder could be found, publish a list of orphan works candidates to enable the copyright holders to come forward or be otherwise located. If no copyright holder came forward, the work was to be designated as an orphan work. Second, those works identified as orphan works would be made accessible in digital format to the OWP's library patrons (with simultaneous viewers limited to the number of hard copies owned by the library).

The University evidently became concerned that its screening process was not adequately distinguishing between orphan works (which were to be included in the OWP) and in-print works (which were not). As a result, before the OWP was brought online, but after the complaint was filed in this case, the University indefinitely suspended the project. No copyrighted work has been distributed or displayed through the project and it remains suspended as of this writing.

C. Proceedings in the District Court

This case began when twenty authors and authors' associations (collectively, the "Authors") sued HathiTrust, one of its member universities, and the presidents of four other member universities (collectively, the "Libraries") for copyright infringement seeking declaratory and injunctive relief. The National Federation of the Blind and three print-disabled students (the "Intervenors") were permitted to intervene to defend their ability to continue using the HDL.

The Libraries initially moved for partial judgment on the pleadings on the ground that the authors' associations lacked standing to assert claims on behalf of their members and that the claims related to the OWP were not ripe. See Fed. R. Civ. P. 12(c). The Libraries then moved for summary judgment on the remaining claims on the ground that their uses of copyrighted material were protected by the doctrine of fair use, see 17 U.S.C. § 107, and also by the Chafee Amendment, see id. § 121. The Intervenors moved for summary judgment on substantially the same grounds as the Libraries and, finally, the Authors cross-moved for summary judgment.

D. The District Court's Opinion

The district court granted the Libraries' and Intervenors' motions for summary judgment on the infringement claims on the basis that the three uses permitted by the HDL were fair uses. In this assessment, the district court gave considerable weight to what it found to be the "transformative" nature of the three uses and to what it described as the HDL's "invaluable" contribution to the advancement of knowledge, Authors Guild, Inc. v. HathiTrust, 902 F. Supp. 2d 445, 460-64 (S.D.N.Y. 2012). The district court explained:

Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by [the HDL] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the [Americans With Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. §§ 12101, et seq.)].

Id. at 464.

Next, the district court addressed the Libraries' Chafee Amendment defense. Under the Amendment, "authorized entities" are permitted to reproduce or distribute copies of a previously published, nondramatic literary work in specialized formats exclusively for use by the blind or other persons with disabilities. See 17 U.S.C. § 121; HathiTrust, 902 F. Supp. 2d at 465. Under § 121, an "`authorized entity' means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities." 17 U.S.C. § 121(d)(1).

The district court stated that the ADA requires that libraries of educational institutions, such as the Libraries in this case, "have a primary mission to reproduce and distribute their collections to print-disabled individuals," which, according to Judge Baer, made "each library a potential `authorized entity' under the Chafee Amendment." HathiTrust, 902 F. Supp. 2d at 465. As a result, the district court concluded that "[t]he provision of access to previously published non-dramatic literary works within the HDL fits squarely within the Chafee Amendment, although Defendants may certainly rely on fair use . . . to justify copies made outside of these categories or in the event that they are not authorized entities." Id.

The district court held that certain associational plaintiffs lacked standing under the Copyright Act and dismissed them from the suit. Id. at 450-55. The district court also held that the OWP claims were unripe for judicial review in the absence of crucial information about what the program would look like and whom it would affect should it be implemented, and because the Authors would suffer no hardship by deferring litigation until such time as the Libraries released the details of a new OWP and a revised list of orphan work candidates. Id. at 455-56. The court entered judgment against the Authors, and this appeal followed.

DISCUSSION

We review de novo under well-established standards the district court's decisions granting summary judgment and judgment on the pleadings. See Maraschiello v. City of Buffalo Police Dep't, 709 F.3d 87, 92 (2d Cir. 2013) (summary judgment); LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F. 3d 471, 475 (2d Cir. 2009) (judgment on the pleadings).

As a threshold matter, we consider whether the authors' associations have standing to assert infringement claims on behalf of their members.

Three of these authors' associations—Authors Guild, Inc., Australian Society of Authors Limited, and Writers' Union of Canada—claim to have standing, solely as a matter of U.S. law, to seek an injunction for copyright infringement on their members' behalf. But, as we have previously explained, § 501 of "the Copyright Act does not permit copyright holders to choose third parties to bring suits on their behalf." ABKCO Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d 971, 980 (2d Cir. 1991); see also Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 92 (2d Cir. 1998) ("United States law permits suit only by owners of `an exclusive right under a copyright' . . . ." (quoting 17 U.S.C. § 501(b))). Accordingly, we agree with the district court that these associations lack standing to bring suit on behalf of their members, and they were properly dismissed from the suit.

The remaining four authors' associations—Union des Écrivaines et des Écrivains Québécois, Authors' Licensing and Collecting Society, Sveriges Författarförbund, and Norsk faglitterær forfattero og oversetterforening—assert that foreign law confers upon them certain exclusive rights to enforce the copyrights of their foreign members (an assertion that the Libraries do not contest on this appeal). These four associations do have standing to bring suit on behalf of their members. See Itar-Tass, 153 F.3d at 93-94 (recognizing that an association authorized by foreign law to administer its foreign members' copyrights has standing to seek injunctive relief on behalf of those members in U.S. court).

I. Fair Use^[4]

A

As the Supreme Court has explained, the overriding purpose of copyright is "`[t]o promote the Progress of Science and useful Arts. . . .'" Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 574 (1994) (quoting U.S. CONST. art. I, § 8, cl. 8); see also Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). This goal has animated copyright law in Anglo-American history, beginning with the first copyright statute, the Statute of Anne of 1709, which declared itself to be "[a]n Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors . . . during the Times therein mentioned." Act for the Encouragement of Learning, 8 Anne, ch. 19. In short, our law recognizes that copyright is "not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public." Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1107 (1990).

The Copyright Act furthers this core purpose by granting authors a limited monopoly over (and thus the opportunity to profit from) the dissemination of their original works of authorship. See 17 U.S.C. §§ 102, 106, 302-305. The Copyright Act confers upon authors certain enumerated exclusive rights over their works during the term of the copyright, including the rights to reproduce the copyrighted work and to distribute those copies to the public. Id. § 106(1), (3). The Act also gives authors the exclusive right to prepare certain new works—called "derivative works"—that are based upon the copyrighted work. Id. § 106(2). Paradigmatic examples of derivative works include the translation of a novel into another language, the adaptation of a novel into a movie or a play, or the recasting of a novel as an e-book or an audiobook. See id. § 101. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. Id. § 302.

At the same time, there are important limits to an author's rights to control original and derivative works. One such limit is the doctrine of "fair use," which allows the public to draw upon copyrighted materials without the permission of the copyright holder in certain circumstances. See id. § 107 ("[T]he fair use of a copyrighted work . . . is not an infringement of copyright."). "From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, `[t]o promote the Progress of Science and useful Arts. . . .'" Campbell, 510 U.S. at 574.

Under the fair-use doctrine, a book reviewer may, for example, quote from an original work in order to illustrate a point and substantiate criticisms, see Folsom v. Marsh, 9 F. Cas. 342, 344 (C.C.D. Mass. 1841) (No. 4901), and a biographer may quote from unpublished journals and letters for similar purposes, see Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991). An artist may employ copyrighted photographs in a new work that uses a fundamentally different artistic approach, aesthetic, and character from the original. See Cariou v. Prince, 714 F.3d 694, 706 (2d Cir. 2013). An internet search engine can display low-resolution versions of copyrighted images in order to direct the user to the website where the original could be found. See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007); Kelly v. Arriba Soft Corp., 336 F.3d 811, 818-22 (9th Cir. 2002). A newspaper can publish a copyrighted photograph (taken for a modeling portfolio) in order to inform and entertain the newspaper's readership about a news story. See Nunez v. Caribbean Int'l News Corp., 235 F.3d 18, 25 (1st Cir. 2000). A viewer can create a recording of a broadcast television show in order to view it at a later time. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 447-450 (1984). And a competitor may create copies of copyrighted software for the purpose of analyzing that software and discovering how it functions (a process called "reverse engineering"). See Sony Comp. Entertainment, Inc. v. Connectix Corp., 203 F.3d 596, 599-601 (9th Cir. 2000).

The doctrine is generally subject to an important proviso: A fair use must not excessively damage the market for the original by providing the public with a substitute for that original work. Thus, a book review may fairly quote a copyrighted book "for the purposes of fair and reasonable criticism," Folsom, 9 F. Cas. at 344, but the review may not quote extensively from the "heart" of a forthcoming memoir in a manner that usurps the right of first publication and serves as a substitute for purchasing the memoir, Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).

In 1976, as part of a wholesale revision of the Copyright Act, Congress codified the judicially created fair-use doctrine at 17 U.S.C. § 107. See Copyright Act of 1976, Pub. L. No. 94-553, § 107, 90 Stat. 2541, 2546 (1976) (codified as amended at 17 U.S.C. § 107). Section 107 requires a court to consider four nonexclusive factors which are to be weighed together to assess whether a particular use is fair:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107.

An important focus of the first factor is whether the use is "transformative." A use is transformative if it does something more than repackage or republish the original copyrighted work. The inquiry is whether the work "adds something new, with a further purpose or different character, altering the first with new expression, meaning or message. . . ." Campbell, 510 U.S. at 579 (citing Leval, 103 HARV. L. REV. at 1111). "[T]he more transformative the new work, the less will be the significance of other factors . . . that may weigh against a finding of fair use." Id. Contrary to what the district court implied, a use does not become transformative by making an "invaluable contribution to the progress of science and cultivation of the arts." HathiTrust, 902 F. Supp. 2d at 464. Added value or utility is not the test: a transformative work is one that serves a new and different function from the original work and is not a substitute for it.

The second factor considers whether the copyrighted work is "of the creative or instructive type that the copyright laws value and seek to foster." Leval, 103 HARV. L. REV. at 1117; see also Folsom, 9 F. Cas. at 348 ("[W]e must often . . . look to the nature and objects of the selections made . . . ."). For example, the law of fair use "recognizes a greater need to disseminate factual works than works of fiction or fantasy." Harper & Row, 471 U.S. at 563.

The third factor asks whether the secondary use employs more of the copyrighted work than is necessary, and whether the copying was excessive in relation to any valid purposes asserted under the first factor. Campbell, 510 U.S. at 586-87. In weighing this factor, we assess the quantity and value of the materials used and whether the amount copied is reasonable in relation to the purported justifications for the use under the first factor. Leval, 103 HARV. L. REV. at 1123.

Finally, the fourth factor requires us to assess the impact of the use on the traditional market for the copyrighted work. This is the "single most important element of fair use." Harper & Row, 471 U.S. at 566. To defeat a claim of fair use, the copyright holder must point to market harm that results because the secondary use serves as a substitute for the original work. See Campbell, 510 U.S. at 591 ("cognizable market harm" is limited to "market substitution"); see also NXIVM Corp. v. Ross Inst., 364 F.3d 471, 481-82 (2d Cir. 2004).

B

As discussed above, the Libraries permit three uses of the digital copies deposited in the HDL. We now consider whether these uses are "fair" within the meaning of our copyright law.

1. Full-Text Search

It is not disputed that, in order to perform a full-text search of books, the Libraries must first create digital copies of the entire books. Importantly, as we have seen, the HDL does not allow users to view any portion of the books they are searching. Consequently, in providing this service, the HDL does not add into circulation any new, human-readable copies of any books. Instead, the HDL simply permits users to "word search"—that is, to locate where specific words or phrases appear in the digitized books. Applying the relevant factors, we conclude that this use is a fair use.

i.

Turning to the first factor, we conclude that the creation of a full-text searchable database is a quintessentially transformative use. As the example on page 7, supra, demonstrates, the 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. Indeed, we can discern little or no resemblance between the original text and the results of the HDL full-text search.

There is no evidence that the Authors write with the purpose of enabling text searches of their books. Consequently, the full-text search function does not "supersede[] the objects [or purposes] of the original creation," Campbell, 510 U.S. at 579 (internal quotation marks omitted). The HDL does not "merely repackage[] or republish[] the original[s]," Leval, 103 HARV. L. REV. at 1111, or merely recast "an original work into a new mode of presentation," Castle Rock Entm't, Inc. v. Carol Publ'g Grp., Inc., 150 F.3d 132, 143 (2d Cir. 1998). Instead, by enabling full-text search, the HDL adds to the original something new with a different purpose and a different character.

Full-text search adds a great deal more to the copyrighted works at issue than did the transformative uses we approved in several other cases. For example, in Cariou v. Prince, we found that certain photograph collages were transformative, even though the collages were cast in the same medium as the copyrighted photographs. 714 F.3d at 706. Similarly, in Bill Graham Archives v. Dorling Kindersley Ltd., we held that it was a transformative use to include in a biography copyrighted concert photos, even though the photos were unaltered (except for being reduced in size). 448 F.3d 605, 609-11 (2d Cir. 2006); see also Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2006) (transformative use of copyrighted photographs in collage painting); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 114 (2d Cir. 1998) (transformative use of copyrighted photograph in advertisement).

Cases from other Circuits reinforce this conclusion. In Perfect 10, Inc., the Ninth Circuit held that the use of copyrighted thumbnail images in internet search results was transformative because the thumbnail copies served a different function from the original copyrighted images. 508 F.3d at 1165; accord Arriba Soft Corp., 336 F.3d at 819. And in A.V. ex rel. Vanderhye v. iParadigms, LLC, a company created electronic copies of unaltered student papers for use in connection with a computer program that detects plagiarism. Even though the electronic copies made no "substantive alteration to" the copyrighted student essays, the Fourth Circuit held that plagiarism detection constituted a transformative use of the copyrighted works. 562 F.3d 630, 639-40.

ii.

The second fair-use factor—the nature of the copyrighted work—is not dispositive. The HDL permits the full-text search of every type of work imaginable. Consequently, there is no dispute that the works at issue are of the type that the copyright laws value and seek to protect. However, "this factor `may be of limited usefulness where,' as here, `the creative work . . . is being used for a transformative purpose." Cariou, 714 F.3d at 710 (quoting Bill Graham Archives, 448 F.3d at 612). Accordingly, our fair-use analysis hinges on the other three factors.

iii.

The third factor asks whether the copying used more of the copyrighted work than necessary and whether the copying was excessive. As we have noted, "[t]here are no absolute rules as to how much of a copyrighted work may be copied and still be considered a fair use." Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1263 (2d Cir. 1986). "[T]he extent of permissible copying varies with the purpose and character of the use." Campbell, 510 U.S. at 586-87. The crux of the inquiry is whether "no more was taken than necessary." Id. at 589. For some purposes, it may be necessary to copy the entire copyrighted work, in which case Factor Three does not weigh against a finding of fair use. See Bill Graham Archives, 448 F.3d at 613 (entire image copied); Arriba Soft, 336 F.3d at 821 ("If Arriba only copied part of the image, it would be more difficult to identify it, thereby reducing the usefulness of the visual search engine.").

In order to enable the full-text search function, the Libraries, as we have seen, created digital copies of all the books in their collections.^[5] Because it was reasonably necessary for the HDL to make use of the entirety of the works in order to enable the full-text search function, we do not believe the copying was excessive.

The Authors also contend that the copying is excessive because the HDL creates and maintains copies of the works at four different locations Appellants' Br. 27-28. But the record demonstrates that these copies are also reasonably necessary in order to facilitate the HDL's legitimate uses. In particular, the HDL's services are offered to patrons through two servers, one at the University of Michigan (the primary server) and an identical one at the University of Indiana (the "mirror" server). Both servers contain copies of the digital works at issue. According to the HDL executive director, the "existence of a[n] [identical] mirror site allows for balancing the load of user web traffic to avoid overburdening a single site, and each site acts as a back-up of the HDL collection in the event that one site were to cease operation (for example, due to failure caused by a disaster, or even as a result of routine maintenance)." J.A. 682-83 ¶ 88-89 (Wilkin Decl.). To further guard against the risk of data loss, the HDL stores copies of the works on two encrypted backup tapes, which are disconnected from the internet and are placed in separate secure locations on the University of Michigan campus. Id. at 683 ¶ 90. The HDL creates these backup tapes so that the data could be restored in "the event of a disaster causing large-scale data loss" to the primary and mirror servers. Id.

We have no reason to think that these copies are excessive or unreasonable in relation to the purposes identified by the Libraries and permitted by the law of copyright. In sum, even viewing the evidence in the light most favorable to the Authors, the record demonstrates that these copies are reasonably necessary to facilitate the services HDL provides to the public and to mitigate the risk of disaster or data loss. Accordingly, we conclude that this factor favors the Libraries.

iv.

The fourth factor requires us to consider "the effect of the use upon the potential market for or value of the copyrighted work," 17 U.S.C. § 107(4), and, in particular, whether the secondary use "usurps the market of the original work," NXIVM Corp., 364 F.3d at 482.

The Libraries contend that the full-text-search use poses no harm to any existing or potential traditional market and point to the fact that, in discovery, the Authors admitted that they were unable to identify "any specific, quantifiable past harm, or any documents relating to any such past harm," resulting from any of the Libraries' uses of their works (including full-text search). Defs.-Appellees' Br. 38 (citing Pls.' Resps. to Interrogs.). The district court agreed with this contention, as do we.

At the outset, it is important to recall that the Factor Four analysis is concerned with only one type of economic injury to a copyright holder: the harm that results because the secondary use serves as a substitute for the original work. See Campbell, 510 U.S. at 591 ("cognizable market harm" is limited to "market substitution"). In other words, under Factor Four, any economic "harm" caused by transformative uses does not count because such uses, by definition, do not serve as substitutes for the original work. See Bill Graham Archives, 448 F.3d at 614.

To illustrate why this is so, consider how copyright law treats book reviews. Book reviews often contain quotations of copyrighted material to illustrate the reviewer's points and substantiate his criticisms; this is a paradigmatic fair use. And a negative book review can cause a degree of economic injury to the author by dissuading readers from purchasing copies of her book, even when the review does not serve as a substitute for the original. But, obviously, in that case, the author has no cause for complaint under Factor Four: The only market harms that count are the ones that are caused because the secondary use serves as a substitute for the original, not when the secondary use is transformative (as in quotations in a book review). See Campbell, 510 U.S. at 591-92 ("[W]hen a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act.").

The Authors assert two reasons why the full-text-search function harms their traditional markets. The first is a "lost sale" theory which posits that a market for licensing books for digital search could possibly develop in the future, and the HDL impairs the emergence of such a market because it allows patrons to search books without any need for a license. Thus, according to the Authors, every copy employed by the HDL in generating full-text searches represents a lost opportunity to license the book for search. Appellants' Br. 43.

This theory of market harm does not work under Factor Four, because the full-text search function does not serve as a substitute for the books that are being searched. See Campbell, 510 U.S. at 591-92; Bill Graham Archives, 448 F.3d at 614. Thus, it is irrelevant that the Libraries might be willing to purchase licenses in order to engage in this transformative use (if the use were deemed unfair). Lost licensing revenue counts under Factor Four only when the use serves as a substitute for the original and the full-text-search use does not.

Next, the Authors assert that the HDL creates the risk of a security breach which might impose irreparable damage on the Authors and their works. In particular, the Authors speculate that, if hackers were able to obtain unauthorized access to the books stored at the HDL, the full text of these tens of millions of books might be distributed worldwide without restriction, "decimat[ing]" the traditional market for those works. Appellants' Br. 40.

The record before us documents the extensive security measures the Libraries have undertaken to safeguard against the risk of a data breach. Some of those measures were described by the HDL executive director as follows:

First, [HDL] maintains . . . rigorous physical security controls. HDL servers, storage, and networking equipment at Michigan and Indiana University are mounted in locked racks, and only six individuals at Michigan and three at Indiana University have keys. The data centers housing HDL servers, storage, and networking equipment at each site location are monitored by video surveillance, and entry requires use of both a keycard and a biometric sensor.

Second, network access to the HDL corpus is highly restricted, even for the staff of the data centers housing HDL equipment at Michigan and Indiana University. For example, two levels of network firewalls are in place at each site, and Indiana University data

center staff do not have network access to the HDL corpus, only access to the physical equipment. For the backup tapes, network access is limited to the administrators of the backup system, and these individuals are not provided the encryption key that would be required to access the encrypted files on the backup tapes.

Web access to the HDL corpus is also highly restricted. Access by users of the HDL service is governed by primarily by [sic] the HDL rights database, which classifies each work by presumed copyright status, and also by a user's authentication to the system (e.g., as an individual certified to have a print disability by Michigan's Office of Services for Students with Disabilities).. . .

Even where we do permit a work to be read online, such as a work in the public domain, we make efforts to ensure that inappropriate levels of access do not take place. For example, a mass download prevention system called "choke" is used to measure the rate of activity (such as the rate a user is reading pages) by each individual user. If a user's rate of activity exceeds certain thresholds, the system assumes that the user is mechanized (e.g., a web robot) and blocks that user's access for a set period of time.

J.A. 683-85 ¶¶ 94-96, 98 (Wilkins Decl.).

This showing of the security measures taken by the Libraries is essentially unrebutted. Consequently, we see no basis in the record on which to conclude that a security breach is likely to occur, much less one that would result in the public release of the specific copyrighted works belonging to any of the plaintiffs in this case. Cf. Clapper v. Amnesty Int'l USA, ___ U.S. ___, ___, 133 S. Ct. 1138, 1143, 1149 (2013) (risk of future harm must be "certainly impending," rather than merely "conjectural" or "hypothetical," to constitute a cognizable injury-in-fact); Sony Corp., 464 U.S. at 453-54 (concluding that time-shifting using a Betamax is fair use because the copyright owners' "prediction that live television or movie audiences will decrease" was merely "speculative"). Factor Four thus favors a finding of fair use.

Without foreclosing a future claim based on circumstances not now predictable, and based on a different record, we hold that the balance of relevant factors in this case favors the Libraries. In sum, we conclude that the doctrine of fair use allows the Libraries to digitize copyrighted works for the purpose of permitting full-text searches.

2. Access to the Print-Disabled

The HDL also provides print-disabled patrons with versions of all of the works contained in its digital archive in formats accessible to them. In order to obtain access to the works, a patron must submit documentation from a qualified expert verifying that the disability prevents him or her from reading printed materials, and the patron must be affiliated with an HDL member that has opted-into the program. Currently, the University of Michigan is the only HDL member institution that has opted-in. We conclude that this use is also protected by the doctrine of fair use.

i.

In applying the Factor One analysis, the district court concluded that "[t]he use of digital copies to facilitate access for print-disabled persons is [a] transformative" use. HathiTrust, 902 F. Supp. 2d at 461. This is a misapprehension; providing expanded access to the print disabled is not "transformative."

As discussed above, a transformative use adds something new to the copyrighted work and does not merely supersede the purposes of the original creation. See Campbell, 510 U.S. at 579. The Authors state that they "write books to be read (or listened to)." Appellants' Br. 34-35. By making copyrighted works available in formats accessible to the disabled, the HDL enables a larger audience to read those works, but the underlying purpose of the HDL's use is the same as the author's original purpose.

Indeed, when the HDL recasts copyrighted works into new formats to be read by the disabled, it appears, at first glance, to be creating derivative works over which the author ordinarily maintains control. See 17 U.S.C. § 106(2). As previously noted, paradigmatic examples of derivative works include translations of the original into a different language, or adaptations of the original into different forms or media. See id. § 101 (defining "derivative work"). The Authors contend that by converting their works into a different, accessible format, the HDL is simply creating a derivative work.

It is true that, oftentimes, the print-disabled audience has no means of obtaining access to the copyrighted works included in the HDL. But, similarly, the non-English-speaking audience cannot gain access to untranslated books written in English and an unauthorized translation is not transformative simply because it enables a new audience to read a work.

This observation does not end the analysis. "While a transformative use generally is more likely to qualify as fair use, `transformative use is not absolutely necessary for a finding of fair use.'" Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., ___ F.3d ___, ___, 2014 WL 2219162, at *7 (2d Cir. 2014) (quoting Campbell, 510 U.S. at 579). We conclude that providing access to the print-disabled is still a valid purpose under Factor One even though it is not transformative. We reach that conclusion for several reasons.

First, the Supreme Court has already said so. As Justice Stevens wrote for the Court: "Making a copy of a copyrighted work for the convenience of a blind person is expressly identified by the House Committee Report as an example of fair use, with no suggestion that anything more than a purpose to entertain or to inform need motivate the copying." Sony Corp. of Am., 464 U.S. at 455 n.40.

Our conclusion is reinforced by the legislative history on which he relied. The House Committee Report that accompanied codification of the fair use doctrine in the Copyright Act of 1976 expressly stated that making copies accessible "for the use of blind persons" posed a "special instance illustrating the application of the fair use doctrine . . . ." H.R. REP. NO. 94-1476, at 73 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5686. The Committee noted that "special [blind-accessible formats] . . . are not usually made by the publishers for commercial distribution." Id. In light of its understanding of the market (or lack thereof) for books accessible to the blind, the Committee explained that "the making of a single copy or phonorecord by an individual as a free service for a blind persons [sic] would properly be considered a fair use under section 107." Id. We believe this guidance supports a finding of fair use in the unique circumstances presented by print-disabled readers.

Since the passage of the 1976 Copyright Act, Congress has reaffirmed its commitment to ameliorating the hardships faced by the blind and the print disabled. In the Americans with Disabilities Act, Congress declared that our "Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals." 42 U.S.C. § 12101(7). Similarly, the Chafee Amendment illustrates Congress's intent that copyright law make appropriate accommodations for the blind and print disabled. See 17 U.S.C. § 121.

ii.

Through the HDL, the disabled can obtain access to copyrighted works of all kinds, and there is no dispute that those works are of the sort that merit protection under the Copyright Act. As a result, Factor Two weighs against fair use. This does not preclude a finding of fair use, however, given our analysis of the other factors. Cf. Davis v. Gap, Inc., 246 F.3d 152, 175 (2d Cir. 2001) ("The second statutory factor, the nature of the copyrighted work . . ., is rarely found to be determinative.").

iii.

Regarding Factor Three, as previously noted, the HDL retains copies as digital image files and as text-only files, which are then stored in four separate locations. The Authors contend that this amount of copying is excessive because the Libraries have not demonstrated their need to retain the digital image files in addition to the text files.

We are unconvinced. The text files are required for text searching and to create text-to-speech capabilities for the blind and disabled. But the image files will provide an additional and often more useful method by which many disabled patrons, especially students and scholars, can obtain access to these works. These image files contain information, such as pictures, charts, diagrams, and the layout of the text on the printed page that cannot be converted to text or speech. None of this is captured by the HDL's text-only copies. Many legally blind patrons are capable of viewing these images if they are sufficiently magnified or if the color contrasts are increased. And other disabled patrons, whose physical impairments prevent them from turning pages or from holding books, may also be able to use assistive devices to view all of the content contained in the image files for a book. For those individuals, gaining access to the HDL's image files—in addition to the text-only files—is necessary to perceive the books fully. Consequently, it is reasonable for the Libraries to retain both the text and image copies.^[6]

iv.

The fourth factor also weighs in favor of a finding of fair use. It is undisputed that the present-day market for books accessible to the handicapped is so insignificant that "it is common practice in the publishing industry for authors to forgo royalties that are generated through the sale of books manufactured in specialized formats for the blind. . . ." Appellants' Br. 34. "[T]he number of accessible books currently available to the blind for borrowing is a mere few hundred thousand titles, a minute percentage of the world's books. In contrast, the HDL contains more than ten million accessible volumes." J.A. 173 ¶ 10 (Maurer Decl.). When considering the 1976 Act, Congress was well aware of this problem. The House Committee Report observed that publishers did not "usually ma[ke]" their books available in specialized formats for the blind. H.R. REP. NO. 94-1476, at 73, 1976 U.S.C.C.A.N. at 5686. That observation remains true today.

Weighing the factors together, we conclude that the doctrine of fair use allows the Libraries to provide full digital access to copyrighted works to their print-disabled patrons.^[7]

3. Preservation

By storing digital copies of the books, the HDL preserves them for generations to come, and ensures that they will still exist when their copyright terms lapse. Under certain circumstances, the HDL also proposes to make one additional use of the digitized works while they remain under copyright: The HDL will permit member libraries to create a replacement copy of a book, to be read and consumed by patrons, if (1) the member already owned an original copy, (2) the member's original copy is lost, destroyed, or stolen, and (3) a replacement copy is unobtainable at a fair price. The Authors claim that this use infringes their copyrights.

Even though the parties assume that this issue is appropriate for our determination, we are not convinced that this is so. The record before the district court does not reflect whether the plaintiffs own copyrights in any works that would be effectively irreplaceable at a fair price by the Libraries and, thus, would be potentially subject to being copied by the Libraries in case of the loss or destruction of an original. The Authors are not entitled to make this argument on behalf of others, because § 501 of "the Copyright Act does not permit copyright holders to choose third parties to bring suits on their behalf." ABKCO Music, 944 F.2d at 980; see also our discussion of standing, supra pp. 12-13.

Because the record before us does not reflect the existence of a non-speculative risk that the HDL might create replacement copies of the plaintiffs' copyrighted work, we do not believe plaintiffs have standing to bring this claim, and this concern does not present a live controversy for adjudication. See Clapper, ___ U.S. at ___, 133 S. Ct. at 1147; Jennifer Matthew Nursing & Rehab. Ctr. v. U.S. Dep't of Health & Human Servs., 607 F.3d 951, 955 (2d Cir. 2010) (noting that we have an "independent obligation" to evaluate subject matter jurisdiction, including whether there is "a live controversy"). Accordingly, we vacate the district court's judgment insofar as it adjudicated this issue without first considering whether plaintiffs have standing to challenge the preservation use of the HDL, and we remand for the district court to so determine.

II. Ripeness of Claims Relating to the Orphan Works Project

The district court also held that the infringement claims asserted in connection with the OWP were not ripe for adjudication because the project has been abandoned and the record contained no information about whether the program will be revived and, if so, what it would look like or whom it would affect. HathiTrust, 902 F. Supp. 2d at 455-56. We agree.

In considering whether a claim is ripe, we consider (1) "the fitness of the issues for judicial decision" and (2) "the hardship to the parties of withholding court consideration." Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 347 (2d Cir. 2005) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)).

The fitness analysis is concerned with whether the issues sought to be adjudicated are contingent on unknowable future events. N.Y. Civil Liberties Union v. Grandeau, 528 F. 3d 122, 132 (2d Cir. 2008). The Authors assert that their OWP claim is fit for judicial decision because it "will not change based upon the particular procedures that [the University of Michigan] ultimately employs to identify orphan works." Appellants' Br. 13. According to the Authors, the legality of the OWP does not depend upon the specific means the Libraries ultimately employ to identify orphan candidates or the time the Libraries wait before making works available. Rather, the Authors believe that any iteration of the OWP that results in the publication of complete copyrighted works is an infringement of copyright.

We are not persuaded that these concerns create a ripe dispute. Even assuming, arguendo, that "[a]ny iteration of the OWP under which copyrighted works are made available for public view and download" would infringe someone's copyright, id., it does not follow that the OWP will inevitably infringe the copyrights held by the remaining plaintiffs in this case.^[8] It is conceivable that, should the University of Michigan ever revive the OWP, the procedures it ultimately implements to identify orphan works would successfully identify and exclude works to which a plaintiff in this suit holds a copyright. Consequently, we cannot say that any of the plaintiffs face a "certainly impending" harm under our ripeness analysis, Clapper, ___ U.S. at ___, 133 S. Ct. at 1147; see also Grandeau, 528 F.3d at 130 n.8.

Nor do we perceive any hardship if decision is withheld. See Grandeau, 528 F.3d at 134. The Authors argue that they would suffer hardship because "there is nothing to stop the Libraries from reinstituting the OWP and then, if owners of the listed works come forward, suspending it again." Appellants' Br. 16.

We disagree. As indicated above, it is far from clear that the University of Michigan or HathiTrust will reinstitute the OWP in a manner that would infringe the copyrights of any proper plaintiffs. If that occurs, the Authors may always return to court. Suffice it to say that "[t]he mere possibility of future injury, unless it is the cause of some present detriment, does not constitute hardship." Grandeau, 528 F.3d at 134 (internal quotation marks omitted). For these reasons, we conclude that the OWP claims are not ripe for adjudication.

CONCLUSION

The judgment of the district court is AFFIRMED, in part, insofar as the district court concluded that certain plaintiffs-appellants lack associational standing; that the doctrine of "fair use" allows defendants-appellees to create a full-text searchable database of copyrighted works and to provide those works in formats accessible to those with disabilities; and that claims predicated upon the Orphan Works Project are not ripe for adjudication. We VACATE the judgment, in part, insofar as it rests on the district court's holding related to the claim of infringement predicated upon defendants-appellees' preservation of copyrighted works, and we REMAND for further proceedings consistent with this opinion.

[1] Pursuant to Federal Rule of Appellate Procedure 43(c)(2), we automatically substitute the current president of the University of California, Janet Napolitano, and the current president of the University of Wisconsin System, Raymond W. Cross, in place of their predecessors-in-office.

[2] The Clerk of Court is directed to amend the caption as set forth above.

[3] Separate from the HDL, one copy is also kept by Google. Google's use of its copy is the subject of a separate lawsuit currently pending in this Court. See Authors Guild, Inc. v. Google, Inc., 721 F.3d 132 (2d Cir. 2013), on remand, 954 F. Supp. 2d 282 (S.D.N.Y. 2013), appeal docketed, No. 13-4829 (2d Cir. Dec. 23, 2013).

[4] Plaintiffs argue that the fair use defense is inapplicable to the activities at issue here, because the Copyright Act includes another section, 108, which governs "Reproduction [of copyrighted works] by Libraries . . ." 17 U.S.C. § 108. However, section 108 also includes a "savings clause," which states, "Nothing in this section in any way affects the right of fair use as provided by section 107. . . ." § 108(f)(4). Thus, we do not construe § 108 as foreclosing our analysis of the Libraries' activities under fair use, and we proceed with that analysis.

[5] The HDL also creates digital copies of the images of each page of the books. As the Libraries acknowledge, the HDL does not need to retain these copies to enable the full-text search use. We discuss the fair-use justification for these copies in the context of the disability-access use, see infra pp. 29-30.

[6] The Authors also complain that the HDL creates and maintains four separate copies of the copyrighted works at issue. Appellants' Br. 27-28. For reasons discussed in the full-text search section, this does not preclude a finding of fair use. See supra pp. 20-22.

[7] In light of our holding, we need not consider whether the disability-access use is protected under the Chafee Amendment, 17 U.S.C. § 121.

[8] We note that, in addition to our conclusion about ripeness, the same reasoning leads us to conclude that the remaining plaintiffs lack standing to bring this claim, see our discussion of standing, supra pp. 12-13.