No. 81-1687.

SONY CORPORATION OF AMERICA et al. v. UNIVERSAL CITY STUDIOS, INC., et al.

Decided January 17, 1984

Argued January 18, 1983 — Reargued October 3, 1983

with whom Justice Marshall, Justice Powell, and Justice Rehnquist join,

Dean C. Dunlavey reargued the cause for petitioners. With him on the briefs were Donald E. Sloan and Marshall Rutter.

Stephen A. Kroft reargued the cause for respondents. With him on the brief was Sondra E. Berchin.*

*

Briefs of amici curiae urging reversal were filed for the Virginia Citi­zens’ Consumer Council, Inc., et al. by William A. Dobrovir; for the Amer­ican Library Association by Newton N. Minow; for the Consumer Elec­tronics Group by J. Edward Day; for the Educators Ad Hoc Committee on Copyright Law by Michael H. Cardozo, August W. Steinhilber, and Gwen­dolyn H. Gregory; for General Electric Co. et al. by Alfred B. Engelberg, Morton Amster, Jesse Rothstein, and Joel E. Lutzker; for Hitachi, Ltd., et al. by John W. Armagost and Craig B. Jorgensen; for McCann-­Erickson, Inc., et al. by John A. Donovan, A. Howard Matz, and David Fleischer; for Minnesota Mining and Manufacturing Co. et al. by Sidney A. Diamond and Grier Curran Raclin; for the National Retail Merchants As­sociation by Peter R. Stem, TheodoreS. Steingut, and Robert A. Weiner; for Sanyo Electric, Inc., by Anthony Liebig; for Sears, Roebuck and Co. by Max L. Gillam and Mary E. Woytek; for TDK Electronics Co., Ltd., by Ko-Yung Tung and Adam Yarmolinsky; for Toshiba Corp. et al. by Don­ald J. Zoeller and Herve Gouraige; for Pfizer Inc. by Steven C. Kany; and for Viare Publishing by Peter F. Marvin.

Briefs of amici curiae urging affirmance were filed for the Association of American Publishers, Inc., et al. by Charles H. Lieb and Jon A. Baum-­garten; for the Authors League of America, Inc., by Irwin Karp; for CBS Inc. by Lloyd N. Cutler, Louis R. Cohen, and George Vradenburg III; for Creators and Distributors of Programs by Stuart Robinowitz and Andrew J. Peck; for the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, by Leo Geffner; for the Motion Picture Association of America, Inc., by Richard M. Cooper, Ellen S. Huvelle, and William Nix; for the National Music Publishers’ Association, Inc., by Jon A. Baumgarten; for the Recording Industry Association of America, Inc., by James F. Fitzpat­rick, Cary H. Sherman, and Ernest S. Meyers; for Volunteer Lawyers for the Arts, Inc., by I. Fred Koenigsberg; and for the Writers Guild of Amer­ica, West, Inc., et al. by Paul P. Selvin, Jerome B. Lurie, and Paul S. Berger.

Briefs of amici curiae were filed for the State of Missouri et al. by John Ashcroft, Attorney General of Missouri, and by the Attorneys General for their respective States as follows: Charles A. Graddick of Alabama, John Steven Clark of Arkansas, Michael J. Bowers of Georgia, Tany S. Hong of Hawaii, Tyrone C. Fahner of Illinois, Thomas J. Miller of Iowa, William J. Guste, Jr., oí Louisiana, William A. Attain of Mississippi, Michael T. Greely oí Montana, Rufus L. Edmisten of North Carolina, William J. Brown of Ohio, Jan Eric Cartwright of Oklahoma, Dennis J. Roberts II of Rhode Island, John J. Easton of Vermont, Gerald L. Battles of Virginia, and Bronson C. La Follette of Wisconsin; and for the Committee on Copy­right and Literary Property of the Association of the Bar of the City of New York by Michael S. Oberman and David H. Marks.

Justice Stevens

delivered the opinion of the Court.

Petitioners manufacture and sell home video tape record­ers. Respondents own the copyrights on some of the tele­vision programs that are broadcast on the public airwaves. Some members of the general public use video tape recorders sold by petitioners to record some of these broadcasts, as well as a large number of other broadcasts. The question presented is whether the sale of petitioners’ copying equip­ment to the general public violates any of the rights con­ferred upon respondents by the Copyright Act.

Respondents commenced this copyright infringement ac­tion against petitioners in the United States District Court for the Central District of California in 1976. Respondents alleged that some individuals had used Betamax video tape recorders (VTR’s) to record some of respondents’ copy­righted works which had been exhibited on commercially sponsored television and contended that these individuals had thereby infringed respondents’ copyrights. Respond­ents further maintained that petitioners were liable for the copyright infringement allegedly committed by Betamax con­sumers because of petitioners’ marketing of the Betamax VTR’s.1 Respondents sought no relief against any Beta-­max consumer. Instead, they sought money damages and an equitable accounting of profits from petitioners, as well as an injunction against the manufacture and marketing of Betamax VTR’s.

After a lengthy trial, the District Court denied respond­ents all the relief they sought and entered judgment for peti­tioners. 480 F. Supp. 429 (1979). The United States Court of Appeals for the Ninth Circuit reversed the District Court’s judgment on respondents’ copyright claim, holding petition­ers liable for contributory infringement and ordering the District Court to fashion appropriate relief. 659 F. 2d 963 (1981). We granted certiorari, 457 U. S. 1116 (1982); since we had not completed our study of the case last Term, we or­dered reargument, 463 U. S. 1226 (1983). We now reverse.

An explanation of our rejection of respondents’ unprece­dented attempt to impose copyright liability upon the distrib­utors of copying equipment requires a quite detailed recita­tion of the findings of the District Court. In summary, those findings reveal that the average member of the public uses a VTR principally to record a program he cannot view as it is being televised and then to watch it once at a later time. This practice, known as “time-shifting,” enlarges the tele­vision viewing audience. For that reason, a significant amount of television programming may be used in this man­ner without objection from the owners of the copyrights on the programs. For the same reason, even the two respond­ents in this case, who do assert objections to time-shifting in this litigation, were unable to prove that the practice has im­paired the commercial value of their copyrights or has cre­ated any likelihood of future harm. Given these findings, there is no basis in the Copyright Act upon which respond­ents can hold petitioners liable for distributing VTR’s to the general public. The Court of Appeals’ holding that respond­ents are entitled to enjoin the distribution of VTR’s, to collect royalties on the sale of such equipment, or to obtain other relief, if affirmed, would enlarge the scope of respondents’ statutory monopolies to encompass control over an article of commerce that is not the subject of copyright protection. Such an expansion of the copyright privilege is beyond the limits of the grants authorized by Congress.

The two respondents m this action, Universal City Studios, Inc., and Walt Disney Productions, produce and hold the copyrights on a substantial number of motion pictures and other audiovisual works. In the current marketplace, they can exploit their rights in these works in a number of ways: by authorizing theatrical exhibitions, by licensing limited showings on cable and network television, by selling syn­dication rights for repeated airings on local television sta­tions, and by marketing programs on prerecorded videotapes or videodiscs. Some works are suitable for exploitation through all of these avenues, while the market for other works is more limited.

Petitioner Sony manufactures millions of Betamax video tape recorders and markets these devices through numerous retail establishments, some of which are also petitioners in this action.2 Sony’s Betamax VTR is a mechanism consisting of three basic components: (1) a tuner, which receives elec­tromagnetic signals transmitted over the television band of the public airwaves and separates them into audio and visual signals; (2) a recorder, which records such signals on a mag­netic tape; and (3) an adapter, which converts the audio and visual signals on the tape into a composite signal that can be received by a television set.

Several capabilities of the machine are noteworthy. The separate tuner in the Betamax enables it to record a broad­cast off one station while the television set is tuned to another channel, permitting the viewer, for example, to watch two simultaneous news broadcasts by watching one “live” and re­cording the other for later viewing. Tapes may be reused, and programs that have been recorded may be erased either before or after viewing. A timer in the Betamax can be used to activate and deactivate the equipment at predetermined times, enabling an intended viewer to record programs that are transmitted when he or she is not at home. Thus a per­son may watch a program at home in the evening even though it was broadcast while the viewer was at work during the afternoon. The Betamax is also equipped with a pause button and a fast-forward control. The pause button, when depressed, deactivates the recorder until it is released, thus enabling a viewer to omit a commercial advertisement from the recording, provided, of course, that the viewer is present when the program is recorded. The fast-forward control enables the viewer of a previously recorded program to run the tape rapidly when a segment he or she does not desire to see is being played back on the television screen.

The respondents and Sony both conducted surveys of the way the Betamax machine was used by several hundred owners during a sample period in 1978. Although there were some differences in the surveys, they both showed that the primary use of the machine for most owners was “time-­shifting” — the practice of recording a program to view it once at a later time, and thereafter erasing it. Time-shifting en­ables viewers to see programs they otherwise would miss because they are not at home, are occupied with other tasks, or are viewing a program on another station at the time of a broadcast that they desire to watch. Both surveys also showed, however, that a substantial number of interviewees had accumulated libraries of tapes.3 Sony’s survey indicated that over 80% of the interviewees watched at least as much regular television as they had before owning a Betamax.4 Re­spondents offered no evidence of decreased television viewing by Betamax owners.5

Sony introduced considerable evidence describing televi­sion programs that could be copied without objection from any copyright holder, with special emphasis on sports, reli­gious, and educational programming,. For example, their survey indicated that 7.3% of all Betamax use is to record sports events, and representatives of professional baseball, football, basketball, and hockey testified that they had no ob­jection to the recording of their televised events for home use.6

Respondents offered opinion evidence concerning the fu­ture impact of the unrestricted sale of VTR’s on the commer­cial value of their copyrights. The District Court found, however, that they had failed to prove any likelihood of future harm from the use of VTR’s for time-shifting. 480 F. Supp., at 469.

The District Court’s Decision

The lengthy trial of the case in the District Court con­cerned the private, home use of VTR’s for recording pro­grams broadcast on the public airwaves without charge to the viewer.7 No issue concerning the transfer of tapes to other persons, the use of home-recorded tapes for public perform­ances, or the copying of programs transmitted on pay or cable television systems was raised. See id., at 432-433, 442.

The District Court concluded that noncommercial home use recording of material broadcast over the public airwaves was a fair use of copyrighted works and did not constitute copy­right infringement. It emphasized the fact that the material was broadcast free to the public at large, the noncommercial character of the use, and the private character of the activity conducted entirely within the home. Moreover, the court found that the purpose of this use served the public interest in increasing access to television programming, an interest that “is consistent with the First Amendment policy of pro­viding the fullest possible access to information through the public airwaves. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 102.” Id., at 454.8 Even when an entire copyrighted work was recorded, the District Court regarded the copying as fair use “because there is no accompanying reduction in the market for ‘plain­tiff’s original work.’” Ibid.

As an independent ground of decision, the District Court also concluded that Sony could not be held liable as a con­tributory infringer even if the home use of a VTR was consid­ered an infringing use. The District Court noted that Sony had no direct involvement with any Betamax purchasers who recorded copyrighted works off the air. Sony’s advertising was silent on the subject of possible copyright infringement, but its instruction booklet contained the following statement:

“Television programs, films, videotapes and other ma­terials may be copyrighted. Unauthorized recording of such material may be contrary to the provisions of the United States copyright laws.” Id., at 436.

The District Court assumed that Sony had constructive knowledge of the probability that the Betamax machine would be used to record copyrighted programs, but found that Sony merely sold a “product capable of a variety of uses, some of them allegedly infringing.” Id., at 461. It reasoned:

“Selling a staple article of commerce — e. g., a type­writer, a recorder, a camera, a photocopying machine— technically contributes to any infringing use subse­quently made thereof, but this kind of ‘contribution,’ if deemed sufficient as a basis for liability, would expand the theory beyond precedent and arguably beyond judi­cial management.

“.. . Commerce would indeed be hampered if manufac­turers of staple items were held liable as contributory in-­fringers whenever they ‘constructively’ knew that some purchasers on some occasions would use their product for a purpose which a court later deemed, as a matter of first impression, to be an infringement.” Ibid.

Finally, the District Court discussed the respondents’ prayer for injunctive relief, noting that they had asked for an injunction either preventing the future sale of Betamax ma­chines, or requiring that the machines be rendered incapable of recording copyrighted works off the air. The court stated that it had “found no case in which the manufacturers, dis­tributors, retailers and advertisers of the instrument en­abling the infringement were sued by the copyright holders,” and that the request for relief in this case “is unique.” Id., at 465.

It concluded that an injunction was wholly inappropriate because any possible harm to respondents was outweighed by the fact that “the Betamax could still legally be used to record noncopyrighted material or material whose owners consented to the copying. An injunction would deprive the public of the ability to use the Betamax for this noninfringing off-the-air recording.” Id., at 468.

The Court of Appeals’ Decision

The Court of Appeals reversed the District Court’s judg­ment on respondents’ copyright claim. It did not set aside any of the District Court’s findings of fact. Rather, it con­cluded as a matter of law that the home use of a VTR was not a fair use because it was not a “productive use.”9 It there­fore held that it was unnecessary for plaintiffs to prove any harm to the potential market for the copyrighted works, but then observed that it seemed clear that the cumulative effect of mass reproduction made possible by VTR’s would tend to diminish the potential market for respondents’ works. 659 F. 2d, at 974.

On the issue of contributory infringement, the Court of Ap­peals first rejected the analogy to staple articles of commerce such as tape recorders or photocopying machines. It noted that such machines “may have substantial benefit for some purposes” and do not “even remotely raise copyright prob­lems.” Id., at 975. VTR’s, however, are sold “for the pri­mary purpose of reproducing television programming” and “[virtually all” such programming is copyrighted material. Ibid. The Court of Appeals concluded, therefore, that VTR’s were not suitable for any substantial noninfringing use even if some copyright owners elect not to enforce their rights.

The Court of Appeals also rejected the District Court’s re­liance on Sony’s lack of knowledge that home use constituted infringement. Assuming that the statutory provisions defin­ing the remedies for infringement applied also to the non-­statutory tort of contributory infringement, the court stated that a defendant’s good faith would merely reduce his dam­ages liability but would not excuse the infringing conduct. It held that Sony was chargeable with knowledge of the homeowner’s infringing activity because the reproduction of copyrighted materials was either “the most conspicuous use” or “the major use” of the Betamax product. Ibid.

On the matter of relief, the Court of Appeals concluded that “statutory damages may be appropriate” and that the District Court should reconsider its determination that an in­junction would not be an appropriate remedy; and, referring to “the analogous photocopying area,” suggested that a con­tinuing royalty pursuant to a judicially created compulsory license may very well be an acceptable resolution of the relief issue. Id., at 976.

II

Article I, § 8, of the Constitution provides:

“The Congress shall have Power ... 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 monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and in­ventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.

“The copyright law, like the patent statutes, makes re­ward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S. 123, 127, Chief Justice Hughes spoke as follows respecting the copyright mo­nopoly granted by Congress, ‘The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the pub­lic from the labors of authors.’ It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.” United States v. Paramount Pictures, Inc., 334 U. S. 131, 158 (1948).

As the text of the Constitution makes plain, it is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or to in­ventors in order to give the public appropriate access to their work product. Because this task involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand, our pat­ent and copyright statutes have been amended repeatedly.10

From its beginning, the law of copyright has developed in response to significant changes in technology.11 Indeed, it was the invention of a new form of copying equipment — the printing press — that gave rise to the original need for copy­right protection.12 Repeatedly, as new developments have occurred in this country, it has been the Congress that has fashioned the new rules that new technology made necessary. Thus, long before the enactment of the Copyright Act of 1909, 35 Stat. 1075, it was settled that the protection given to copyrights is wholly statutory. Wheaton v. Peters, 8 Pet. 591, 661-662 (1834). The remedies for infringement “are only those prescribed by Congress.” Thompson v. Hub­bard, 131 U. S. 123, 151 (1889).

The judiciary’s reluctance to expand the protections af­forded by the copyright without explicit legislative guidance is a recurring theme. See, e. g., Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U. S. 394 (1974); Fortnightly Corp. v. United Artists Television, Inc., 392 U. S. 390 (1968); White-Smith Music Publishing Co. v. Apollo Co., 209 U. S. 1 (1908); Williams & Wilkins Co. v. United States, 203 Ct. Cl. 74, 487 F. 2d 1345 (1973), aff’d by an equally divided Court, 420 U. S. 376 (1975). Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the con­stitutional authority and the institutional ability to accom­modate fully the varied permutations of competing interests that are inevitably implicated by such new technology.

In a case like this, in which Congress has not plainly marked our course, we must be circumspect in construing the scope of rights created by a legislative enactment which never contemplated such a calculus of interests. In doing so, we are guided by Justice Stewart’s exposition of the correct approach to ambiguities in the law of copyright:

“The limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. ‘The sole interest of the United States and the primary object in conferring the monopoly,’ this Court has said, ‘lie in the general bene­fits derived by the public from the labors of authors.’ Fox Film Corp. v. Doyal, 286 U. S. 123, 127. See Ken­dall v. Winsor, 21 How. 322, 327-328; Grant v. Ray­mond, 6 Pet. 218, 241-242. When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose.” Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 156 (1975) (footnotes omitted).

Copyright protection “subsists ... in original works of authorship fixed in any tangible medium of expression.” 17 U. S. C. § 102(a) (1982 ed.). This protection has never ac­corded the copyright owner complete control over all possible uses of his work.13 Rather, the Copyright Act grants the copyright holder “exclusive” rights to use and to authorize the use of his work in five qualified ways, including repro­duction of the copyrighted work in copies. § 106.14 All re­productions of the work, however, are not within the exclu­sive domain of the copyright owner; some are in the public domain. Any individual may reproduce a copyrighted work for a “fair use”; the copyright owner does not possess the exclusive right to such a use. Compare § 106 with § 107.

“Anyone who violates any of the exclusive rights of the copyright owner,” that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copy­righted work in one of the five ways set forth in the statute, “is an infringer of the copyright.” § 501(a). Conversely, anyone who is authorized by the copyright owner to use the copyrighted work in a way specified in the statute or who makes a fair use of the work is not an infringer of the copy­right with respect to such use.

The Copyright Act provides the owner of a copyright with a potent arsenal of remedies against an infringer of his work, including an injunction to restrain the infringer from violat­ing his rights, the impoundment and destruction of all re­productions of his work made in violation of his rights, a recovery of his actual damages and any additional profits re­alized by the infringer or a recovery of statutory damages, and attorney’s fees. §§502-505.15

The two respondents in this case do not seek relief against the Betamax users who have allegedly infringed their copy­rights. Moreover, this is not a class action on behalf of all copyright owners who license their works for television broadcast, and respondents have no right to invoke whatever rights other copyright holders may have to bring infringe­ment actions based on Betamax copying of their works.16 As was made clear by their own evidence, the copying of the re­spondents’ programs represents a small portion of the total use of VTR’s. It is, however, the taping of respondents’ own copyrighted programs that provides them with standing to charge Sony with contributory infringement. To prevail, they have the burden of proving that users of the Betamax have infringed their copyrights and that Sony should be held responsible for that infringement.

III

The Copyright Act does not expressly render anyone liable for infringement committed by another. In contrast, the Patent Act expressly brands anyone who “actively induces infringement of a patent” as an infringer, 35 U. S. C. § 271(b), and further imposes liability on certain individuals labeled “contributory” infringers, § 271(c). The absence of such ex­press language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity.17 For vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringe­ment is merely a species of the broader problem of identify­ing the circumstances in which it is just to hold one individual accountable for the actions of another.

Such circumstances were plainly present in Kalem Co. v. Harper Brothers, 222 U. S. 55 (1911), the copyright decision of this Court on which respondents place their principal reli­ance. In Kalem, the Court held that the producer of an un­authorized film dramatization of the copyrighted book Ben Hur was liable for his sale of the motion picture to jobbers, who in turn arranged for the commercial exhibition of the film. Justice Holmes, writing for the Court, explained:

“The defendant not only expected but invoked by ad­vertisement the use of its films for dramatic reproduc­tion of the story. That was the most conspicuous pur­pose for which they could be used, and the one for which especially they were made. If the defendant did not contribute to the infringement it is impossible to do so except by taking part in the final act. It is liable on principles recognized in every part of the law.” Id., at 62-63.

The use for which the item sold in Kalem had been “espe­cially” made was, of course, to display the performance that had already been recorded upon it. The producer had per­sonally appropriated the copyright owner’s protected work and, as the owner of the tangible medium of expression upon which the protected work was recorded, authorized that use by his sale of the film to jobbers. But that use of the film was not his to authorize: the copyright owner possessed the exclusive right to authorize public performances of his work. Further, the producer personally advertised the unau­thorized public performances, dispelling any possible doubt as to the use of the film which he had authorized.

Respondents argue that Kalem stands for the proposition that supplying the “means” to accomplish an infringing activ­ity and encouraging that activity through advertisement are sufficient to establish liability for copyright infringement. This argument rests on a gross generalization that cannot withstand scrutiny. The producer in Kalem did not merely provide the “means” to accomplish an infringing activity; the producer supplied the work itself, albeit in a new medium of expression. Sony in the instant case does not supply Betamax consumers with respondents’ works; respondents do. Sony supplies a piece of equipment that is generally capable of copying the entire range of programs that may be televised: those that are uncopyrighted, those that are copyrighted but may be copied without objection from the copyright holder, and those that the copyright holder would prefer not to have copied. The Betamax can be used to make authorized or unauthorized uses of copyrighted works, but the range of its potential use is much broader than the particular infringing use of the film Ben Hur involved in Kalem. Kalem does not support respondents’ novel theory of liability.

Justice Holmes stated that the producer had “contributed” to the infringement of the copyright, and the label “contribu­tory infringement” has been applied in a number of lower court copyright cases involving an ongoing relationship be­tween the direct infringer and the contributory infringer at the time the infringing conduct occurred. In such cases, as in other situations in which the imposition of vicarious lia­bility is manifestly just, the “contributory” infringer was in a position to control the use of copyrighted works by others and had authorized the use without permission from the copyright owner.18 This case, however, plainly does not fall in that category. The only contact between Sony and the users of the Betamax that is disclosed by this record occurred at the moment of sale. The District Court expressly found that “no employee of Sony, Sonam or DDBI had either direct involvement with the allegedly infringing activity or direct contact with purchasers of Betamax who recorded copy­righted works off-the-air.” 480 F. Supp., at 460. And it further found that “there was no evidence that any of the copies made by Griffiths or the other individual witnesses in this suit were influenced or encouraged by [Sony’s] adver­tisements.” Ibid.

If vicarious liability is to be imposed on Sony in this case, it must rest on the fact that it has sold equipment with con­structive knowledge of the fact that its customers may use that equipment to make unauthorized copies of copyrighted material. There is no precedent in the law of copyright for the imposition of vicarious liability on such a theory. The closest analogy is provided by the patent law cases to which it is appropriate to refer because of the historic kinship between patent law and copyright law.19

In the Patent Act both the concept of infringement and the concept of contributory infringement are expressly de­fined by statute.20 The prohibition against contributory in­fringement is confined to the knowing sale of a component especially made for use in connection with a particular pat­ent. There is no suggestion in the statute that one patentee may object to the sale of a product that might be used in con­nection with other patents. Moreover, the Act expressly provides that the sale of a “staple article or commodity of commerce suitable for substantial noninfringing use” is not contributory infringement. 35 U. S. C. § 271(c).

When a charge of contributory infringement is predicated entirely on the sale of an article of commerce that is used by the purchaser to infringe a patent, the public interest in ac­cess to that article of commerce is necessarily implicated. A finding of contributory infringement does not, of course, re­move the article from the market altogether; it does, how­ever, give the patentee effective control over the sale of that item. Indeed, a finding of contributory infringement is nor­mally the functional equivalent of holding that the disputed article is within the monopoly granted to the patentee.21

For that reason, in contributory infringement cases arising under the patent laws the Court has always recognized the critical importance of not allowing the patentee to extend his monopoly beyond the limits of his specific grant. These cases deny the patentee any right to control the distribution of unpatented articles unless they are “unsuited for any com­mercial noninfringing use.” Dawson Chemical Co. v. Rohm & Hass Co., 448 U. S. 176, 198 (1980). Unless a commodity “has no use except through practice of the patented method,” id., at 199, the patentee has no right to claim that its distri­bution constitutes contributory infringement. “To form the basis for contributory infringement the item must almost be uniquely suited as a component of the patented invention.” P. Rosenberg, Patent Law Fundamentals § 17.02[2] (2d ed. 1982). “[A] sale of an article which though adapted to an in­fringing use is also adapted to other and lawful uses, is not enough to make the seller a contributory infringer. Such a rule would block the wheels of commerce.” Henry v. A. B. Dick Co., 224 U. S. 1, 48 (1912), overruled on other grounds, Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 517 (1917).

We recognize there are substantial differences between the patent and copyright laws. But in both areas the contribu­tory infringement doctrine is grounded on the recognition that adequate protection of a monopoly may require the courts to look beyond actual duplication of a device or publi­cation to the products or activities that make such duplication possible. The staple article of commerce doctrine must strike a balance between a copyright holder’s legitimate de­mand for effective — not merely symbolic — protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.

IV

The question is thus whether the Betamax is capable of commercially significant noninfringing uses. In order to resolve that question, we need not explore all the different potential uses of the machine and determine whether or not they would constitute infringement. Rather, we need only consider whether on the basis of the facts as found by the District Court a significant number of them would be non-­infringing. Moreover, in order to resolve this case we need not give precise content to the question of how much use is commercially significant. For one potential use of the Beta-­max plainly satisfies this standard, however it is understood: private, noncommercial time-shifting in the home. It does so both (A) because respondents have no right to prevent other copyright holders from authorizing it for their pro­grams, and (B) because the District Court’s factual findings reveal that even the unauthorized home time-shifting of respondents’ programs is legitimate fair use.

A. Authorized, Time-Shifting

Each of the respondents owns a large inventory of valuable copyrights, but in the total spectrum of television program­ming their combined market share is small. The exact per­centage is not specified, but it is well below 10%.22 If they were to prevail, the outcome of this litigation would have a significant impact on both the producers and the viewers of the remaining 90% of the programming in the Nation. No doubt, many other producers share respondents’ concern about the possible consequences of unrestricted copying. Nevertheless the findings of the District Court make it clear that time-shifting may enlarge the total viewing audience and that many producers are willing to allow private time-shifting to continue, at least for an experimental time period.23

The District Court found:

“Even if it were deemed that home-use recording of copyrighted material constituted infringement, the Beta-­max could still legally be used to record noncopyrighted material or material whose owners consented to the copying. An injunction would deprive the public of the ability to use the Betamax for this noninfringing off-the-­air recording.

“Defendants introduced considerable testimony at trial about the potential for such copying of sports, re­ligious, educational and other programming. This in­cluded testimony from representatives of the Offices of the Commissioners of the National Football, Basketball, Baseball and Hockey Leagues and Associations, the Ex­ecutive Director of National Religious Broadcasters and various educational communications agencies. Plaintiffs attack the weight of the testimony offered and also con­tend that an injunction is warranted because infringing uses outweigh noninfringing uses.

“Whatever the future percentage of legal versus il­legal home-use recording might be, an injunction which seeks to deprive the public of the very tool or article of commerce capable of some noninfringing use would be an extremely harsh remedy, as well as one unprecedented in copyright law.” 480 F. Supp., at 468.

Although the District Court made these statements in the context of considering the propriety of injunctive relief, the statements constitute a finding that the evidence concerning “sports, religious, educational and other programming” was sufficient to establish a significant quantity of broadcasting whose copying is now authorized, and a significant potential for future authorized copying. That finding is amply sup­ported by the record. In addition to the religious and sports officials identified explicitly by the District Court,24 two items in the record deserve specific mention.

First is the testimony of John Kenaston, the station man­ager of Channel 58, an educational station in Los Angeles affiliated with the Public Broadcasting Service. He ex­plained and authenticated the station’s published guide to its programs.25 For each program, the guide tells whether un­limited home taping is authorized, home taping is authorized subject to certain restrictions (such as erasure within seven days), or home taping is not authorized at all. The Spring 1978 edition of the guide described 107 programs. Sixty-two of those programs or 58% authorize some home taping. Twenty-one of them or almost 20% authorize unrestricted home taping.26

Second is the testimony of Fred Rogers, president of the corporation that produces and owns the copyright on Mister Rogers’ Neighborhood. The program is carried by more public television stations than any other program. Its audi­ence numbers over 3,000,000 families a day. He testified that he had absolutely no objection to home taping for non­commercial use and expressed the opinion that it is a real service to families to be able to record children’s programs and to show them at appropriate times.27

If there are millions of owners of VTR’s who make copies of televised sports events, religious broadcasts, and educational programs such as Mister Rogers’ Neighborhood, and if the proprietors of those programs welcome the practice, the busi­ness of supplying the equipment that makes such copying fea­sible should not be stifled simply because the equipment is used by some individuals to make unauthorized reproductions of respondents’ works. The respondents do not represent a class composed of all copyright holders. Yet a finding of con­tributory infringement would inevitably frustrate the inter­ests of broadcasters in reaching the portion of their audience that is available only through time-shifting.

Of course, the fact that other copyright holders may wel­come the practice of time-shifting does not mean that re­spondents should be deemed to have granted a license to copy their programs. Third-party conduct would be wholly irrel­evant in an action for direct infringement of respondents’ copyrights. But in an action for contributory infringement against the seller of copying equipment, the copyright holder may not prevail unless the relief that he seeks affects only his programs, or unless he speaks for virtually all copyright hold­ers with an interest in the outcome. In this case, the record makes it perfectly clear that there are many important pro­ducers of national and local television programs who find nothing objectionable about the enlargement in the size of the television audience that results from the practice of time-­shifting for private home use.28 The seller of the equipment that expands those producers’ audiences cannot be a con­tributory infringer if, as is true in this case, it has had no direct involvement with any infringing activity.

B. Unauthorized Time-Shifting

Even unauthorized uses of a copyrighted work are not nec­essarily infringing. An unlicensed use of the copyright is not an infringement unless it conflicts with one of the specific ex­clusive rights conferred by the copyright statute. Twentieth Century Music Corp. v. Aiken, 422 U. S., at 154-155. More­over, the definition of exclusive rights in § 106 of the present Act is prefaced by the words “subject to sections 107 through 118.” Those sections describe a variety of uses of copy­righted material that “are not infringements of copyright” “notwithstanding the provisions of section 106.” The most pertinent in this case is § 107, the legislative endorsement of the doctrine of “fair use.”29

That section identifies various factors30 that enable a court to apply an “equitable rule of reason” analysis to particular claims of infringement.31 Although not conclusive, the first factor requires that “the commercial or nonprofit character of an activity” be weighed in any fair use decision.32 If the Betamax were used to make copies for a commercial or profit-­making purpose, such use would presumptively be unfair. The contrary presumption is appropriate here, however, be­cause the District Court’s findings plainly establish that time-­shifting for private home use must be characterized as a noncommercial, nonprofit activity. Moreover, when one con­siders the nature of a televised copyrighted audiovisual work, see 17 U. S. C. § 107(2) (1982 ed.), and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact that the entire work is reproduced, see § 107(3), does not have its ordinary effect of militating against a finding of fair use.33

This is not, however, the end of the inquiry because Con­gress has also directed us to consider “the effect of the use upon the potential market for or value of the copyrighted work.” §107(4). The purpose of copyright is to create incentives for creative effort. Even copying for noncom­mercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create. The prohibition of such noncommercial uses would merely inhibit access to ideas without any countervailing benefit.34

Thus, although every commercial use of copyrighted mate­rial is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncom­mercial uses are a different matter. A challenge to a non­commercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it nec­essary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evi­dence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated.

In this case, respondents failed to carry their burden with regard to home time-shifting. The District Court described respondents’ evidence as follows:

“Plaintiffs’ experts admitted at several points in the trial that the time-shifting without librarying would re­sult in ‘not a great deal of harm.’ Plaintiffs’ greatest concern about time-shifting is with ‘a point of important philosophy that transcends even commercial judgment.’ They fear that with any Betamax usage, ‘invisible bound­aries’ are passed: ‘the copyright owner has lost control over his program.’” 480 F. Supp., at 467.

Later in its opinion, the District Court observed:

“Most of plaintiffs’ predictions of harm hinge on specu­lation about audience viewing patterns and ratings, a measurement system which Sidney Sheinberg, MCA’s president, calls a ‘black art’ because of the significant level of imprecision involved in the calculations.” Id., at 469.35

There was no need for the District Court to say much about past harm. “Plaintiffs have admitted that no actual harm to their copyrights has occurred to date.” Id., at 451.

On the question of potential future harm from time-shifting, the District Court offered a more detailed analysis of the evidence. It rejected respondents’ “fear that persons ‘watch­ing’ the original telecast of a program will not be meas­ured in the live audience and the ratings and revenues will decrease,” by observing that current measurement technol­ogy allows the Betamax audience to be reflected. Id., at 466.36 It rejected respondents’ prediction “that live televi­sion or movie audiences will decrease as more people watch Betamax tapes as an alternative,” with the observation that “[tjhere is no factual basis for [the underlying] assumption.” Ibid}37 It rejected respondents’ “fear that time-shifting will reduce audiences for telecast reruns,” and concluded instead that “given current market practices, this should aid plain­tiffs rather than harm them.” Ibid.38 And it declared that respondents’ suggestion that “theater or film rental exhi­bition of a program will suffer because of time-shift recording of that program” “lacks merit.” Id., at 467.39

After completing that review, the District Court restated its overall conclusion several times, in several different ways. “Harm from time-shifting is speculative and, at best, mini­mal.” Ibid. “The audience benefits from the time-shifting capability have already been discussed. It is not implausible that benefits could also accrue to plaintiffs, broadcasters, and advertisers, as the Betamax makes it possible for more per­sons to view their broadcasts.” Ibid. “No likelihood of harm was shown at trial, and plaintiffs admitted that there had been no actual harm to date.” Id., at 468-469. “Testi­mony at trial suggested that Betamax may require adjust­ments in marketing strategy, but it did not establish even a likelihood of harm.” Id., at 469. “Television production by plaintiffs today is more profitable than it has ever been, and, in five weeks of trial, there was no concrete evidence to suggest that the Betamax will change the studios’ financial picture.” Ibid.

The District Court’s conclusions are buttressed by the fact that to the extent time-shifting expands public access to freely broadcast television programs, it yields societal bene­fits. In Community Television of Southern California v. Gottfried, 459 U. S. 498, 508, n. 12 (1983), we acknowledged the public interest in making television broadcasting more available. Concededly, that interest is not unlimited. But it supports an interpretation of the concept of “fair use” that requires the copyright holder to demonstrate some likelihood of harm before he may condemn a private act of time-shifting as a violation of federal law.

When these factors are all weighed in the “equitable rule of reason” balance, we must conclude that this record amply supports the District Court’s conclusion that home time-­shifting is fair use. In light of the findings of the Dis­trict Court regarding the state of the empirical data, it is clear that the Court of Appeals erred in holding that the statute as presently written bars such conduct.40

In summary, the record and findings of the District Court lead us to two conclusions. First, Sony demonstrated a sig­nificant likelihood that substantial numbers of copyright hold­ers who license their works for broadcast on free television would not object to having their broadcasts time-shifted by private viewers. And second, respondents failed to demon­strate that time-shifting would cause any likelihood of non-­minimal 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 respondents’ copyrights.

V

“The direction of Art. I is that Congress shall have the power to promote the progress of science and the useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress.” Deepsouth Packing Co. v. Laitram Corp., 406 U. S. 518, 530 (1972).

One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copy­ing possible.

It may well be that Congress will take a fresh look at this new technology, just as it so often has examined other inno­vations in the past. But it is not our job to apply laws that have not yet been written. Applying the copyright statute, as it now reads, to the facts as they have been developed in this case, the judgment of the Court of Appeals must be reversed.

It is so ordered.

1

The respondents also asserted causes of action under state law and § 43(a) of the Trademark Act of 1946, 60 Stat. 441, 15 U. S. C. § 1125(a). These claims are not before this Court.

2

The four retailers are Carter Hawley Hales Stores, Inc., Associated Dry Goods Corp., Federated Department Stores, Inc., and Henry’s Cam­era Corp. The principal defendants are Sony Corporation, the manufac­turer of the equipment, and its wholly owned subsidiary, Sony Corporation of America. The advertising agency of Doyle Dane Bernback, Inc., also involved in marketing the Betamax, is also a petitioner. An individual VTR user, William Griffiths, was named as a defendant in the District Court, but respondents sought no relief against him. Griffiths is not a petitioner. For convenience, we shall refer to petitioners collectively as Sony.

3

As evidence of how a VTR may be used, respondents offered the tes­timony of William Griffiths. Griffiths, although named as an individual defendant, was a client of plaintiffs’ law firm. The District Court sum­marized his testimony as follows:

“He owns approximately 100 tapes. When Griffiths bought his Betamax, he intended not only to time-shift (record, play-back and then erase) but also to build a library of cassettes. Maintaining a library, however, proved too expensive, and he is now erasing some earlier tapes and reusing them.

“Griffiths copied about 20 minutes of a Universal motion picture called ‘Never Give An Inch,’ and two episodes from Universal television series entitled ‘Baa Baa Black Sheep’ and ‘Holmes and Yo Yo.’ He would have erased each of these but for the request of plaintiffs’ counsel that it be kept. Griffiths also testified that he had copied but already erased Universal films called ‘Alpha Caper’ (erased before anyone saw it) and ‘Amelia Ear­hart.’ At the time of his deposition Griffiths did not intend to keep any Universal film in his library.

“Griffiths has also recorded documentaries, news broadcasts, sporting events and political programs such as a rerun of the Nixon/Kennedy debate.” 480 F. Supp. 429, 436-437 (1979).

Four other witnesses testified to having engaged in similar activity.

4

The District Court summarized some of the findings in these surveys as follows:

“According to plaintiffs’ survey, 75.4% of the VTR owners use their machines to record for time-shifting purposes half or most of the time. Defendants’ survey showed that 96% of the Betamax owners had used the machine to record programs they otherwise would have missed.

“When plaintiffs asked interviewees how many cassettes were in their li­brary, 55.8% said there were 10 or fewer. In defendants’ survey, of the total programs viewed by interviewees in the past month, 70.4% had been viewed only that one time and for 57.9%, there were no plans for further viewing.” Id., at 438.

5

“81.9% of the defendants’ interviewees watched the same amount or more of regular television as they did before owning a Betamax. 83.2% reported their frequency of movie going was unaffected by Betamax.” Id., at 439.

6

See Defendants’ Exh. OT, Table 20; Tr. 2447-2450, 2480, 2486-2487, 2515-2516, 2530-2534.

7

The trial also briefly touched upon demonstrations of the Betamax by the retailer petitioners which were alleged to be infringements by respond­ents. The District Court held against respondents on this claim, 480 F. Supp., at 456-457, the Court of Appeals affirmed this holding, 659 F. 2d 963, 976 (1981), and respondents did not cross-petition on this issue.

8

The court also found that this “access is not just a matter of conven­ience, as plaintiffs have suggested. Access has been limited not simply by inconvenience but by the basic need to work. Access to the better pro­gram has also been limited by the competitive practice of counterprogram-­ming.” 480 F. Supp., at 454.

9

“Without a ‘productive use,’ i. e. when copyrighted material is repro­duced for its intrinsic use, the mass copying of the sort involved in this case precludes an application of fair use.” 659 F. 2d, at 971-972.

10

In its Report accompanying the comprehensive revision of the Copy­right Act in 1909, the Judiciary Committee of the House of Represent­atives explained this balance:

“The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings, . . . but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods the exclusive rights to their writings. . . .

“In enacting a copyright law Congress must consider . . . two questions: First, how much will the legislation stimulate the producer and so benefit the public; and, second, how much will the monopoly granted be detri­mental to the public? The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the public that out­weighs the evils of the temporary monopoly.” H. R. Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909).

11

Thus, for example, the development and marketing of player pianos and perforated rolls of music, see White-Smith Music Publishing Co. v. Apollo Co., 209 U. S. 1 (1908), preceded the enactment of the Copyright Act of 1909; innovations in copying techniques gave rise to the statutory exemption for library copying embodied in § 108 of the 1976 revision of the copyright law; the development of the technology that made it possible to retransmit television programs by cable or by microwave systems, see Fortnightly Corp. v. United Artists Television, Inc., 392 U. S. 390 (1968), and Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U. S. 394 (1974), prompted the enactment of the complex provisions set forth in 17 U. S. C. § 111(d)(2)(B) and § 111(d)(5) (1982 ed.) after years of detailed congressional study, see Eastern Microwave, Inc. v. Doubleday Sports, Inc., 691 F. 2d 125, 129 (CA2 1982).

By enacting the Sound Recording Amendment of 1971, 85 Stat. 391, Congress also provided the solution to the “record piracy” problems that had been created by the development of the audio tape recorder. Sony argues that the legislative history of that Act, see especially H. R. Rep. No. 92-487, p. 7 (1971), indicates that Congress did not intend to prohibit the private home use of either audio or video tape recording equipment. In view of our disposition of the contributory infringement issue, we ex­press no opinion on that question.

12

“Copyright protection became necessary with the invention of the printing press and had its early beginnings in the British censorship laws. The fortunes of the law of copyright have always been closely connected with freedom of expression, on the one hand, and with technological im­provements in means of dissemination, on the other. Successive ages have drawn different balances among the interest of the writer in the con­trol and exploitation of his intellectual property, the related interest of the publisher, and the competing interest of society in the untrammeled dis­semination of ideas.” Foreword to B. Kaplan, An Unhurried View of Copyright vii-viii (1967).

13

See, e. g., White-Smith Music Publishing Co. v. Apollo Co., 209 U. S., at 19; cf. Deep South Packing Co. v. Laitram Corp., 406 U. S. 518, 530-531 (1972). While the law has never recognized an author's right to absolute control of his work, the natural tendency of legal rights to express themselves in absolute terms to the exclusion of all else is particularly pro­nounced in the history of the constitutionally sanctioned monopolies of the copyright and the patent. See, e. g., United States v. Paramount Pic­tures, Inc., 334 U. S. 131, 156-158 (1948) (copyright owners claiming right to tie license of one film to license of another under copyright law); Fox Film Corp. v. Doyal, 286 U. S. 123 (1932) (copyright owner claiming copy­right renders it immune from state taxation of copyright royalties); Bobbs-­Merrill Co. v. Straus, 210 U. S. 339, 349-351 (1908) (copyright owner claiming that a right to fix resale price of his works within the scope of his copyright); International Business Machines Corp. v. United States, 298 U. S. 131 (1936) (patentees claiming right to tie sale of unpatented article to lease of patented device).

14

Section 106 of the Act provides:

“Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

“(1) to reproduce the copyrighted work in copies or phonorecords;

“(2) to prepare derivative works based upon the copyrighted work;

“(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

“(4) in the ease of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and

“(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the indi­vidual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.”

15

Moreover, anyone who willfully infringes the copyright to reproduce a motion picture for purposes of commercial advantage or private financial gain is subject to substantial criminal penalties, 17 U. S. C. § 506(a) (1982 ed.), and the fruits and instrumentalities of the crime are forfeited upon conviction, § 506(b).

16

In this regard, we reject respondents’ attempt to cast this action as comparable to a class action because of the positions taken by amici with copyright interests and their attempt to treat the statements made by amici as evidence in this case. See Brief for Respondents 1, and n. 1, 6, 52, 53, and n. 116. The stated desires of amici concerning the outcome of this or any litigation are no substitute for a class action, are not evidence in the case, and do not influence our decision; we examine an amicus curiae brief solely for whatever aid it provides in analyzing the legal questions before us.

17

As the District Court correctly observed, however, “the lines between direct infringement, contributory infringement and vicarious liability are not clearly drawn ... .” 480 F. Supp., at 457-458. The lack of clarity in this area may, in part, be attributable to the fact that an infringer is not merely one who uses a work without authorization by the copyright owner, but also one who authorizes the use of a copyrighted work without actual authority from the copyright owner.

We note the parties’ statements that the questions of Sony’s liability under the “doctrines” of “direct infringement” and “vicarious liability” are not nominally before this Court. Compare Brief for Respondents 9, n. 22, 41, n. 90, with Reply Brief for Petitioners 1, n. 2. We also observe, how­ever, that reasoned analysis of respondents’ unprecedented contributory infringement claim necessarily entails consideration of arguments and case law which may also be forwarded under the other labels, and indeed the parties to a large extent rely upon such arguments and authority in support of their respective positions on the issue of contributory infringement.

18

The so-called “dance hall cases,” Famous Music Corp. v. Bay State Harness Horse Racing & Breeding Assn., Inc., 554 F. 2d 1213 (CA1 1977) (racetrack retained infringer to supply music to paying customers); KECA Music, Inc. v. Dingus McGee’s Co., 432 F. Supp. 72 (WD Mo. 1977) (cocktail lounge hired musicians to supply music to paying customers); Dreamland Ball Room, Inc. v. Shapiro, Bernstein & Co., 36 F. 2d 354 (CA7 1929) (dance hall hired orchestra to supply music to paying custom­ers), are often contrasted with the so-called landlord-tenant cases, in which landlords who leased premises to a direct infringer for a fixed rental and did not participate directly in any infringing activity were found not to be liable for contributory infringement. E. g., Deutsch v. Arnold, 98 F. 2d 686 (CA2 1938).

In Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F. 2d 304 (CA2 1963), the owner of 23 chainstores retained the direct infringer to run its record departments. The relationship was structured as a licensing ar­rangement, so that the defendant bore none of the business risk of running the department. Instead, it received 10% or 12% of the direct infringer’s gross receipts. The Court of Appeals concluded:

“[The dance-hall eases] and this one lie closer on the spectrum to the employer-employee model, than to the landlord-tenant model. . . . [0]n the particular facts before us, . . . Green’s relationship to its infringing licensee, as well as its strong concern for the financial success of the phono­graph record concession, renders it liable for the unauthorized sales of the ‘bootleg’ records.

“... [T]he imposition of vicarious liability in the ease before us cannot be deemed unduly harsh or unfair. Green has the power to police carefully the conduct of its concessionaire . . .; our judgment will simply encourage it to do so, thus placing responsibility where it can and should be effec­tively exercised." Id., at 308 (emphasis in original).

In Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F. 2d 1159 (CA2 1971), the direct infringers retained the contribu­tory infringer to manage their performances. The contributory infringer would contact each direct infringer, obtain the titles of the musical compo­sitions to be performed, print the programs, and then sell the programs to its own local organizations for distribution at the time of the direct infringe­ment. Id., at 1161. The Court of Appeals emphasized that the contribu­tory infringer had actual knowledge that the artists it was managing were performing copyrighted works, was in a position to police the infringing conduct of the artists, and derived substantial benefit from the actions of the primary infringers. Id., at 1163.

In Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc., 256 F. Supp. 399 (SDNY 1966), the direct infringer manufactured and sold boot­leg records. In denying a motion for summary judgment, the District Court held that the infringer’s advertising agency, the radio stations that advertised the infringer’s works, and the service agency that boxed and mailed the infringing goods could all be held liable, if at trial it could be demonstrated that they knew or should have known that they were dealing in illegal goods.

19

A. g., United States v. Paramount Pictures, Inc., 334 U. S., at 158; Fox Film Corp. v. Doyal, 286 U. S., at 131; Wheaton v. Peters, 8 Pet. 591, 657-658 (1834). The two areas of the law, naturally, are not identical twins, and we exercise the caution which we have expressed in the past in applying doctrine formulated in one area to the other. See generally Mazer v. Stein, 347 U. S. 201, 217-218 (1954); Bobbs-Merrill Co. v. Straus, 210 U. S., at 345.

We have consistently rejected the proposition that a similar kinship ex­ists between copyright law and trademark law, and in the process of doing so have recognized the basic similarities between copyrights and patents. The Trade-Mark Cases, 100 U. S. 82, 91-92 (1879); see also United Drug Co. v. Theodore Rectanus Co., 248 U. S. 90, 97 (1918) (trademark right “has little or no analogy” to copyright or patent); McLean v. Fleming, 96 U. S. 245, 254 (1878); Canal Co. v. Clark, 13 Wall. 311, 322 (1872). Given the fundamental differences between copyright law and trademark law, in this copyright case we do not look to the standard for contributory infringe­ment set forth in Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 854-855 (1982), which was crafted for application in trademark cases. There we observed that a manufacturer or distributor could be held liable to the owner of a trademark if it intentionally induced a mer­chant down the chain of distribution to pass off its product as that of the trademark owner’s or if it continued to supply a product which could readily be passed off to a particular merchant whom it knew was mislabel­ing the product with the trademark owner’s mark. If Inwood’s narrow standard for contributory trademark infringement governed here, re­spondents’ claim of contributory infringement would merit little discussion. Sony certainly does not “intentionally induc[e]” its customers to make infringing uses of respondents’ copyrights, nor does it supply its products to identified individuals known by it to be engaging in continuing infringe­ment of respondents’ copyrights, see id., at 855.

20

Title 36 U. S. C. §271 provides:

“(a) Except as otherwise provided in this title, whoever without author­ity makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.

“(b) Whoever actively induces infringement of a patent shall be liable as an infringer.

“(c) Whoever sells a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringe­ment of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.

“(d) No patent owner otherwise entitled to relief for infringement or contributory infringement of a patent shall be denied relief or deemed guilty of misuse or illegal extension of the patent right by reason of his hav­ing done one or more of the following: (1) derived revenue from acts which if performed by another without his consent would constitute contributory infringement of the patent; (2) licensed or authorized another to perform acts which if performed without his consent would constitute contributory infringement of the patent; (3) sought to enforce his patent rights against infringement or contributory infringement.”

21

It seems extraordinary to suggest that the Copyright Act confers upon all copyright owners collectively, much less the two respondents in this case, the exclusive right to distribute VTR’s simply because they may be used to infringe copyrights. That, however, is the logical implication of their claim. The request for an injunction below indicates that respond­ents seek, in effect, to declare VTR’s contraband. Their suggestion in this Court that a continuing royalty pursuant to a judicially created compulsory license would be an acceptable remedy merely indicates that respondents, for their part, would be willing to license their claimed monopoly interest in VTR’s to Sony in return for a royalty.

22

The record suggests that Disney’s programs at the time of trial con­sisted of approximately one hour a week of network television and one syndicated series. Universal’s percentage in the Los Angeles market on commercial television stations was under 5%. See Tr. 532-533, 549-550.

23

The District Court did not make any explicit findings with regard to how much broadcasting is wholly uncopyrighted. The record does include testimony that at least one movie — My Man Godfrey — falls within that cat­egory, id., at 2300-2301, and certain broadcasts produced by the Federal Government are also uncopyrighted. See 17 U. S. C. § 105 (1982 ed.). Cf. Schnapper v. Foley, 215 U. S. App. D. C. 59, 667 F. 2d 102 (1981) (explaining distinction between work produced by the Government and work commissioned by the Government). To the extent such broadcasting is now significant, it further bolsters our conclusion. Moreover, since copyright protection is not perpetual, the number of audiovisual works in the public domain necessarily increases each year.

24

See Tr. 2447-2450 (Alexander Hadden, Major League Baseball); id., at 2480, 2486-2487 (Jay Moyer, National Football League); id., at 2515-­2516 (David Stern, National Basketball Association); id., at 2530-2534 (Gilbert Stein, National Hockey League); id., at 2543-2552 (Thomas Han­sen, National Collegiate Athletic Association); id., at 2565-2572 (Benjamin Armstrong, National Religious Broadcasters). Those officials were au­thorized to be the official spokespersons for their respective institutions in this litigation. Id., at 2432, 2479, 2509-2510, 2530, 2538, 2563. See Fed. Rule Civ. Proc. 30(b)(6).

25

Tr. 2863-2902; Defendants’ Exh. PI.

26

See also Tr. 2833-2844 (similar testimony by executive director of New Jersey Public Broadcasting Authority). Cf. id., at 2592-2605 (testimony by chief of New York Education Department’s Bureau of Mass Communi­cations approving home taping for educational purposes).

27

“Some public stations, as well as commercial stations, program the ‘Neighborhood’ at hours when some children cannot use it. I think that it’s a real service to families to be able to record such programs and show them at appropriate times. I have always felt that with the advent of all of this new technology that allows people to tape the ‘Neighborhood’ off-­the-air, and I’m speaking for the ‘Neighborhood’ because that’s what I produce, that they then become much more active in the programming of their family’s television life. Very frankly, I am opposed to people being programmed by others. My whole approach in broadcasting has always been ‘You are an important person just the way you are. You can make healthy decisions.’ Maybe I’m going on too long, but I just feel that any­thing that allows a person to be more active in the control of his or her life, in a healthy way, is important.” Id., at 2920-2921. See also Defendants’ Exh. PI, p. 85.

28

It may be rare for large numbers of copyright owners to authorize duplication of their works without demanding a fee from the copier. In the context of public broadcasting, however, the user of the copyrighted work is not required to pay a fee for access to the underlying work. The traditional method by which copyright owners capitalize upon the tele­vision medium — commercially sponsored free public broadcast over the public airwaves — is predicated upon the assumption that compensation for the value of displaying the works will be received in the form of advertising revenues.

In the context of television programming, some producers evidently be­lieve that permitting home viewers to make copies of their works off the air actually enhances the value of their copyrights. Irrespective of their rea­sons for authorizing the practice, they do so, and in significant enough numbers to create a substantial market for a noninfringing use of the Sony VTR’s. No one could dispute the legitimacy of that market if the produc­ers had authorized home taping of their programs in exchange for a license fee paid directly by the home user. The legitimacy of that market is not compromised simply because these producers have authorized home taping of their programs without demanding a fee from the home user. The copy­right law does not require a copyright owner to charge a fee for the use of his works, and as this record clearly demonstrates, the owner of a copy­right may well have economic or noneconomic reasons for permitting cer­tain kinds of copying to occur without receiving direct compensation from the copier. It is not the role of the courts to tell copyright holders the best way for them to exploit their copyrights: even if respondents’ competitors were ill-advised in authorizing home videotaping, that would not change the fact that they have created a substantial market for a paradigmatic noninfringing use of Sony’s product.

29

The Copyright Act of 1909, 35 Stat. 1075, did not have a “fair use” pro­vision. Although that Act’s compendium of exclusive rights “to print, reprint, publish, copy, and vend the copyrighted work” was broad enough to encompass virtually all potential interactions with a copyrighted work, the statute was never so construed. The courts simply refused to read the statute literally in every situation. When Congress amended the statute in 1976, it indicated that it “intended to restate the present judicial doc­trine of fair use, not to change, narrow, or enlarge it in any way.” H. R. Rep. No. 94-1476, p. 66 (1976).

30

Section 107 provides:

“Notwithstanding the provisions of section 106, the fair use of a copy­righted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criti­cism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of 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.” 17 U. S. C. § 107 (1982 ed.).

31

The House Report expressly stated that the fair use doctrine is an “equitable rule of reason” in its explanation of the fair use section:

“Although the courts have considered and ruled upon the fair use doc­trine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no gen­erally applicable definition is possible, and each case raising the question must be decided on its own facts. . . .

“General intention behind the provision

“The statement of the fair use doctrine in section 107 offers some guid­ance to users in determining when the principles of the doctrine apply. However, the endless variety of situations and combinations of circum­stances that can rise in particular cases precludes the formulation of exact rules in the statute. The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis.” H. R. Rep. No. 94-1476, swpra, at 65-66.

The Senate Committee similarly eschewed a rigid, bright-line approach to fair use. The Senate Report endorsed the view “that off-the-air record­ing for convenience” could be considered “fair use” under some circum­stances, although it then made it clear that it did not intend to suggest that off-the-air recording for convenience should be deemed fair use under any circumstances imaginable. S. Rep. No. 94-473, pp. 65-66 (1975). The latter qualifying statement is quoted by the dissent, post, at 481, and if read in isolation, would indicate that the Committee intended to con­demn all off-the-air recording for convenience. Read in context, however, it is quite clear that that was the farthest thing from the Committee’s intention.

32

“The Committee has amended the first of the criteria to be consid­ered — ‘the purpose and character of the use’ — to state explicitly that this factor includes a consideration of ‘whether such use is of a commercial nature or is for non-profit educational purposes.’ This amendment is not intended to be interpreted as any sort of not-for-profit limitation on edu­cational uses of copyrighted works. It is an express recognition that, as under the present law, the commercial or non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors in fair use decisions.” H. R. Rep. No. 94-1476, supra, at 66.

33

It has been suggested that “consumptive uses of copyrights by home VTR users are commercial even if the consumer does not sell the home­made tape because the consumer will not buy tapes separately sold by the copyrighth older.” Home Recording of Copyrighted Works: Hearing be­fore the Subcommittee on Courts, Civil Liberties and the Administration of Justice of the House Committee on the Judiciary, 97th Cong., 2d Sess., pt. 2, p. 1250 (1982) (memorandum of Prof. Laurence H. Tribe). Further­more, “[t]he error in excusing such theft as noncommercial,” we are told, “can be seen by simple analogy: jewel theft is not converted into a noncom­mercial veniality if stolen jewels are simply worn rather than sold.” Ibid. The premise and the analogy are indeed simple, but they add nothing to the argument. The use to which stolen j ewelry is put is quite irrelevant in determining whether depriving its true owner of his present possessory in­terest in it is venial; because of the nature of the item and the true owner’s interests in physical possession of it, the law finds the taking objectionable even if the thief does not use the item at all. Theft of a particular item of personal property of course may have commercial significance, for the thief deprives the owner of his right to sell that particular item to any in­dividual. Time-shifting does not even remotely entail comparable con­sequences to the copyright owner. Moreover, the time-shifter no more steals the program by watching it once than does the live viewer, and the live viewer is no more likely to buy prerecorded videotapes than is the time-shifter. Indeed, no live viewer would buy a prerecorded videotape if he did not have access to a VTR.

34

Cf. A. Latman, Fair Use of Copyrighted Works (1958), reprinted in Study No. 14 for the Senate Committee on the Judiciary, Copyright Law Revision, Studies Prepared for the Subcommittee on Patents, Trademarks, and Copyrights, 86th Cong., 2d Sess., 30 (1960):

“In certain situations, the copyright owner suffers no substantial harm from the use of his work. . . . Here again, is the partial marriage between the doctrine of fair use and the legal maxim de minimus non curat lex.”

35

See also 480 F. Supp., at 451:

“It should be noted, however, that plaintiffs’ argument is more complicated and speculative than was the plaintiff’s in Williams & Wilkins. . . . Here, plaintiffs ask the court to find harm based on many more assumptions. . . . As is discussed more fully in Part IV infra, some of these assumptions are based on neither fact nor experience, and plaintiffs admit that they are to some extent inconsistent and illogical.”

36

«There was testimony at trial, however, that Nielsen Ratings has already developed the ability to measure when a Betamax in a sample home is recording the program. Thus, the Betamax owner will be meas­ured as a part of the live audience. The later diary can augment that measurement with information about subsequent viewing.” Id., at 466.

In a separate section, the District Court rejected plaintiffs’ suggestion that the commercial attractiveness of television broadcasts would be dimin­ished because Betamax owners would use the pause button or fast-forward control to avoid viewing advertisements:

“It must be remembered, however, that to omit commercials, Betamax owners must view the program, including the commercials, while record­ing. To avoid commercials during playback, the viewer must fast-forward and, for the most part, guess as to when the commercial has passed. For most recordings, either practice may be too tedious. As defendants’ sur­vey showed, 92% of the programs were recorded with commercials and only 25% of the owners fast-forward through them. Advertisers will have to make the same kinds of judgments they do now about whether persons viewing televised programs actually watch the advertisements which inter­rupt them.” Id., at 468.

37

“Here plaintiffs assume that people will view copies when they would otherwise be watching television or going to the movie theater. There is no factual basis for this assumption. It seems equally likely that Betamax owners will play their tapes when there is nothing on television they wish to see and no movie they want to attend. Defendants’ survey does not show any negative effect of Betamax ownership on television viewing or theater attendance.” Id., at 466.

38

“The underlying assumptions here are particularly difficult to accept. Plaintiffs explain that the Betamax increases access to the original tele­vised material and that the more people there are in this original audience, the fewer people the rerun will attract. Yet current marketing practices, including the success of syndication, show just the opposite. Today, the larger the audience for the original telecast, the higher the price plaintiffs can demand from broadcasters from rerun rights. There is no survey within the knowledge of this court to show that the rerun audience is com­prised of persons who have not seen the program. In any event, if ratings can reflect Betamax recording, original audiences may increase and, given market practices, this should aid plaintiffs rather than harm them.” Ibid.

39

“This suggestion lacks merit. By definition, time-shift recording en­tails viewing and erasing, so the program will no longer be on tape when the later theater run begins. Of course, plaintiffs may fear that the Beta-­max owners will keep the tapes long enough to satisfy all their interest in the program and will, therefore, not patronize later theater exhibitions. To the extent that this practice involves librarying, it is addressed in section V. C., infra. It should also be noted that there is no evidence to suggest that the public interest in later theatrical exhibitions of motion pictures will be reduced any more by Betamax recording than it already is by the television broadcast of the film.” Id., at 467.

40

The Court of Appeals chose not to engage in any “equitable rule of rea­son” analysis in this case. Instead, it assumed that the category of “fair use” is rigidly circumscribed by a requirement that every such use must be “productive.” It therefore concluded that copying a television program merely to enable the viewer to receive information or entertainment that he would otherwise miss because of a personal scheduling conflict could never be fair use. That understanding of “fair use” was erroneous.

Congress has plainly instructed us that fair use analysis calls for a sensi­tive balancing of interests. The distinction between “productive” and “un­productive” uses may be helpful in calibrating the balance, but it cannot be wholly determinative. Although copying to promote a scholarly endeavor certainly has a stronger claim to fair use than copying to avoid interrupting a poker game, the question is not simply two-dimensional. For one thing, it is not true that all copyrights are fungible. Some copyrights govern ma­terial with broad potential secondary markets. Such material may well have a broader claim to protection because of the greater potential for com­mercial harm. Copying a news broadcast may have a stronger claim to fair use than copying a motion picture. And, of course, not all uses are fungible. Copying for commercial gain has a much weaker claim to fair use than copying for personal enrichment. But the notion of social “pro­ductivity” cannot be a complete answer to this analysis. A teacher who copies to prepare lecture notes is clearly productive. But so is a teacher who copies for the sake of broadening his personal understanding of his specialty. Or a legislator who copies for the sake of broadening her under­standing of what her constituents are watching; or a constituent who copies a news program to help make a decision on how to vote.

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. In a hospital setting, using a VTR to enable a patient to see programs he would otherwise miss has no productive purpose other than contributing to the psychological well-being of the patient. Virtually any time-shifting that increases viewer access to television programming may result in a comparable benefit. The statu­tory language does not identify any dichotomy between productive and nonproductive time-shifting, but does require consideration of the eco­nomic consequences of copying.

Justice Blackmun,

dissenting.

A restatement of the facts and judicial history of this case is necessary, in my view, for a proper focus upon the issues. Respondents’ position is hardly so “unprecedented,” ante, at 421, in the copyright law, nor does it really embody a “gross generalization,” ante, at 436, or a “novel theory of liability,” ante, at 437, and the like, as the Court, in belittling their claims, describes the efforts of respondents.

I

The introduction of the home videotape recorder (VTR) upon the market has enabled millions of Americans to make recordings of television programs in their homes, for future and repeated viewing at their own convenience. While this practice has proved highly popular with owners of television sets and VTR’s, it understandably has been a matter of con­cern for the holders of copyrights in the recorded programs. A result is the present litigation, raising the issues whether the home recording of a copyrighted television program is an infringement of the copyright, and, if so, whether the manu­facturers and distributors of VTR’s are liable as contribu­tory infringers. I would hope that these questions ultimately will be considered seriously and in depth by the Congress and be resolved there, despite the fact that the Court’s decision today provides little incentive for congressional action. Our task in the meantime, however, is to resolve these issues as best we can in the light of ill-fitting existing copyright law.

It is no answer, of course, to refer to and stress, as the Court does, this Court’s “consistent deference to Congress” when­ever “major technological innovations” appear. Ante, at 431. Perhaps a better and more accurate description is that the Court has tended to evade the hard issues when they arise in the area of copyright law. I see no reason for the Court to be particularly pleased with this tradition or to continue it. Indeed, it is fairly clear from the legislative history of the 1976 Act that Congress meant to change the old pattern and enact a statute that would cover new technologies, as well as old.

II

In 1976, respondents Universal City Studios, Inc., and Walt Disney Productions (Studios) brought this copyright infringement action in the United States District Court for the Central District of California against, among others, peti­tioners Sony Corporation, a Japanese corporation, and Sony Corporation of America, a New York corporation, the manu­facturer and distributor, respectively, of the Betamax VTR. The Studios sought damages, profits, and a wide-ranging injunction against further sales or use of the Betamax or Betamax tapes.

The Betamax, like other VTR’s, presently is capable of re­cording television broadcasts off the air on videotape cassettes, and playing them back at a later time.1 Two kinds of Beta-­max usage are at issue here.2 The first is “time-shifting,” whereby the user records a program in order to watch it at a later time, and then records over it, and thereby erases the program, after a single viewing. The second is “library-­building,” in which the user records a program in order to keep it for repeated viewing over a longer term. Sony’s ad­vertisements, at various times, have suggested that Betamax users “record favorite shows” or “build a library.” Sony’s Betamax advertising has never contained warnings about copyright infringement, although a warning does appear in the Betamax operating instructions.

The Studios produce copyrighted “movies” and other works that they release to theaters and license for television broad­cast. They also rent and sell their works on film and on prerecorded videotapes and videodiscs. License fees for television broadcasts are set according to audience ratings, compiled by rating services that do not measure any play­backs of videotapes. The Studios make the serious claim that VTR recording may result in a decrease in their revenue from licensing their works to television and from marketing them in other ways.

After a 5-week trial, the District Court, with a detailed opinion, ruled that home VTR recording did not infringe the Studios’ copyrights under either the Act of Mar. 4,1909 (1909 Act), 35 Stat. 1075, as amended (formerly codified as 17 U. S. C. § 1 et seq.), or the Copyright Revision Act of 1976 (1976 Act), 90 Stat. 2541, 17 U. S. C. § 101 et seq. (1982 ed.).3 The District Court also held that even if home VTR recording were an infringement, Sony could not be held liable under theories of direct infringement, contributory infringement, or vicarious liability. Finally, the court concluded that an in­junction against sales of the Betamax would be inappropriate even if Sony were liable under one or more of those theories. 480 F. Supp. 429 (1979).

The United States Court of Appeals for the Ninth Circuit reversed in virtually every respect. 659 F. 2d 963 (1981). It held that the 1909 Act and the 1976 Act contained no im­plied exemption for “home use” recording, that such record­ing was not “fair use,” and that the use of the Betamax to record the Studios’ copyrighted works infringed their copy­rights. The Court of Appeals also held Sony liable for con­tributory infringement, reasoning that Sony knew and antici­pated that the Betamax would be used to record copyrighted material off the air, and that Sony, indeed, had induced, caused, or materially contributed to the infringing conduct. The Court of Appeals remanded the case to the District Court for appropriate relief; it suggested that the District Court could consider the award of damages or a continuing royalty in lieu of an injunction. Id., at 976.

III

The Copyright Clause of the Constitution, Art. I, § 8, cl. 8, empowers Congress “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.” This Nation’s initial copyright statute was passed by the First Congress. Entitled “An Act for the en­couragement of learning,” it gave an author “the sole right and liberty of printing, reprinting, publishing and vending” his “map, chart, book or books” for a period of 14 years. Act of May 31, 1790, § 1, 1 Stat. 124. Since then, as the technol­ogy available to authors for creating and preserving their writings has changed, the governing statute has changed with it. By many amendments, and by complete revisions in 1831, 1870, 1909, and 1976,4 authors’ rights have been expanded to provide protection to any “original works of authorship fixed in any tangible medium of expression,” in­cluding “motion pictures and other audiovisual works.” 17 U. S. C. § 102(a) (1982 ed.).5

Section 106 of the 1976 Act grants the owner of a copyright a variety of exclusive rights in the copyrighted work,6 includ­ing the right “to reproduce the copyrighted work in copies or phonorecords.”7 This grant expressly is made subject to §§ 107-118, which create a number of exemptions and limita­tions on the copyright owner’s rights. The most important of these sections, for present purposes, is § 107; that section states that “the fair use of a copyrighted work ... is not an infringement of copyright.”8

The 1976 Act, like its predecessors,9 does not give the copyright owner full and complete control over all possible uses of his work. If the work is put to some use not enumer­ated in §106, the use is not an infringement. See Fort­nightly Corp. v. United Artists Television, Inc., 392 U. S. 390, 393-395 (1968). Thus, before considering whether home videotaping comes within the scope of the fair use ex­emption, one first must inquire whether the practice appears to violate the exclusive right, granted in the first instance by § 106(1), “to reproduce the copyrighted work in copies or phonorecords.”

A

Although the word “copies” is in the plural in §106(1), there can be no question that under the Act the making of even a single unauthorized copy is prohibited. The Senate and House Reports explain: “The references to ‘copies or phonorecords,’ although in the plural, are intended here and throughout the bill to include the singular (1 U. S. C. § l).”10 S. Rep. No. 94-473, p. 58 (1975) (1975 Senate Report); H. R. Rep. No. 94-1476, p. 61 (1976) (1976 House Report). The Reports then describe the reproduction right established by §106(1):

“[T]he right ‘to reproduce the copyrighted work in copies or phonorecords’ means the right to produce a material object in which the work is duplicated, transcribed, imi­tated, or simulated in a fixed form from which it can be ‘perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.’ As under the present law, a copyrighted work would be infringed by reproducing it in whole or in any sub­stantial part, and by duplicating it exactly or by imita­tion or simulation.” 1975 Senate Report 58; 1976 House Report 61.

The making of even a single videotape recording at home falls within this definition; the VTR user produces a material ob­ject from which the copyrighted work later can be perceived. Unless Congress intended a special exemption for the making of a single copy for personal use, I must conclude that VTR recording is contrary to the exclusive rights granted by § 106(1).

The 1976 Act and its accompanying Reports specify in some detail the situations in which a single copy of a copy­righted work may be made without infringement concerns. Section 108(a), for example, permits a library or archives “to reproduce no more than one copy or phonorecord of a work” for a patron, but only under very limited conditions; an entire work, moreover, can be copied only if it cannot be obtained elsewhere at a fair price.11 § 108(e); see also § 112(a) (broad­caster may “make no more than one copy or phonorecord of a particular transmission program,” and only under certain conditions). In other respects, the making of single copies is permissible only within the limited confines of the fair use doctrine. The Senate Report, in a section headed “Single and multiple copying,” notes that the fair use doctrine would permit a teacher to make a single copy of a work for use in the classroom, but only if the work was not a “sizable” one such as a novel or treatise. 1975 Senate Report 63-64; accord, 1976 House Report 68-69, 71. Other situations in which the making of a single copy would be fair use are described in the House and Senate Reports.12 But neither the statute nor its legislative history suggests any intent to create a general exemption for a single copy made for per­sonal or private use.

Indeed, it appears that Congress considered and rejected the very possibility of a special private use exemption. The issue was raised early in the revision process, in one of the studies prepared for Congress under the supervision of the Copyright Office. A. Latman, Pair Use of Copyrighted Works (1958), reprinted in Study No. 14 for the Senate Com­mittee on the Judiciary, Copyright Law Revision, Studies Prepared for the Subcommittee on Patents, Trademarks, and Copyrights, 86th Cong., 2d Sess., 1 (1960) (Latman Fair Use Study). This study found no reported case supporting the existence of an exemption for private use, although it noted that “the purpose and nature of a private use, and in some cases the small amount taken, might lead a court to apply the general principles of fair use in such a way as to deny liabil­ity.” Id., at 12. After reviewing a number of foreign copy­right laws that contained explicit statutory exemptions for private or personal use, id., at 25, Professor Latman outlined several approaches that a revision bill could take to the gen­eral issue of exemptions and fair use. One of these was the adoption of particularized rules to cover specific situations, including “the field of personal use.” Id., at 33.13

Rejecting the latter alternative, the Register of Copyrights recommended that the revised copyright statute simply men­tion the doctrine of fair use and indicate its general scope. The Register opposed the adoption of rules and exemptions to cover specific situations,14 preferring, instead, to rely on the judge-made fair use doctrine to resolve new problems as they arose. See Register’s 1961 Report 25; Register’s Supplementary Report 27-28.

The Register’s approach was reflected in the first copy­right revision bills, drafted by the Copyright Office in 1964. These bills, like the 1976 Act, granted the copyright owner the exclusive right to reproduce the copyrighted work, sub­ject only to the exceptions set out in later sections. H. R. 11947/S. 3008, 88th Cong., 2d Sess., §5(a) (1964). The pri­mary exception was fair use, § 6, containing language virtu­ally identical to § 107 of the 1976 Act. Although the copy­right revision bills underwent change in many respects from their first introduction in 1964 to their final passage in 1976, these portions of the bills did not change.15 I can con­clude only that Congress, like the Register, intended to rely on the fair use doctrine, and not on a per se exemption for private use, to separate permissible copying from the impermissible.16

When Congress intended special and protective treatment for private use, moreover, it said so explicitly. One such explicit statement appears in § 106 itself. The copyright owner’s exclusive right to perform a copyrighted work, in contrast to his right to reproduce the work in copies, is lim­ited. Section 106(4) grants a copyright owner the exclusive right to perform the work “publicly,” but does not afford the owner protection with respect to private performances by others. A motion picture is “performed” whenever its images are shown or its sounds are made audible. § 101. Like “sing­[ing] a copyrighted lyric in the shower,” Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 155 (1975), watching television at home with one’s family and friends is now con­sidered a performance. 1975 Senate Report 59-60; 1976 House Report 63.17 Home television viewing nevertheless does not infringe any copyright — but only because § 106(4) contains the word “publicly.”18 See generally 1975 Senate Report 60-61; 1976 House Report 63-64; Register’s 1961 Report 29-30. No such distinction between public and pri­vate uses appears in § 106(l)’s prohibition on the making of copies.19

Similarly, an explicit reference to private use appears in § 108. Under that section, a library can make a copy for a patron only for specific types of private use: “private study, scholarship, or research.”20 §§ 108(d)(1) and (e)(1); see 37 CFR §201.14(b) (1983). Limits also are imposed on the ex­tent of the copying and the type of institution that may make copies, and the exemption expressly is made inapplicable to motion pictures and certain other types of works. § 108(h). These limitations would be wholly superfluous if an entire copy of any work could be made by any person for private use.21

B

The District Court in this case nevertheless concluded that the 1976 Act contained an implied exemption for “home-use recording.” 480 F. Supp., at 444-446. The court relied pri­marily on the legislative history of a 1971 amendment to the 1909 Act, a reliance that this Court today does not duplicate. Ante, at 430, n. 11. That amendment, however, was ad­dressed to the specific problem of commercial piracy of sound recordings. Act of Oct. 15, 1971, 85 Stat. 391 (1971 Amend­ment). The House Report on the 1971 Amendment, in a section entitled “Home Recording,” contains the following statement:

“In approving the creation of a limited copyright in sound recordings it is the intention of the Committee that this limited copyright not grant any broader rights than are accorded to other copyright proprietors under the existing title 17. Specifically, it is not the intention of the Committee to restrain the home recording, from broadcasts or from tapes or records, of recorded per­formances, where the home recording is for private use and with no purpose of reproducing or otherwise capital­izing commercially on it. This practice is common and unrestrained today, and the record producers and per­formers would be in no different position from that of the owners of copyright in recorded musical composi­tions over the past 20 years.” H. R. Rep. No. 92-487, p. 7 (1971) (1971 House Report).

Similar statements were made during House hearings on the bill22 and on the House floor,23 although not in the Senate proceedings. In concluding that these statements created a general exemption for home recording, the District Court, in my view, paid too little heed to the context in which the statements were made, and failed to consider the limited pur­pose of the 1971 Amendment and the structure of the 1909 Act.

Unlike television broadcasts and other types of motion pictures, sound recordings were not protected by copyright prior to the passage of the 1971 Amendment. Although the underlying musical work could be copyrighted, the 1909 Act provided no protection for a particular performer’s rendition of the work. Moreover, copyrighted musical works that had been recorded for public distribution were subject to a “com­pulsory license”: any person was free to record such a work upon payment of a 2-cent royalty to the copyright owner. § 1(e), 35 Stat. 1075-1076. While reproduction without pay­ment of the royalty was an infringement under the 1909 Act, damages were limited to three times the amount of the un­paid royalty. § 25(e), 35 Stat. 1081-1082; Shapiro, Bernstein & Co. v. Goody, 248 F. 2d 260, 262-263, 265 (CA2 1957), cert. denied, 355 U. S. 952 (1958). It was observed that the prac­tical effect of these provisions was to legalize record piracy. See S. Rep. No. 92-72, p. 4 (1971); 1971 House Report 2.

In order to suppress this piracy, the 1971 Amendment ex­tended copyright protection beyond the underlying work and to the sound recordings themselves. Congress chose, how­ever, to provide only limited protection: owners of copyright in sound recordings were given the exclusive right “[t]o re­produce [their works] and distribute [them] to the public.” 1971 Amendment, § 1(a), 85 Stat. 391 (formerly codified as 17 U. S. C. § 1(f)).24 This right was merely the right of com­mercial distribution. See 117 Cong. Rec. 34748-34749 (1971) (colloquy of Reps. Kazen and Kastenmeier) (“the bill pro­tects copyrighted material that is duplicated for commercial purposes only”).

Against this background, the statements regarding home recording under the 1971 Amendment appear in a very dif­ferent light. If home recording was “common and unre­strained” under the 1909 Act, see 1971 House Report 7, it was because sound recordings had no copyright protection and the owner of a copyright in the underlying musical work could collect no more than a 2-cent royalty plus 6 cents in damages for each unauthorized use. With so little at stake, it is not at all surprising that the Assistant Register “d[id] not see anybody going into anyone’s home and preventing this sort of thing.” 1971 House Hearings 23.

But the references to home sound recording in the 1971 Amendment’s legislative history demonstrate no congres­sional intent to create a generalized home-use exemption from copyright protection. Congress, having recognized that the 1909 Act had been unsuccessful in controlling home sound recording, addressed only the specific problem of com­mercial record piracy. To quote Assistant Register Ringer again, home use was “not what this legislation [was] ad­dressed to.” Id., at 22.25

While the 1971 Amendment narrowed the sound record­ings loophole in then existing copyright law, motion pictures and other audiovisual works have been accorded full copy­right protection since at least 1912, see Act of Aug. 24, 1912, 37 Stat. 488, and perhaps before, see Edison v. Lubin, 122 F. 240 (CA3 1903), appeal dism’d, 195 U. S. 625 (1904). Con­gress continued this protection in the 1976 Act. Unlike the sound recording rights created by the 1971 Amendment, the reproduction rights associated with motion pictures under § 106(1) are not limited to reproduction for public distribu­tion; the copyright owner's right to reproduce the work ex­ists independently, and the “mere duplication of a copy may constitute an infringement even if it is never distributed.” Register's Supplementary Report 16; see 1975 Senate Report 57 and 1976 House Report 61. Moreover, the 1976 Act was intended as a comprehensive treatment of all aspects of copy­right law. The Reports accompanying the 1976 Act, unlike the 1971 House Report, contain no suggestion that home-use recording is somehow outside the scope of this all-inclusive statute. It was clearly the intent of Congress that no addi­tional exemptions were to be implied.26

I therefore find in the 1976 Act no implied exemption to cover the home taping of television programs, whether it be for a single copy, for private use, or for home use. Taping a copyrighted television program is infringement unless it is permitted by the fair use exemption contained in § 107 of the 1976 Act. I now turn to that issue.

IV

Fair Use

The doctrine of fair use has been called, with some justifi­cation, “the most troublesome in the whole law of copyright.” Dellar v. Samuel Goldwyn, Inc., 104 F. 2d 661, 662 (CA2 1939); see Triangle Publications, Inc. v. Knight-Ridder News­papers, Inc., 626 F. 2d 1171, 1174 (CA5 1980); Meeropol v. Nizer, 560 F. 2d 1061, 1068 (CA2 1977), cert. denied, 434 U. S. 1013 (1978). Although courts have constructed lists of factors to be considered in determining whether a particular use is fair,27 no fixed criteria have emerged by which that determination can be made. This Court thus far has pro­vided no guidance; although fair use issues have come here twice, on each occasion the Court was equally divided and no opinion was forthcoming. Williams & Wilkins Co. v. United States, 203 Ct. Cl. 74, 487 F. 2d 1345 (1973), aff’d, 420 U. S. 376 (1975); Benny v. Loew’s Inc., 239 F. 2d 532 (CA9 1956), aff’d sub nom. Columbia Broadcasting System, Inc. v. Loew’s Inc., 356 U. S. 43 (1958).

Nor did Congress provide definitive rules when it codified the fair use doctrine in the 1976 Act; it simply incorporated a list of factors “to be considered”: the “purpose and charac­ter of the use,” the “nature of the copyrighted work,” the “amount and substantiality of the portion used,” and, perhaps the most important, the “effect of the use upon the potential market for or value of the copyrighted work” (emphasis sup­plied). § 107. No particular weight, however, was assigned to any of these, and the list was not intended to be exclusive. The House and Senate Reports explain that §107 does no more than give “statutory recognition” to the fair use doc­trine; it was intended “to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.” 1976 House Report 66. See 1975 Senate Report 62; S. Rep. No. 93-983, p. 116 (1974); H. R. Rep. No. 83, 90th Cong., 1st Sess., 32 (1967); H. R. Rep. No. 2237, 89th Cong., 2d Sess., 61 (1966).

A

Despite this absence of clear standards, the fair use doc­trine plays a crucial role in the law of copyright. The pur­pose of copyright protection,, in the words of the Constitu­tion, is to “promote the Progress of Science and useful Arts.” Copyright is based on the belief that by granting authors the exclusive rights to reproduce their works, they are given an incentive to create, and that “encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Sci­ence and the useful Arts.’” Mazer v. Stein, 347 U. S. 201, 219 (1954). The monopoly created by copyright thus re­wards the individual author in order to benefit the public. Twentieth Century Music Corp. v. Aiken, 422 U. S., at 156; Fox Film Corp. v. Doyal, 286 U. S. 123, 127-128 (1932); see H. R. Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909).

There are situations, nevertheless, in which strict enforce­ment of this monopoly would inhibit the very “Progress of Science and useful Arts” that copyright is intended to pro­mote. An obvious example is the researcher or scholar whose own work depends on the ability to refer to and to quote the work of prior scholars. Obviously, no author could create a new work if he were first required to repeat the re­search of every author who had gone before him.28 The scholar, like the ordinary user, of course could be left to bar­gain with each copyright owner for permission to quote from or refer to prior works. But there is a crucial difference be­tween the scholar and the ordinary user. When the ordinary user decides that the owner’s price is too high, and forgoes use of the work, only the individual is the loser. When the scholar forgoes the use of a prior work, not only does his own work suffer, but the public is deprived of his contribution to knowledge. The scholar’s work, in other words, produces external benefits from which everyone profits. In such a case, the fair use doctrine acts as a form of subsidy — albeit at the first author’s expense — to permit the second author to make limited use of the first author’s work for the public good. See Latman Fair Use Study 31; Gordon, Fair Use as Market Failure: A Structural Analysis of the Betamax Case and its Predecessors, 82 Colum. L. Rev. 1600, 1630 (1982).

A similar subsidy may be appropriate in a range of areas other than pure scholarship. The situations in which fair use is most commonly recognized are listed in § 107 itself; fair use may be found when a work is used “for purposes such as criti­cism, comment, news reporting, teaching, . . . scholarship, or research.” The House and Senate Reports expand on this list somewhat,29 and other examples may be found in the case law.30 Each of these uses, however, reflects a common theme: each is a productive use, resulting in some added ben­efit to the public beyond that produced by the first author’s work.31 The fair use doctrine, in other words, permits works to be used for “socially laudable purposes.” See Copyright Office, Briefing Papers on Current Issues, reprinted in 1975 House Hearings 2051, 2055. I am aware of no case in which the reproduction of a copyrighted work for the sole benefit of the user has been held to be fair use.32

I do not suggest, of course, that every productive use is a fair use. A finding of fair use still must depend on the facts of the individual case, and on whether, under the circum­stances, it is reasonable to expect the user to bargain with the copyright owner for use of the work. The fair use doc­trine must strike a balance between the dual risks created by the copyright system: on the one hand, that depriving au­thors of their monopoly will reduce their incentive to create, and, on the other, that granting authors a complete monopoly will reduce the creative ability of others.33 The inquiry is necessarily a flexible one, and the endless variety of situa­tions that may arise precludes the formulation of exact rules. But when a user reproduces an entire work and uses it for its original purpose, with no added benefit to the public, the doc­trine of fair use usually does not apply. There is then no need whatsoever to provide the ordinary user with a fair use subsidy at the author's expense.

The making of a videotape recording for home viewing is an ordinary rather than a productive use of the Studios’ copy­righted works. The District Court found that “Betamax owners use the copy for the same purpose as the original. They add nothing of their own.” 480 F. Supp., at 453. Al­though applying the fair use doctrine to home VTR record­ing, as Sony argues, may increase public access to material broadcast free over the public airwaves, I think Sony’s argu­ment misconceives the nature of copyright. Copyright gives the author a right to limit or even to cut off access to his work. Fox Film Corp. v. Doyal, 286 U. S., at 127. A VTR recording creates no public benefit sufficient to justify limit­ing this right. Nor is this right extinguished by the copy­right owner’s choice to make the work available over the airwaves. Section 106 of the 1976 Act grants the copy­right owner the exclusive right to control the performance and the reproduction of his work, and the fact that he has licensed a single television performance is really irrelevant to the existence of his right to control its reproduction. Al­though a television broadcast may be free to the viewer, this fact is equally irrelevant; a book borrowed from the public library may not be copied any more freely than a book that is purchased.

It may be tempting, as, in my view, the Court today is tempted, to stretch the doctrine of fair use so as to permit unfettered use of this new technology in order to increase ac­cess to television programming. But such an extension risks eroding the very basis of copyright law, by depriving authors of control over their works and consequently of their incen­tive to create.34 Even in the context of highly productive educational uses, Congress has avoided this temptation; in passing the 1976 Act, Congress made it clear that off-the-air videotaping was to be permitted only in very limited situa­tions. See 1976 House Report 71; 1975 Senate Report 64. And, the Senate Report adds, “[t]he committee does not in­tend to suggest. . . that off-the-air recording for convenience would under any circumstances, be considered ‘fair use.’” Id., at 66. I cannot disregard these admonitions.

B

I recognize, nevertheless, that there are situations where permitting even an unproductive use would have no effect on the author’s incentive to create, that is, where the use would not affect the value of, or the market for, the author’s work. Photocopying an old newspaper clipping to send to a friend may be an example; pinning a quotation on one’s bulletin board may be another. In each of these cases, the effect on the author is truly de minimis. Thus, even though these uses provide no benefit to the public at large, no purpose is served by preserving the author’s monopoly, and the use may be regarded as fair.

Courts should move with caution, however, in depriving authors of protection from unproductive “ordinary” uses. As has been noted above, even in the case of a productive use, § 107(4) requires consideration of “the effect of the use upon the potential market for or value of the copyrighted work” (emphasis added). “[A] particular use which may seem to have little or no economic impact on the author’s rights today can assume tremendous importance in times to come.” Register’s Supplementary Report 14. Although such a use may seem harmless when viewed in isolation, “[i]solated instances of minor infringements, when multiplied many times, become in the aggregate a major inroad on copy­right that must be prevented.” 1975 Senate Report 65.

I therefore conclude that, at least when the proposed use is an unproductive one, a copyright owner need prove only a potential for harm to the market for or the value of the copy­righted work. See 3 M. Nimmer, Copyright § 13.05[E][4][c], p. 13-84 (1983). Proof of actual harm, or even probable harm, may be impossible in an area where the effect of a new technology is speculative, and requiring such proof would present the “real danger ... of confining the scope of an au­thor’s rights on the basis of the present technology so that, as the years go by, his copyright loses much of its value because of unforeseen technical advances.” Register’s Supplemen­tary Report 14. Infringement thus would be found if the copyright owner demonstrates a reasonable possibility that harm will result from the proposed use. When the use is one that creates no benefit to the public at large, copyright pro­tection should not be denied on the basis that a new technol­ogy that may result in harm has not yet done so.

The Studios have identified a number of ways in which VTR recording could damage their copyrights. VTR re­cording could reduce their ability to market their works in movie theaters and through the rental or sale of prerecorded videotapes or videodiscs; it also could reduce their rerun au­dience, and consequently the license fees available to them for repeated showings. Moreover, advertisers may be will­ing to pay for only “live” viewing audiences, if they believe VTR viewers will delete commercials or if rating services are unable to measure VTR use; if this is the case, VTR record­ing could reduce the license fees the Studios are able to charge even for first-run showings. Library-building may raise the potential for each of the types of harm identified by the Studios, and time-shifting may raise the potential for substantial harm as well.35

Although the District Court found no likelihood of harm from VTR use, 480 F. Supp., at 468, I conclude that it ap­plied an incorrect substantive standard and misallocated the burden of proof. The District Court reasoned that the Stu­dios had failed to prove that library-building would occur “to any significant extent,” id., at 467; that the Studios’ prere­corded videodiscs could compete with VTR recordings and were “arguably . . . more desirable,” ibid.; that it was “not clear that movie audiences will decrease,” id., at 468; and that the practice of deleting commercials “may be too te­dious” for many viewers, ibid. To the extent any decrease in advertising revenues would occur, the court concluded that the Studios had “marketing alternatives at hand to recoup some of that predicted loss.” Id., at 452. Because the Stu­dios’ prediction of harm was “based on so many assumptions and on a system of marketing which is rapidly changing,” the court was “hesitant to identify ‘probable effects’ of home-use copying.” Ibid.

The District Court’s reluctance to engage in prediction in this area is understandable, but, in my view, the court was mistaken in concluding that the Studios should bear the risk created by this uncertainty. The Studios have demon­strated a potential for harm, which has not been, and could not be, refuted at this early stage of technological development.

The District Court's analysis of harm, moreover, failed to consider the effect of VTR recording on “the potential mar­ket for or the value of the copyrighted work,” as required by § 107(4).36 The requirement that a putatively infringing use of a copyrighted work, to be “fair,” must not impair a “poten­tial” market for the work has two implications. First, an infringer cannot prevail merely by demonstrating that the copyright holder suffered no net harm from the infringer’s ac­tion. Indeed, even a showing that the infringement has re­sulted in a net benefit to the copyright holder will not suffice. Rather, the infringer must demonstrate that he had not im­paired the copyright holder’s ability to demand compensation from (or to deny access to) any group who would otherwise be willing to pay to see or hear the copyrighted work. Second, the fact that a given market for a copyrighted work would not be available to the copyright holder were it not for the in-­fringer’s activities does not permit the infringer to exploit that market without compensating the copyright holder. See Iowa State University Research Foundation, Inc. v. American Broadcasting Cos., 621 F. 2d 57 (CA2 1980).

In this case, the Studios and their amici demonstrate that the advent of the VTR technology created a potential market for their copyrighted programs. That market consists of those persons who find it impossible or inconvenient to watch the programs at the time they are broadcast, and who wish to watch them at other times. These persons are willing to pay for the privilege of watching copyrighted work at their con­venience, as is evidenced by the fact that they are willing to pay for VTR’s and tapes; undoubtedly, most also would be willing to pay some kind of royalty to copyright holders. The Studios correctly argue that they have been deprived of the ability to exploit this sizable market.

It is thus apparent from the record and from the findings of the District Court that time-shifting does have a substantial adverse effect upon the “potential market for” the Studios’ copyrighted works. Accordingly, even under the formula­tion of the fair use doctrine advanced by Sony, time-shifting cannot be deemed a fair use.

V

Contributory Infringement

From the Studios’ perspective, the consequences of home VTR recording are the same as if a business had taped the Studios’ works off the air, duplicated the tapes, and sold or rented them to members of the public for home viewing. The distinction is that home VTR users do not record for commercial advantage; the commercial benefit accrues to the manufacturer and distributors of the Betamax. I thus must proceed to discuss whether the manufacturer and distribu­tors can be held contributorily liable if the product they sell is used to infringe.

It is well established that liability for copyright infringe­ment can be imposed on persons other than those who actu­ally carry out the infringing activity. Kalem Co. v. Harper Brothers, 222 U. S. 55, 62-63 (1911); 3 M. Nimmer, Copy­right § 12.04[A] (1983); see Twentieth Century Music Corp. v. Aiken, 422 U. S., at 160, n. 11; Buck v. Jewell-LaSalle Realty Co., 283 U. S. 191, 198 (1931). Although the liability provision of the 1976 Act provides simply that “[ajnyone who violates any of the exclusive rights of the copyright owner . . . is an infringer of the copyright,” 17 U. S. C. § 501(a) (1982 ed.), the House and Senate Reports demonstrate that Congress intended to retain judicial doctrines of contributory infringement. 1975 Senate Report 57; 1976 House Report 61.37

The doctrine of contributory copyright infringement, how­ever, is not well defined. One of the few attempts at defini­tion appears in Gershwin Publishing Corp. v. Columbia Art­ists Management, Inc., 443 F. 2d 1159 (CA2 1971). In that case the Second Circuit stated that “one who, with knowl­edge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.” Id., at 1162 (footnote omitted). While I have no quarrel with this general state­ment, it does not easily resolve the present case; the District Court and the Court of Appeals, both purporting to apply it, reached diametrically opposite results.

A

In absolving Sony from liability, the District Court rea­soned that Sony had no direct involvement with individual Betamax users, did not participate in any off-the-air copying, and did not know that such copying was an infringement of the Studios’ copyright. 480 F. Supp., at 460. I agree with the Gershwin court that contributory liability may be im­posed even when the defendant has no formal control over the infringer. The defendant in Gershwin was a concert pro­moter operating through local concert associations that it sponsored; it had no formal control over the infringing per­formers themselves. 443 F. 2d, at 1162-1163. See also Twentieth Century Music Corp. v. Aiken, 422 U. S., at 160, n. 11. Moreover, a finding of contributory infringement has never depended on actual knowledge of particular instances of infringement; it is sufficient that the defendant have rea­son to know that infringement is taking place. 443 F. 2d, at 1162; see Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc., 256 F. Supp. 399 (SDNY 1966).38 In the so-­called “dance hall” cases, in which questions of contributory infringement arise with some frequency, proprietors of en­tertainment establishments routinely are held liable for un­authorized performances on their premises, even when they have no knowledge that copyrighted works are being per­formed. In effect, the proprietors in those cases are charged with constructive knowledge of the performances.39

Nor is it necessary that the defendant be aware that the infringing activity violates the copyright laws. Section 504(c)(2) of the 1976 Act provides for a reduction in statutory damages when an infringer proves he “was not aware and had no reason to believe that his or her acts constituted an infringement of copyright,” but the statute establishes no general exemption for those who believe their infringing activities are legal. Moreover, such an exemption would be meaningless in a case such as this, in which prospective relief is sought; once a court has established that the copying at issue is infringement, the defendants are necessarily aware of that fact for the future. It is undisputed in this case that Sony had reason to know the Betamax would be used by some owners to tape copyrighted works off the air. See 480 F. Supp., at 459-460.

The District Court also concluded that Sony had not caused, induced, or contributed materially to any infringing activities of Betamax owners. Id., at 460. In a case of this kind, however, causation can be shown indirectly; it does not depend on evidence that particular Betamax owners relied on particular advertisements. In an analogous case decided just two Terms ago, this Court approved a lower court’s con­clusion that liability for contributory trademark infringement could be imposed on a manufacturer who “suggested, even by implication” that a retailer use the manufacturer’s goods to infringe the trademark of another. Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 851 (1982); see id., at 860 (opinion concurring in result). I think this stand­ard is equally appropriate in the copyright context.

The District Court found that Sony has advertised the Betamax as suitable for off-the-air recording of “favorite shows,” “novels for television,” and “classic movies,” 480 F. Supp., at 436, with no visible warning that such recording could constitute copyright infringement. It is only with the aid of the Betamax or some other VTR, that it is possible today for home television viewers to infringe copyright by recording off-the-air. Off-the-air recording is not only a foreseeable use for the Betamax, but indeed is its intended use. Under the circumstances, I agree with the Court of Appeals that if off-the-air recording is an infringement of copyright, Sony has induced and materially contributed to the infringing conduct of Betamax owners.40

B

Sony argues that the manufacturer or seller of a product used to infringe is absolved from liability whenever the prod­uct can be put to any substantial noninfringing use. Brief for Petitioners 41-42. The District Court so held, borrowing the “staple article of commerce” doctrine governing liability for contributory infringement of patents. See 85 U. S. C. §271.41 This Court today is much less positive. See ante, at 440-442. I do not agree that this technical judge-made doctrine of patent law, based in part on considerations irrele­vant to the field of copyright, see generally Dawson Chemi­cal Co. v. Rohm & Haas Co., 448 U. S. 176, 187-199 (1980), should be imported wholesale into copyright law. Despite their common constitutional source, see U. S. Const., Art. I, § 8, cl. 8, patent and copyright protections have not devel­oped in a parallel fashion, and this Court in copyright cases in the past has borrowed patent concepts only sparingly. See Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 345-346 (1908).

I recognize, however, that many of the concerns underly­ing the “staple article of commerce” doctrine are present in copyright law as well. As the District Court noted, if liabil­ity for contributory infringement were imposed on the manu­facturer or seller of every product used to infringe — a type­writer, a camera, a photocopying machine — the “wheels of commerce” would be blocked. 480 F. Supp., at 461; see also Kalem Co. v. Harper Brothers, 222 U. S., at 62.

I therefore conclude that if a significant portion of the product’s use is noninfringing, the manufacturers and sellers cannot be held contributorily liable for the product’s infring­ing uses. See ante, at 440-441. If virtually all of the prod­uct’s use, however, is to infringe, contributory liability may be imposed; if no one would buy the product for noninfringing purposes alone, it is clear that the manufacturer is purposely profiting from the infringement, and that liability is appro­priately imposed. In such a case, the copyright owner’s monopoly would not be extended beyond its proper bounds; the manufacturer of such a product contributes to the infring­ing activities of others and profits directly thereby, while providing no benefit to the public sufficient to justify the infringement.

The Court of Appeals concluded that Sony should be held liable for contributory infringement, reasoning that “[video­tape recorders are manufactured, advertised, and sold for the primary purpose of reproducing television programming,” and “[virtually all television programming is copyrighted material.” 659 F. 2d, at 975. While I agree with the first of these propositions,42 the second, for me, is problematic. The key question is not the amount of television programming that is copyrighted, but rather the amount of VTR usage that is infringing.43 Moreover, the parties and their amici have argued vigorously about both the amount of television pro­gramming that is covered by copyright and the amount for which permission to copy has been given. The proportion of VTR recording that is infringing is ultimately a question of fact,44 and the District Court specifically declined to make findings on the “percentage of legal versus illegal home-use recording.” 480 F. Supp., at 468. In light of my view of the law, resolution of this factual question is essential. I there­fore would remand the case for further consideration of this by the District Court.

VI

The Court has adopted an approach very different from the one I have outlined. It is my view that the Court’s approach alters dramatically the doctrines of fair use and contributory infringement as they have been developed by Congress and the courts. Should Congress choose to respond to the Court’s decision, the old doctrines can be resurrected. As it stands, however, the decision today erodes much of the coherence that these doctrines have struggled to achieve.

The Court’s disposition of the case turns on its conclusion that time-shifting is a fair use. Because both parties agree that time-shifting is the primary use of VTR’s, that conclu­sion, if correct, would settle the issue of Sony’s liability under almost any definition of contributory infringement. The Court concludes that time-shifting is fair use for two reasons. Each is seriously flawed.

The Court’s first reason for concluding that time-shifting is fair use is its claim that many copyright holders have no ob­jection to time-shifting, and that “respondents have, no right to prevent other copyright holders from authorizing it for their programs.” Ante, at 442. The Court explains that a finding of contributory infringement would “inevitably frus­trate the interests of broadcasters in reaching the portion of their audience that is available only through time-shifting.” Ante, at 446. Such reasoning, however, simply confuses the question of liability with the difficulty of fashioning an appro­priate remedy. It may be that an injunction prohibiting the sale of VTR’s would harm the interests of copyright holders who have no objection to others making copies of their pro­grams. But such concerns should and would be taken into account in fashioning an appropriate remedy once liability has been found. Remedies may well be available that would not interfere with authorized time-shifting at all. The Court of Appeals mentioned the possibility of a royalty payment that would allow VTR sales and time-shifting to continue un­abated, and the parties may be able to devise other narrowly tailored remedies. Sony may be able, for example, to build a VTR that enables broadcasters to scramble the signal of individual programs and “jam” the unauthorized recording of them. Even were an appropriate remedy not available at this time, the Court should not misconstrue copyright holders’ rights in a manner that prevents enforcement of them when, through development of better techniques, an appropriate remedy becomes available.45

The Court’s second stated reason for finding that Sony is not liable for contributory infringement is its conclusion that even unauthorized time-shifting is fair use. Ante, at 447 et seq. This conclusion is even more troubling. The Court begins by suggesting that the fair use doctrine operates as a general “equitable rule of reason.” That interpretation mischaracterizes the doctrine, and simply ignores the lan­guage of the statute. Section 107 establishes the fair use doctrine “for purposes such as criticism, comment, news re­porting, teaching, . . . scholarship, or research.” These are all productive uses. It is true that the legislative history states repeatedly that the doctrine must be applied flexibly on a case-by-case basis, but those references were only in the context of productive uses. Such a limitation on fair use comports with its purpose, which is to facilitate the creation of new works. There is no indication that the fair use doc­trine has any application for purely personal consumption on the scale involved in this case,46 and the Court’s application of it here deprives fair use of the major cohesive force that has guided evolution of the doctrine in the past.

Having bypassed the initial hurdle for establishing that a use is fair, the Court then purports to apply to time-shifting the four factors explicitly stated in the statute. The first is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educa­tional purposes.” §107(1). The Court confidently describes time-shifting as a noncommercial, nonprofit activity. It is clear, however, that personal use of programs that have been copied without permission is not what § 107(1) protects. The intent of the section is to encourage users to engage in activi­ties the primary benefit of which accrues to others. Time-­shifting involves no such humanitarian impulse. It is like­wise something of a mischaracterization of time-shifting to describe it as noncommercial in the sense that that term is used in the statute. As one commentator has observed, time-shifting is noncommercial in the same sense that steal­ing jewelry and wearing it — instead of reselling it — is non­commercial.47 Purely consumptive uses are certainly not what the fair use doctrine was designed to protect, and the awkwardness of applying the statutory language to time-­shifting only makes clearer that fair use was designed to pro­tect only uses that are productive.

The next two statutory factors are all but ignored by the Court — though certainly not because they have no applicabil­ity. The second factor — “the nature of the copyrighted work” — strongly supports the view that time-shifting is an infringing use. The rationale guiding application of this fac­tor is that certain types of works, typically those involving “more of diligence than of originality or inventiveness,” New York Times Co. v. Roxbury Data Interface, Inc., 434 P. Supp. 217, 221 (NJ 1977), require less copyright protection than other original works; Thus, for example, informational works, such as news reports, that readily lend themselves to productive use by others, are less protected than creative works of entertainment. Sony’s own surveys indicate that entertainment shows account for more than 80% of the pro­grams recorded by Betamax owners.48

The third statutory factor — “the amount and substanti-­ality of the portion used” — is even more devastating to the Court’s interpretation. It is undisputed that virtually all VTR owners record entire works, see 480 F. Supp., at 454, thereby creating an exact substitute for the copyrighted orig­inal. Fair use is intended to allow individuals engaged in productive uses to copy small portions of original works that will facilitate their own productive endeavors. Time-shifting bears no resemblance to such activity, and the complete du­plication that it involves might alone be sufficient to preclude a finding of fair use. It is little wonder that the Court has chosen to ignore this statutory factor.49

The fourth factor requires an evaluation of “the effect of the use upon the potential market for or value of the copy­righted work.” This is the factor upon which the Court focuses, but once again, the Court has misread the statute. As mentioned above, the statute requires a court to consider the effect of the use on the potential market for the copy­righted work. The Court has struggled mightily to show that VTR use has not reduced the value of the Studios’ copy­righted works in their present markets. Even if true, that showing only begins the proper inquiry. The development of the VTR has created a new market for the works produced by the Studios. That market consists of those persons who desire to view television programs at times other than when they are broadcast, and who therefore purchase VTR record­ers to enable them to time-shift.50 Because time-shifting of the Studios’ copyrighted works involves the copying of them, however, the Studios are entitled to share in the benefits of that new market. Those benefits currently go to Sony through Betamax sales. Respondents therefore can show harm from VTR use simply by showing that the value of their copyrights would increase if they were compensated for the copies that are used in the new market. The existence of this effect is self-evident.

Because of the Court’s conclusion concerning the legality of time-shifting, it never addresses the amount of noninfringing use that a manufacturer must show to absolve itself from liability as a contributory infringer. Thus, it is difficult to discuss how the Court’s test for contributory infringement would operate in practice under a proper analysis of time-­shifting. One aspect of the test as it is formulated by the Court, however, particularly deserves comment. The Court explains that a manufacturer of a product is not liable for con­tributory infringement as long as the product is “capable of substantial noninfringing uses.” Ante, at 442 (emphasis sup­plied). Such a definition essentially eviscerates the concept of contributory infringement. Only the most unimaginative manufacturer would be unable to demonstrate that a image-­duplicating product is “capable” of substantial noninfringing uses. Surely Congress desired to prevent the sale of prod­ucts that are used almost exclusively to infringe copyrights; the fact that noninfringing uses exist presumably would have little bearing on that desire.

More importantly, the rationale for the Court’s narrow standard of contributory infringement reveals that, once again, the Court has confused the issue of liability with that of remedy. The Court finds that a narrow definition of con­tributory infringement is necessary in order to protect “the rights of others freely to engage in substantially unrelated areas of commerce.” Ante, at 442. But application of the contributory infringement doctrine implicates such rights only if the remedy attendant upon a finding of liability were an injunction against the manufacture of the product in ques­tion. The issue of an appropriate remedy is not before the Court at this time, but it seems likely that a broad injunction is not the remedy that would be ordered. It is unfortunate that the Court has allowed its concern over a remedy to infect its analysis of liability.

VII

The Court of Appeals, having found Sony liable, remanded for the District Court to consider the propriety of injunctive or other relief. Because of my conclusion as to the issue of liability, I, too, would not decide here what remedy would be appropriate if liability were found. I concur, however, in the Court of Appeals’ suggestion that an award of damages, or continuing royalties, or even some form of limited injunc­tion, may well be an appropriate means of balancing the equi­ties in this case.51 Although I express no view on the merits of any particular proposal, I am certain that, if Sony were found liable in this case, the District Court would be able to fashion appropriate relief. The District Court might con­clude, of course, that a continuing royalty or other equitable relief is not feasible. The Studios then would be relegated to statutory damages for proven instances of infringement. But the difficulty of fashioning relief, and the possibility that complete relief may be unavailable, should not affect our interpretation of the statute.

Like so many other problems created by the interaction of copyright law with a new technology, “[t]here can be no really satisfactory solution to the problem presented here, until Congress acts.” Twentieth Century Music Corp. v. Aiken, 422 U. S., at 167 (dissenting opinion). But in the ab­sence of a congressional solution, courts cannot avoid difficult problems by refusing to apply the law. We must “take the Copyright Act... as we find it,” Fortnightly Corp. v. United Artists Television, Inc., 392 U. S., at 401-402, and “do as little damage as possible to traditional copyright principles . . . until the Congress legislates.” Id., at 404 (dissenting opinion).

1

The Betamax has three primary components: a tuner that receives tele­vision (“RF”) signals broadcast over the airwaves; an adapter that con­verts the RF signals into audio-video signals; and a recorder that places the audio-video signals on magnetic tape. Sony also manufactures VTR’s without built-in tuners; these are capable of playing back prerecorded tapes and recording home movies on videotape, but cannot record off the air. Since the Betamax has its own tuner, it can be used to record off one channel while another channel is being watched.

The Betamax is available with auxiliary features, including a timer, a pause control, and a fast-forward control; these allow Betamax owners to record programs without being present, to avoid (if they are present) recording commercial messages, and to skip over commercials while play­ing back the recording. Videotape is reusable; the user erases its record by recording over it.

2

This ease involves only the home recording for home use of television programs broadcast free over the airwaves. No issue is raised concerning cable or pay television, or the sharing or trading of tapes.

3

At the trial, the Studios proved 32 individual instances where their copyrighted works were recorded on Betamax VTR’s. Two of these in­stances occurred after January 1, 1978, the primary effective date of the 1976 Act; all the others occurred while the 1909 Act was still effective. My analysis focuses primarily on the 1976 Act, but the principles governing copyright protection for these works are the same under either Act.

4

Act of Feb. 3,1831, eh. 16, 4 Stat. 436; Act of July 8,1870, §§ 85-111,16 Stat. 212-217; Act of Mar. 4, 1909, 35 Stat. 1075 (formerly codified as 17 U. S. C. § 1 et seq.); Copyright Revision Act of 1976, 90 Stat. 2541 (codified as 17 U. S. C. § 101 et seq. (1982 ed.)).

5

Section 102(a) provides:

“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

“(1) literary works;

“(2) musical works, including any accompanying words;

“(3) dramatic works, including any accompanying music;

“(4) pantomimes and choreographic works;

“(5) pictorial, graphic, and sculptural works;

“(6) motion pictures and other audiovisual works; and

“(7) sound recordings.”

Definitions of terms used in § 102(a)(6) are provided by § 101: “Audiovisual works” are “works that consist of a series of related images which are in­trinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together -with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.” And “motion pictures” are “audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with ac­companying sounds, if any.” Most commercial television programs, if fixed on film or tape at the time of broadcast or before, qualify as “audio­visual works.” Since the categories set forth in § 102(a) are not mutually exclusive, a particular television program may also qualify for protection as a dramatic, musical, or other type of work.

6

Section 106 provides:

“Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

“(1) to reproduce the copyrighted work in copies or phonorecords;

“(2) to prepare derivative works based upon the copyrighted work;

“(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

“(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and

“(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the indi­vidual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.”

7

A “phonorecord” is defined by § 101 as a reproduction of sounds other than sounds accompanying an audiovisual work, while a “copy” is a re­production of a work in any form other than a phonorecord.

8

Section 107 provides:

“Notwithstanding the provisions of section 106, the fair use of a copy­righted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criti­cism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of 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.”

Section 101 makes it clear that the four factors listed in this section are “illustrative and not limitative.”

9

The 1976 Act was the product of a revision effort lasting more than 20 years. Spurred by the recognition that “significant developments in technology and communications” had rendered the 1909 Act inadequate, S. Rep. No. 94-473, p. 47 (1975); see H. R. Rep. No. 94-1476, p. 47 (1976), Congress in 1955 authorized the Copyright Office to prepare a series of studies on all aspects of the existing copyright law. Thirty-four studies were prepared and presented to Congress. The Register of Copyrights drafted a comprehensive report with recommendations, House Committee on the Judiciary, Copyright Law Revision, Report of the Register of Copy­rights on the General Revision of the U. S. Copyright Law, 87th Cong., 1st Sess. (Comm. Print 1961) (Register’s 1961 Report), and general revision bills were introduced near the end of the 88th Congress in 1964. H. R. 11947/S. 3008, 88th Cong., 2d Sess. (1964). The Register issued a second report in 1965, with revised recommendations. House Committee on the Judiciary, Copyright Law Revision, pt. 6, Supplementary Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law: 1965 Revision Bill, 89th Cong., 1st Sess. (Comm. Print 1965) (Regis­ter’s Supplementary Report). Action on copyright revision was delayed from 1967 to 1974 by a dispute on cable television, see generally Second Supplementary Report of the Register of Copyrights on the General Revi­sion of the U. S. Copyright Law: 1975 Revision Bill, ch. V, pp. 2-26 (Draft Oct.-Dec. 1975) (Register’s Second Supplementary Report), but a compro­mise led to passage of the present Act in 1976.

10

Title 1 U. S. C. § 1 provides in relevant part:

“In determining the meaning of any Act of Congress, unless the con­text indicates otherwise . . . words importing the plural include the singular . . . .”

11

The library photocopying provisions of § 108 do not excuse any person who requests “a copy” from a library if the requester’s use exceeds fair use. § 108(f)(2). Moreover, a library is absolved from liability for the un­supervised use of its copying equipment provided that the equipment bears a notice informing users that “the making of a copy” may violate the copy­right law. § 108(f)(1).

12

For example, “the making of a single copy or phonorecord by an indi­vidual as a free service for a blind person” would be a fair use, as would “a single copy reproduction of an excerpt from a copyrighted work by a callig­rapher for a single client” or “a single reproduction of excerpts from a copy­righted work by a student calligrapher or teacher in a learning situation.” 1975 Senate Report 66-67; see 1976 House Report 73-74. Application of the fair use doctrine in these situations, of eourse, would be unnecessary if the 1976 Act created a general exemption for the making of a single copy.

13

professor Latman made special mention of the “personal use” issue be­cause the area was one that “has become disturbed by recent developments .... Photoduplieation devices may make authors’ and publishers’ groups apprehensive. The Copyright Charter recently approved by [the Interna­tional Confederation of Societies of Authors and Composers] emphasizes the concern of authors over ‘private’ uses which, because of technological developments, are said to be competing seriously with the author’s eco­nomic interests.” Latman Fair Use Study 33-34.

14

The one exemption proposed by the Register, permitting a library to make a single photocopy of an out-of-print work and of excerpts that a requester certified were needed for research, met with opposition and was not included in the bills initially introduced in Congress. See Register’s 1961 Report 26; H. R. 11947/S. 3008, 88th Cong., 2d Sess. (1964); Regis­ter’s Supplementary Report 26. A library copying provision was restored to the bill in 1969, after pressure from library associations. Register’s Second Supplementary Report, ch. Ill, pp. 10-11; see S. 543, 91st Cong., 1st Sess., § 108 (Comm. Print, Dec. 10, 1969); 1975 Senate Report 48.

15

The 1964 bills provided that the fair use of copyrighted material for purposes “such as criticism, comment, news reporting, teaching, scholar­ship, or research” was not an infringement of copyright, and listed four “factors to be considered” in determining whether any other particular use was fair. H. R. 11947/S. 3008, 88th Cong., 2d Sess., § 6 (1964). Revised bills, drafted by the Copyright Office in 1965, contained a fair use provision merely mentioning the doctrine but not indicating its scope: “Notwith­standing the provisions of section 106, the fair use of a copyrighted work is not an infringement of copyright.” H. R. 4347/S. 1006, 89th Cong., 1st Sess., § 107 (1965). The House Judiciary Committee restored the provi­sion to its earlier wording, H. R. Rep. No. 2237, 89th Cong., 2d Sess., 5, 58 (1966), and the language adopted by the Committee remained in the bill in later Congresses. See H. R. 2512/S. 597, 90th Cong., 1st Sess., § 107 (1967); S. 543, 91st Cong., 1st Sess., §107 (1969); S. 644, 92d Cong., 1st Sess., §107 (1971); S. 1361, 93d Cong., 1st Sess., §107 (1973); H. R. 2223/S. 22, 94th Cong., 1st Sess., § 107 (1975). With a few additions by the House Judiciary Committee in 1976, see 1976 House Report 5; H. R. Conf. Rep. No. 94-1733, p. 70 (1976), the same language appears in § 107 of the 1976 Act.

16

In Williams & Wilkins Co. v. United States, 203 Ct. Cl. 74, 487 F. 2d 1345 (1973), aff’d by an equally divided Court, 420 U. S. 376 (1975), decided during the process of the revision of the copyright statutes, the Court of Claims suggested that copying for personal use might be outside the scope of copyright protection under the 1909 Act. The court reasoned that be­cause “hand copying” for personal use has always been regarded as permis­sible, and because the practice of making personal copies continued after typewriters and photostat machines were developed, the making of per­sonal copies by means other than hand copying should be permissible as well. 203 Ct. CL, at 84-88, 487 F. 2d, at 1350-1352.

There appear to me to be several flaws in this reasoning. First, it is by no means clear that the making of a “hand copy” of an entire work is permissible; the most that can be said is that there is no reported case on the subject, possibly because no copyright owner ever thought it worth­while to sue. See Latman Fair Use Study 11-12; 3 M. Nimmer, Copyright § 13.05[E][4][a] (1983). At least one early treatise asserted that infringe­ment would result “if an individual made copies for his personal use, even in his own handwriting, as there is no rule of law excepting manuscript copies from the law of infringement.” A. Weil, American Copyright Law § 1066 (1917). Second, hand copying or even copying by typewriter is self-­limiting. The drudgery involved in making hand copies ordinarily ensures that only necessary and fairly small portions of a work are taken; it is un­likely that any user would make a hand copy as a substitute for one that could be purchased. The harm to the copyright owner from hand copying thus is minimal. The recent advent of inexpensive and readily available copying machines, however, has changed the dimensions of the problem. See Register’s Second Supplementary Report, ch. Ill, p. 3; Hearings on H. R. 2223 before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 94th Cong., 1st Sess., 194 (1975) (1975 House Hearings) (remarks of Rep. Dan-­ielson); id., at 234 (statement of Robert W. Cairns); id., at 250 (remarks of Rep. Danielson); id., at 354 (testimony of Irwin Karp); id., at 467 (testi­mony of Rondo Cameron); id., at 1795 (testimony of Barbara Ringer, Reg­ister of Copyrights). Thus, “[t]he supposition that there is no tort in­volved in a scholar copying a copyrighted text by hand does not much advance the question of machine copying.” B. Kaplan, An Unhurried View of Copyright 101-102 (1967).

17

In a trio of eases, Fortnightly Corp. v. United Artists Television, Inc., 392 U. S. 390, 398 (1968); Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U. S. 394, 403-405 (1974); and Twentieth Century Music Corp. v. Aiken, 422 U. S. 151 (1975), this Court had held that the reception of a radio or television broadcast was not a “performance” under the 1909 Act. The Court’s “narrow construction” of the word “perform” was “com­pletely overturned by the [1976 Act] and its broad definition of ‘perform’ in section 101.” 1976 House Report 87.

18

A work is performed “publicly” if it takes place “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” § 101.

19

One purpose of the exemption for private performances was to permit the home viewing of lawfully made videotapes. The Register noted in 1961 that “[n]ew technical devices will probably make it practical in the future to reproduce televised motion pictures in the home. We do not be­lieve the private use of such a reproduction can or should be precluded by copyright.” Register’s 1961 Report 30 (emphasis added). The Register did not suggest that the private making of a reproduction of a televised motion picture would be permitted by the copyright law. The Register later reminded Congress that “[i]n general the concept of ‘performance’ must be distinguished sharply from the reproduction of copies.” Regis­ter’s Supplementary Report 22.

20

During hearings on this provision, Representative Danielson inquired whether it would apply to works of fiction such as “Gone With the Wind,” or whether it was limited to “strictly technical types of information.” The uncontradicted response was that it would apply only in “general terms of science . .. [and] the useful arts.” 1975 House Hearings 251 (testimony of Robert W. Cairns); cf. id., at 300 (statement of Harry Rosenfield) (“We are not asking ... for the right to copy ‘Gone With the Wind’ ”).

21

The mention in the Senate and House Reports of situations in which copies for private use would be permissible under the fair use doctrine — for example, the making of a free copy for a blind person, 1975 Senate Report 66; 1976 House Report 73, or the “recordings of performances by music stu­dents for purposes of analysis and criticism,” 1975 Senate Report 63— would be superfluous as well. See n. 12, supra.

22

The following exchange took place during the testimony of Barbara Ringer, then Assistant Register of Copyrights:

“[Rep.] Biester. ... I can tell you I must have a small pirate in my own home. My son has a cassette tape recorder, and as a particular record be­comes a hit, he will retrieve it onto his little set. . . . [T]his legislation, of course, would not point to his activities, would it?

“Miss Ringer. I think the answer is clearly,‘No, it would not.’ I have spoken at a couple of seminars on video cassettes lately, and this question is usually asked: ‘What about the home recorders?’ The answer I have given and will give again is that this is something you cannot control. You simply cannot control it. My own opinion, whether this is philosophical dogma or not, is that sooner or later there is going to be a crunch here. But that is not what this legislation is addressed to, and I do not see the crunch coming in the immediate future. ... I do not see anybody going into anyone’s home and preventing this sort of thing, or forcing legisla­tion that would engineer a piece of equipment not to allow home taping.” Hearings on S. 646 and H. R. 6927 before Subcommittee No. 3 of the House Committee on the Judiciary, 92d Cong., 1st Sess., 22-23 (1971) (1971 House Hearings).

23

Shortly before passage of the bill, a colloquy took place between Representative Kastenmeier, Chairman of the House Subcommittee that produced the bill, and Representative Kazen, who was not on the Subcommittee:

“Mr. KAZEN. Am I correct in assuming that the bill protects copy­righted material that is duplicated for commercial purposes only?

“Mr. KASTENMEIER. Yes.

“Mr. KAZEN. In other words, if your child were to record off of a pro­gram which comes through the air on the radio or television, and then used it for her own personal pleasure, for listening pleasure, this use would not be included under the penalties of this bill?

“Mr. KASTENMEIER. This is not included in the bill. I am glad the gentleman raises the point.

“On page 7 of the report, under ‘Home Recordings,’ Members will note that under the bill the same practice which prevails today is called for; namely, this is considered both presently and under the proposed law to be fair use. The child does not do this for commercial purposes. This is made clear in the report.” 117 Cong. Rec. 34748-34749 (1971).

24

The 1909 Act’s grant of an exclusive right to “copy,” § 1(a), was of no assistance to the owner of a copyright in a sound recording, because a reproduction of a sound recording was technically considered not to be a “copy.” See 1971 House Hearings 18 (testimony of Barbara Ringer, Assistant Register of Copyrights); 1971 Amendment, § 1(e), 85 Stat. 391 (formerly codified as 17 U. S. C. §26) (“For the purposes of [specified sections, not including § 1(a)], but not for any other purpose, a reproduc­tion of a [sound recording] shall be considered to be a copy thereof”). This concept is carried forward into the 1976 Act, which distinguishes between “copies” and “phonoreeords.” See n. 7, supra.

25

During consideration of the 1976 Act, Congress, of course, was well aware of the limited nature of the protection granted to sound recordings under the 1971 Amendment. See 1975 House Hearings 113 (testimony of Barbara Ringer, Register of Copyrights) (1971 Amendment “created a copyright in a sound recording . . . but limited it to the particular situation of so-called piracy”); id., at 1380 (letter from John Lorenz, Acting Librar­ian of Congress) (under 1971 Amendment “only the unauthorized reproduc­tion and distribution to the public of copies of the sound recording is pro­hibited. Thus, the duplication of sound recordings for private, personal use and the performance of sound recordings through broadcasting or other means are outside the scope of the amendment”).

26

Representative Kastenmeier, the principal House sponsor of the 1976 revision bill and Chairman of the House Subcommittee that produced it, made this explicit on the opening day of the House hearings:

“[F]rom time to time, certain areas have not been covered in the bill. But is it not the case, this being a unified code, that the operation of the bill does apply whether or not we specifically deal with a subject or not? . . .

“Therefore, we can really not fail to deal with an issue. It will be dealt with one way or the other. The code, title 17, will cover it. So we have made a conscientious decision even by omission. . . .

“. . . By virtue of passing this bill, we will deal with every issue. Whether we deal with it completely or not for the purpose of resolving the issues involved is the only question, not whether it has dealt with the four corners of the bill because the four corners of the bill will presume to deal with everything in copyright.” Id., at 115.

27

The precise phrase “fair use” apparently did not enter the case law until 1869, see Lawrence v. Dana, 15 F. Cas. 26, 60 (No. 8,136) (CC Mass.), but the doctrine itself found early expression in Folsom v. Marsh, 9 F. Cas. 342 (No. 4,901) (CC Mass. 1841). Justice Story was faced there with the “intricate and embarrassing questio[n]” whether a biography con­taining copyrighted letters was “a justifiable use of the original materials, such as the law recognizes as no infringement of the copyright of the plain­tiffs.” Id., at 344, 348. In determining whether the use was permitted, it was necessary, said Justice Story, to consider “the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work. . . . Much must, in such cases, depend upon the nature of the new work, the value and extent of the copies, and the degree in which the original authors may be injured thereby.” Id., at 348-349.

Similar lists were compiled by later courts. See, e. g., Tennessee Fabri­cating Co. v. Moultrie Mfg. Co., 421 F. 2d 279, 283 (CA5), cert. denied, 398 U. S. 928 (1970); Mathews Conveyer Co. v. Palmer-Bee Co., 135 F. 2d 73, 85 (CA6 1943); Columbia Pictures Corp. v. National Broadcasting Co., 137 F. Supp. 348 (SD Cal. 1955); Shapiro, Bernstein & Co. v. P. F. Collier & Son Co., 26 USPQ 40, 43 (SDNY 1934); Hill v. Whalen & Martell, Inc., 220 F. 359, 360 (SDNY 1914).

28

“The world goes ahead because each of us builds on the work of our predecessors. ‘A dwarf standing on the shoulders of a giant can see far­ther than the giant himself.’” Chafee, Reflections on the Law of Copy­right: I, 45 Colum. L. Rev. 503, 511 (1945).

29

Quoting from the Register’s 1961 Report, the Senate and House Re­ports give examples of possible fair uses:

“ ‘quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or arti­cle, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduc­tion of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.’ ” 1975 Senate Report 61-62; 1976 House Report 65.

30

See, e. g., Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F. 2d 1171 (CA5 1980) (comparative advertising).

31

Professor Seltzer has characterized these lists of uses as “reflectfing] what in fact the subject matter of fair use has in the history of its adjudica­tion consisted in: it has always had to do with the use by a second author of a first author’s work.” L. Seltzer, Exemptions and Fair Use in Copyright 24 (1978) (emphasis removed). He distinguishes “the mere reproduction of a work in order to use it for its intrinsic purpose — to make what might be called the ‘ordinary’ use of it.” When copies are made for “ordinary” use of the work, “ordinary infringement has customarily been triggered, not notions of fair use” (emphasis in original). Ibid. See also 3 M. Nimmer, Copyright § 13.05[A][1] (1983) (“Use of a work in each of the foregoing con­texts either necessarily or usually involves its use in a derivative work”).

32

Williams & Wilkins Co. v. United States, 203 Ct. Cl. 74, 487 F. 2d 1345 (1973), aff’d by an equally divided Court, 420 U. S. 376 (1975), in­volved the photocopying of scientific journal articles; the Court of Claims stressed that the libraries performing the copying were “devoted solely to the advancement and dissemination of medical knowledge,” 203 Ct. Cl., at 91, 487 F. 2d, at 1354, and that “medical science would be seriously hurt if such library photocopying were stopped.” Id., at 95, 487 F. 2d, at 1356.

The issue of library copying is now covered by § 108 of the 1976 Act. That section, which Congress regarded as “authorizing] certain photo­copying practices which may not qualify as a fair use,” 1975 Senate Report 67; 1976 House Report 74, permits the making of copies only for “private study, scholarship, or research.” §§ 108(d)(1) and (e)(1).

33

In the words of Lord Mansfield: “[W]e must take care to guard against two extremes equally prejudicial; the one, that men of ability, who have employed their time for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour; the other, that the world may not be deprived of improvements, nor the progress of the arts be retarded.” Sayre v. Moore, as set forth in Cary v. Longman, 1 East 358, 361, n. (b), 102 Eng. Rep. 138, 140, n. (b) (K. B. 1785). See Register’s Supplementary Report 13.

34

This point was brought home repeatedly by the Register of Copy­rights. Mentioning the “multitude of technological developments” since passage of the 1909 Act, including “remarkable developments in the use of video tape,” Register’s Supplementary Report xiv-xv, the Register cautioned:

“I realize, more clearly now than I did in 1961, that the revolution in communications has brought with it a serious challenge to the author’s copyright. This challenge comes not only from the ever-growing commer­cial interests who wish to use the author’s works for private gain. An equally serious attack has come from people with a sincere interest in the public welfare who fully recognize . . . ‘that the real heart of civiliza­tion . . . owes its existence to the author’; ironically, in seeking to make the author’s works widely available by freeing them from copyright re­strictions, they fail to realize that they are whittling away the very thing that nurtures authorship in the first place. An accommodation among con­flicting demands must be worked out, true enough, but not by denying the fundamental constitutional directive: to encourage cultural progress by securing the author’s exclusive rights to him for a limited time.” Id., at xv; see 1975 House Hearings 117 (testimony of Barbara Ringer, Regis­ter of Copyrights).

35

A VTR owner who has taped a favorite movie for repeated viewing will be less likely to rent or buy a tape containing the same movie, watch a tele­vised rerun, or pay to see the movie at a theater. Although time-shifting may not replace theater or rerun viewing or the purchase of prerecorded tapes or discs, it may well replace rental usage; a VTR user who has re­corded a first-run movie for later viewing will have no need to rent a copy when he wants to see it. Both library-builders and time-shifters may avoid commercials; the library-builder may use the pause control to record without them, and all users may fast-forward through commercials on playback.

The Studios introduced expert testimony that both time-shifting and librarying would tend to decrease their revenue from copyrighted works. See 480 F. Supp., at 440. The District Court’s findings also show substan­tial library-building and avoidance of commercials. Both sides submitted surveys showing that the average Betamax user owns between 25 and 32 tapes. The Studios’ survey showed that at least 40% of users had more than 10 tapes in a “library”; Sony’s survey showed that more than 40% of users planned to view their tapes more than once; and both sides’ surveys showed that commercials were avoided at least 25% of the time. Id., at 438-439.

36

Concern over the impact of a use upon “potential” markets is to be found in cases decided both before and after § 107 lent Congress’ imprima­tur to the judicially created doctrine of fair use. See, e. g., Iowa State University Research Foundation, Inc. v. American Broadcasting Cos., 621 F. 2d 57, 60 (CA2 1980) (“the effect of the use on the copyright holder’s potential market for the work”); Meeropol v. Nizer, 560 F. 2d 1061, 1070 (CA2 1977) (“A key issue in fair use cases is whether the defendant’s work tends to diminish or prejudice the potential sale of plaintiff’s work”), cert. denied, 434 U. S. 1013 (1978); Williams & Wilkins Co. v. United States, 203 Ct. Cl., at 88, 487 F. 2d, at 1352 (“the effect of the use on a copyright owner’s potential market for and value of his work”); Encyclopaedia Bri­tannica Educational Corp. v. Crooks, 542 F. Supp. 1156, 1173 (WDNY 1982) (“[T]he concern here must be focused on a copyrighted work’s poten­tial market. It is perfectly possible that plaintiffs’ profits would have been greater, but for the kind of videotaping in question”) (emphasis in original).

37

This intent is manifested further by provisions of the 1976 Act that exempt from liability persons who, while not participating directly in any infringing activity, could otherwise be charged with contributory infringe­ment. See § 108(f)(1) (library not liable “for the unsupervised use of re­producing equipment located on its premises,” provided that certain warn­ings are posted); § 110(6) (“governmental body” or “nonprofit agricultural or horticultural organization” not liable for infringing performance by con­cessionaire “in the course of an annual agricultural or horticultural fair or exhibition”).

38

In Screen Gems, on which the Gershwin court relied, the court held that liability could be imposed on a shipper of unauthorized “bootleg” records and a radio station that broadcast advertisements of the records, provided they knew or should have known that the records were infring­ing. The court concluded that the records’ low price and the manner in which the records were marketed could support a finding of “constructive knowledge” even if actual knowledge were not shown.

39

See, e. g., Famous Music Corp. v. Bay State Harness Horse Racing & Breeding Assn., Inc., 554 F. 2d 1213 (CA1 1977); Dreamland Ball Room, Inc. v. Shapiro, Bernstein & Co., 36 F. 2d 354 (CA7 1929); M. Witmark & Sons v. Tremont Social & Athletic Club, 188 F. Supp. 787, 790 (Mass. 1960); see also Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 157 (1975); Buck v. Jewell-LaSalle Realty Co., 283 U. S. 191, 198-199 (1931); 3 M. Nimmer, Copyright § 12.04[A], p. 12-35 (1983).

Courts have premised liability in these cases on the notion that the de­fendant had the ability to supervise or control the infringing activities, see, e. g., Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F. 2d 304, 307 (CA2 1963); KECA Music, Inc. v. Dingus McGee’s Co., 432 F. Supp. 72, 74 (WD Mo. 1977). This notion, however, is to some extent fictional; the defendant cannot escape liability by instructing the performers not to play copyrighted music, or even by inserting a provision to that effect into the performers’ contract. Famous Music Corp. v. Bay State Harness Horse Racing & Breeding Assn., Inc., 554 F. 2d, at 1214-1215; KECA Music, Inc. v. Dingus McGee’s Co., 432 F. Supp., at 75; Shapiro, Bernstein & Co. v. Veltin, 47 F. Supp. 648, 649 (WD La. 1942). Congress expressly re­jected a proposal to exempt proprietors from this type of liability under the 1976 Act. See 1975 Senate Report 141-142; 1976 House Report 159-160; 1975 House Hearings 1812-1813 (testimony of Barbara Ringer, Register of Copyrights); id., at 1813 (colloquy between Rep. Pattison and Barbara Ringer).

The Court’s attempt to distinguish these cases on the ground of “con­trol,” ante, at 437, is obviously unpersuasive. The direct infringer ordi­narily is not employed by the person held liable; instead, he is an independ­ent contractor. Neither is he always an agent of the person held liable; Screen Gems makes this apparent.

40

My conclusion respecting contributory infringement does not include the retailer defendants. The District Court found that one of the retailer defendants had assisted in the advertising campaign for the Betamax, but made no other findings respecting their knowledge of the Betamax’s in­tended uses. I do not agree with the Court of Appeals, at least on this record, that the retailers “are sufficiently engaged in the enterprise to be held accountable,” 659 F. 2d 963, 976 (1981). In contrast, the advertising agency employed to promote the Betamax was far more actively engaged in the advertising campaign, and petitioners have not argued that the agency’s liability differs in any way from that of Sony Corporation and Sony Corporation of America.

41

The “staple article of commerce” doctrine protects those who manufac­ture products incorporated into or used with patented inventions — for ex­ample, the paper and ink used with patented printing machines, Henry v. A. B. Dick Co., 224 U. S. 1 (1912), or the dry ice used with patented refrig­eration systems, Carbice Corp. v. American Patents Corp., 283 U. S. 27 (1931). Because a patent holder has the right to control the use of the patented item as well as its manufacture, see Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 509-510 (1917); 35 U. S. C. § 271(a), such protection for the manufacturer of the incorporated product is necessary to prevent patent holders from extending their monopolies by suppressing competition in unpatented components and supplies suitable for use with the patented item. See Dawson Chemical Co. v. Rohm & Haas Co., 448 U. S. 176, 197-198 (1980). The doctrine of contributory patent infringement has been the subject of attention by the courts and by Congress, see id., at 202-212, and has been codified since 1952, 66 Stat. 792, but was never mentioned during the copyright law revision process as having any relevance to contributory copyright infringement.

42

Although VTR’s also may be used to watch prerecorded video cassettes and to make home motion pictures, these uses do not require a tuner such as the Betamax contains. See n. 1, supra. The Studios do not object to Sony’s sale of VTR’s without tuners. Brief for Respondents 5, n. 9. In considering the noninfringing uses of the Betamax, therefore, those uses that would remain possible without the Betamax’s built-in tuner should not be taken into account.

43

Noninfringing uses would include, for example, recording works that are not protected by copyright, recording works that have entered the public domain, recording with permission of the copyright owner, and, of course, any recording that qualifies as fair use. See, e. g., Bruzzone v. Miller Brewing Co., 202 USPQ 809 (ND Cal. 1979) (use of home VTR for market research studies).

44

Sony asserts that much or most television broadcasting is available for home recording because (1) no copyright owner other than the Studios has brought an infringement action, and (2) much televised material is ineligi­ble for copyright protection because videotapes of the broadcasts are not kept. The first of these assertions is irrelevant; Sony’s liability does not turn on the fact that only two copyright owners thus far have brought suit. The amount of infringing use must be determined through consideration of the television market as a whole. Sony’s second assertion is based on a faulty premise; the Copyright Office permits audiovisual works transmit­ted by television to be registered by deposit of sample frames plus a de­scription of the work. See 37 CFR §§ 202.20(c)(2)(ii) and 202.21(g) (1983). Moreover, although an infringement action cannot be brought unless the work is registered, 17 U. S. C. § 411(a) (1982 ed.), registration is not a con­dition of copyright protection. § 408(a). Copying an unregistered work still may be infringement. Cf. § 506(a) (liability for criminal copyright infringement; not conditioned on prior registration).

45

Even if concern with remedy were appropriate at the. liability stage, the Court's use of the District Court’s findings is’ somewhat cavalier. The Court relies heavily on testimony by representatives of professional sports leagues to the effect that they have no objection to VTR recording. The Court never states, however, whether the sports leagues are copyright holders, and if so, whether they have exclusive copyrights to sports broad­casts. It is therefore unclear whether the sports leagues have authority to consent to copying the broadcasts of their events.

Assuming that the various sports leagues do have exclusive copyrights in some of their broadcasts, the amount of authorized time-shifting still would not be overwhelming. Sony’s own survey indicated that only 7.3% of all Betamax use is to record sports events of all kinds. Tr. 2353, De­fendants’ Exh. OT, Table 20. Because Sony’s witnesses did not represent all forms of sports events, moreover, this figure provides only a tenuous basis for this Court to engage in factfinding of its own.

The only witness at trial who was clearly an exclusive copyright owner and who expressed no objection to unauthorized time-shifting was the owner of the copyright in Mister Rogers’ Neighborhood. But the Court cites no evidence in the record to the effect that anyone makes VTR copies of that program. The simple fact is that the District Court made no find­ings on the amount of authorized time-shifting that takes place. The Court seems to recognize this gap in its reasoning, and phrases its argu­ment as a hypothetical. The Court states: “If there are millions of owners of VTR’s who make copies of televised sports events, religious broadcasts, and educational programs such as Mister Rogers’ Neighborhood, and 2/the proprietors of those programs welcome the practice,” the sale of VTR’s “should not be stifled” in order to protect respondents’ copyrights. Ante, at 446 (emphasis supplied). Given that the Court seems to recognize that its argument depends on findings that have not been made, it seems that a remand is inescapable.

46

As has been explained, some uses of time-shifting, such as copying an old newspaper clipping for a friend, are fair use because of their de minimis effect on the copyright holder. The scale of copying involved in this case, of course, is of an entirely different magnitude, precluding appli­cation of such an exception.

47

Home Recording of Copyrighted Works: Hearing before the Sub­committee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 97th Cong., 2d Sess., pt. 2, p. 1260 (1982) (memorandum of Prof. Laurence H. Tribe).

48

See A Survey of Betamax Owners, Tr. 2353, Defendants’ Exh. OT, Table 20, cited in Brief for Respondents 52.

49

The Court’s one oblique acknowledgment of this third factor, ante, at 447, and n. 30, seems to suggest that the fact that time-shifting involves copying complete works is not very significant because the viewers already have been asked to watch the initial broadcast free. This suggestion misses the point. As has been noted, a book borrowed from a public li­brary may not be copied any more freely than one that has been purchased. An invitation to view a showing is completely different from an invitation to copy a copyrighted work.

50

The Court implicitly has recognized that this market is very significant. The central concern underlying the Court's entire opinion is that there is a large audience who would like very much to be able to view programs at times other than when they are broadcast. Ante, at 446. The Court sim­ply misses the implication of its own concerns.

51

Other nations have imposed royalties on the manufacturers of products used to infringe copyright. See, e. g., Copyright Laws and Treaties of the World (UNESCO/BNA 1982) (English translation), reprinting Federal Act on Copyright in Works of Literature and Art and on Related Rights (Aus­tria), §§ 42(5)-(7), and An Act dealing with Copyright and Related Rights (Federal Republic of Germany), Art. 53(5). A study produced for the Commission of European Communities has recommended that these re­quirements “serve as a pattern” for the European community. A. Dietz, Copyright Law in the European Community 135 (1978). While these roy­alty systems ordinarily depend on the existence of authors’ collecting soci­eties, see id., at 119, 136, such collecting societies are a familiar part of our copyright law. See generally Broadcast Music, Inc. v. Columbia Broad­casting System, Inc., 441 U. S. 1, 4-5 (1979). Fashioning relief of this sort, of course, might require bringing other copyright owners into court through certification of a class or otherwise.

[697] Joshua I. Schiller (Jonathan D. Schiller, George F. Carpinello, on the brief), Boies, Schiller & Flexner LLP, New York, NY, for Defendant-Appellant Richard Prince.

Hollis Anne Gonerka Bart, Chaya Weinberg-Brodt, Dara G. Hammerman, Azmina N. Jasani, Withers Bergman LLP, New York, NY, for Defendants-Appellants Gagosian Gallery, Inc. and Lawrence Gagosian.

Daniel J. Brooks (Seth E. Spitzer, Eric A. Boden, on the brief), Schnader Harrison Segal & Lewis LLP, New York, NY, for Plaintiff-Appellee Patrick Cariou.

Anthony T. Falzone, Julie A. Ahrens, Daniel K. Nazer, Stanford Law School Center for Internet and Society, Stanford, CA; Virginia Rutledge, New York, NY; Zachary J. Alinder, John A. Polito, Bingham McCutchen LLP, San Francisco, CA, [698] for Amicus The Andy Warhol Foundation for the Visual Arts.

Joseph C. Gratz, Durie Tangri, LLP, San Francisco, CA; Oliver Metzger, Google Inc., Mountain View, CA, for Amicus Google Inc.

Clifford M. Sloan, Bradley A. Klein, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC, for Amici The Association of Art Museum Directors, The Art Institute of Chicago, The Indianapolis Museum of Art, The Metropolitan Museum of Art, The Museum of Modern Art, Museum Associates d.b.a. Los Angeles County Museum of Art, The New Museum, The Solomon R. Guggenheim Foundation, The Walker Art Center, and The Whitney Museum of American Art.

Michael Williams, Dale M. Cendali, Claudia Ray, Kirkland & Ellis LLP, Washington, DC, for Amici American Society of Media Photographers, Inc., and Picture Archive Council of America.

Before: B.D. PARKER, HALL, and WALLACE,^[1] Circuit Judges.

B.D. PARKER, J., delivered the opinion of the Court, in which HALL, J., joined. WALLACE, J., filed an opinion concurring in part and dissenting in part.

BARRINGTON D. PARKER, Circuit Judge:

In 2000, Patrick Cariou published Yes Rasta, a book of classical portraits and landscape photographs that he took over the course of six years spent living among Rastafarians in Jamaica. Richard Prince altered and incorporated several of Cariou's Yes Rasta photographs into a series of paintings and collages, called Canal Zone, that he exhibited in 2007 and 2008, first at the Eden Rock hotel in Saint Barthélemy ("St. Barth's") and later at New York's Gagosian Gallery.^[2] In addition, Gagosian published and sold an exhibition catalog that contained reproductions of Prince's paintings and images from Prince's workshop.

Cariou sued Prince and Gagosian, alleging that Prince's Canal Zone works and exhibition catalog infringed on Cariou's copyrights in the incorporated Yes Rasta photographs. The defendants raised a fair use defense. After the parties cross-moved for summary judgment, the United States District Court for the Southern District of New York (Batts, J.) granted Cariou's motion, denied the defendants', and entered a permanent injunction. It compelled the defendants to deliver to Cariou all infringing works that had not yet been sold, for him to destroy, sell, or otherwise dispose of.

Prince and Gagosian principally contend on appeal that Prince's work is transformative and constitutes fair use of Cariou's copyrighted photographs, and that the district court imposed an incorrect legal standard when it concluded that, in order to qualify for a fair use defense, Prince's work must "comment on Cariou, on Cariou's Photos, or on aspects of popular culture closely associated with Cariou or the Photos." Cariou v. Prince, 784 F.Supp.2d 337, 349 (S.D.N.Y.2011). We agree with Appellants that the law does not require that a secondary use comment on the original artist or work, or popular culture, and we conclude that twenty-five of Prince's artworks do make fair use Cariou's copyrighted [699] photographs. With regard to the remaining five artworks, we remand to the district court, applying the proper standard, to consider in the first instance whether Prince is entitled to a fair use defense.^[3]

BACKGROUND

The relevant facts, drawn primarily from the parties' submissions in connection with their cross-motions for summary judgment, are undisputed. Cariou is a professional photographer who, over the course of six years in the mid-1990s, lived and worked among Rastafarians in Jamaica. The relationships that Cariou developed with them allowed him to take a series of portraits and landscape photographs that Cariou published in 2000 in a book titled Yes Rasta. As Cariou testified, Yes Rasta is "extreme classical photography [and] portraiture," and he did not "want that book to look pop culture at all." Cariou Dep. 187:8-15, Jan. 12, 2010.

Cariou's publisher, PowerHouse Books, Inc., printed 7,000 copies of Yes Rasta, in a single printing. Like many, if not most, such works, the book enjoyed limited commercial success. The book is currently out of print. As of January 2010, PowerHouse had sold 5,791 copies, over sixty percent of which sold below the suggested retail price of sixty dollars. PowerHouse has paid Cariou, who holds the copyrights to the Yes Rasta photographs, just over $8,000 from sales of the book. Except for a handful of private sales to personal acquaintances, he has never sold or licensed the individual photographs.

Prince is a well-known appropriation artist. The Tate Gallery has defined appropriation art as "the more or less direct taking over into a work of art a real object or even an existing work of art." J.A. 446. Prince's work, going back to the mid-1970s, has involved taking photographs and other images that others have produced and incorporating them into paintings and collages that he then presents, in a different context, as his own. He is a leading exponent of this genre and his work has been displayed in museums around the world, including New York's Solomon R. Guggenheim Museum and Whitney Museum, San Francisco's Museum of Modern Art, Rotterdam's Museum Boijmans van Beuningen, and Basel's Museum fur Gegenwartskunst. As Prince has described his work, he "completely tr[ies] to change [another artist's work] into something that's completely different." Prince Dep. 338:4-8, Oct. 6, 2009.

Prince first came across a copy of Yes Rasta in a bookstore in St. Barth's in 2005. Between December 2007 and February 2008, Prince had a show at the Eden Rock hotel in St. Barth's that included a collage, titled Canal Zone (2007), comprising 35 photographs torn out of Yes Rasta and pinned to a piece of plywood. Prince altered those photographs significantly, by among other things painting "lozenges" over their subjects' facial features and using only portions of some of the images. In June 2008, Prince purchased three additional copies of Yes Rasta. He went on to create thirty additional artworks in the Canal Zone series, twenty-nine of which incorporated partial or whole images from Yes Rasta.^[4] The portions of Yes Rasta [700] photographs used, and the amount of each artwork that they constitute, vary significantly from piece to piece. In certain works, such as James Brown Disco Ball, Prince affixed headshots from Yes Rasta onto other appropriated images, all of which Prince placed on a canvas that he had painted. In these, Cariou's work is almost entirely obscured. The Prince artworks also incorporate photographs that have been enlarged or tinted, and incorporate photographs appropriated from artists other than Cariou as well. Yes Rasta is a book of photographs measuring approximately 9.5″ × 12″. Prince's artworks, in contrast, comprise inkjet printing and acrylic paint, as well as pasted-on elements, and are several times that size. For instance, Graduation measures 72 3/4″ × 52 1/2″ and James Brown Disco Ball 100 1/2″ × 104 1/2″. The smallest of the Prince artworks measures 40″ × 30″, or approximately ten times as large as each page of Yes Rasta.

Patrick Cariou, Photographs from Yes Rasta, pp. 11, 59

[701]

Richard Prince, James Brown Disco Ball

In other works, such as Graduation, Cariou's original work is readily apparent: Prince did little more than paint blue lozenges over the subject's eyes and mouth, and paste a picture of a guitar over the subject's body.

[702]

Patrick Carious, Photograph from Yes Rasta, p. 118

[703]

Richard Prince, Graduation

Between November 8 and December 20, 2008, the Gallery put on a show featuring twenty-two of Prince's Canal Zone artworks, and also published and sold an exhibition catalog from the show. The catalog included all of the Canal Zone artworks (including those not in the Gagosian show) except for one, as well as, among other things, photographs showing Yes Rasta photographs in Prince's studio. Prince never sought or received permission from Cariou to use his photographs.

Prior to the Gagosian show, in late August, 2008, a gallery owner named Cristiane Celle contacted Cariou and asked if he would be interested in discussing the possibility of an exhibit in New York City. Celle did not mention Yes Rasta, but did express interest in photographs Cariou took of surfers, which he published in 1998 in the aptly titled Surfers. Cariou responded that Surfers would be republished in 2008, and inquired whether Celle might also be interested in a book Cariou had recently completed on gypsies. The two subsequently met and discussed Cariou's exhibiting work in Celle's gallery, including prints from Yes Rasta. They did not select a date or photographs to exhibit, nor [704] did they finalize any other details about the possible future show.

At some point during the Canal Zone show at Gagosian, Celle learned that Cariou's photographs were "in the show with Richard Prince." Celle then phoned Cariou and, when he did not respond, Celle mistakenly concluded that he was "doing something with Richard Prince.... [Maybe] he's not pursuing me because he's doing something better, bigger with this person.... [H]e didn't want to tell the French girl I'm not doing it with you, you know, because we had started a relation and that would have been bad." Celle Dep. 88:15-89:7, Jan. 26, 2010. At that point, Celle decided that she would not put on a "Rasta show" because it had been "done already," and that any future Cariou exhibition she put on would be of photographs from Surfers. Celle remained interested in exhibiting prints from Surfers, but Cariou never followed through.

According to Cariou, he learned about the Gagosian Canal Zone show from Celle in December 2008. On December 30, 2008, he sued Prince, the Gagosian Gallery, and Lawrence Gagosian, raising claims of copyright infringement. See 17 U.S.C. §§ 106, 501. The defendants asserted a fair use defense, arguing that Prince's artworks are transformative of Cariou's photographs and, accordingly, do not violate Cariou's copyrights. See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578-79, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994). Ruling on the parties' subsequently-filed cross-motions for summary judgment, the district court (Batts, J.) "impose[d] a requirement that the new work in some way comment on, relate to the historical context of, or critically refer back to the original works" in order to be qualify as fair use, and stated that "Prince's Paintings are transformative only to the extent that they comment on the Photos." Cariou v. Prince, 784 F.Supp.2d 337, 348-49 (S.D.N.Y.2011). The court concluded that "Prince did not intend to comment on Cariou, on Cariou's Photos, or on aspects of popular culture closely associated with Cariou or the Photos when he appropriated the Photos," id. at 349, and for that reason rejected the defendants' fair use defense and granted summary judgment to Cariou. The district court also granted sweeping injunctive relief, ordering the defendants to "deliver up for impounding, destruction, or other disposition, as [Cariou] determines, all infringing copies of the Photographs, including the Paintings and unsold copies of the Canal Zone exhibition book, in their possession." Id. at 355.^[5] This appeal followed.

DISCUSSION

I.

We review a grant of summary judgment de novo. See Blanch v. Koons, 467 F.3d 244, 249-50 (2d Cir.2006). The well known standards for summary judgment set forth in Rule 56(c) apply. See Fed.R.Civ.P. 56. "Although fair use is a mixed question of law and fact, this court has on numerous occasions resolved fair use determinations at the summary judgment stage where ... there are no genuine issues of material fact." Blanch, 467 F.3d at 250 (quotation marks and brackets omitted); see also Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985); Castle Rock Entm't, Inc. v. Carol Publ'g Grp., Inc., 150 F.3d 132, 137 (2d Cir.1998). This case lends itself to that approach.

[705] II.

The purpose of the copyright law is "[t]o promote the Progress of Science and useful Arts...." U.S. Const., Art. I, § 8, cl. 8. As Judge Pierre Leval of this court has explained, "[t]he 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) (hereinafter "Leval"). Fair use is "necessary to fulfill [that] very purpose." Campbell, 510 U.S. at 575, 114 S.Ct. 1164. Because "`excessively broad protection would stifle, rather than advance, the law's objective,'" fair use doctrine "mediates between" "the property rights [copyright law] establishes in creative works, which must be protected up to a point, and the ability of authors, artists, and the rest of us to express them — or ourselves by reference to the works of others, which must be protected up to a point." Blanch, 467 F.3d at 250 (brackets omitted) (quoting Leval at 1109).

The doctrine was codified in the Copyright Act of 1976, which lists four non-exclusive factors that must be considered in determining fair use. Under the statute,

[T]he fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of 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.

17 U.S.C. § 107. As the statute indicates, and as the Supreme Court and our court have recognized, the fair use determination is an open-ended and context-sensitive inquiry. Campbell, 510 U.S. at 577-78, 114 S.Ct. 1164; Blanch, 467 F.3d at 251. The statute "employs the terms `including' and `such as' in the preamble paragraph to indicate the illustrative and not limitative function of the examples given, which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses." Campbell, 510 U.S. at 577-78, 114 S.Ct. 1164 (quotation marks and citation omitted). 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, 150 F.3d at 141 (brackets and citation omitted).

The first statutory factor to consider, which addresses the manner in which the copied work is used, is "[t]he heart of the fair use inquiry." Blanch, 467 F.3d at 251. We ask

whether the new work merely `supersedes 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[,] ... in other words, whether and to what extent the new work is transformative.... [T]ransformative works ... lie at the heart of [706] the fair use doctrine's guarantee of breathing space....

Campbell, 510 U.S. at 579, 114 S.Ct. 1164 (citations and some quotation marks omitted) (quoting Folsom v. Marsh, 9 F.Cas. 342, 348 *No. 4,901) (C.C.D.Mass.1841) (Story, J.). "If `the secondary use adds value to the original — if [the original work] 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.'" Castle Rock, 150 F.3d at 142 (quoting Leval 1111). For a use to be fair, it "must be productive and must employ the quoted matter in a different manner or for a different purpose from the original." Leval at 1111.

The district court imposed a requirement that, to qualify for a fair use defense, a secondary use must "comment on, relate to the historical context of, or critically refer back to the original works." Cariou, 784 F.Supp.2d at 348. Certainly, many types of fair use, such as satire and parody, invariably comment on an original work and/or on popular culture. For example, the rap group 2 Live Crew's parody of Roy Orbison's "Oh, Pretty Woman" "was clearly intended to ridicule the white-bread original." Campbell, 510 U.S. at 582, 114 S.Ct. 1164 (quotation marks omitted). Much of Andy Warhol's work, including work incorporating appropriated images of Campbell's soup cans or of Marilyn Monroe, comments on consumer culture and explores the relationship between celebrity culture and advertising. As even Cariou concedes, however, the district court's legal premise was not correct. The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute. Id. at 577, 114 S.Ct. 1164; Harper & Row, 471 U.S. at 561, 105 S.Ct. 2218. Instead, as the Supreme Court as well as decisions from our court have emphasized, to qualify as a fair use, a new work generally must alter the original with "new expression, meaning, or message." Campbell, 510 U.S. at 579, 114 S.Ct. 1164; see also Blanch, 467 F.3d at 253 (original must be employed "in the creation of new information, new aesthetics, new insights and understandings" (quotation marks omitted)); Castle Rock, 150 F.3d at 142.

Here, our observation of Prince's artworks themselves convinces us of the transformative nature of all but five, which we discuss separately below. These twenty-five of Prince's artworks manifest an entirely different aesthetic from Cariou's photographs. Where Cariou's serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince's crude and jarring works, on the other hand, are hectic and provocative. Cariou's black-and-white photographs were printed in a 9 1/2″ × 12″ book. Prince has created collages on canvas that incorporate color, feature distorted human and other forms and settings, and measure between ten and nearly a hundred times the size of the photographs. Prince's composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs, as is the expressive nature of Prince's work. See Campbell, 510 U.S. at 579, 114 S.Ct. 1164.

Prince's deposition testimony further demonstrates his drastically different approach and aesthetic from Cariou's. Prince testified that he "[doesn't] have any really interest in what [another artist's] [707] original intent is because ... what I do is I completely try to change it into something that's completely different.... I'm trying to make a kind of fantastic, absolutely hip, up to date, contemporary take on the music scene." Prince Dep. 338:4-339:3, Oct. 6, 2009. As the district court determined, Prince's Canal Zone artworks relate to a "post-apocalyptic screenplay" Prince had planned, and "emphasize themes [of Prince's planned screenplay] of equality of the sexes; highlight `the three relationships in the world, which are men and women, men and men, and women and women'; and portray a contemporary take on the music scene." Cariou, 784 F.Supp.2d at 349; see Prince Dep. 339:3-7, Oct. 6, 2009.

The district court based its conclusion that Prince's work is not transformative in large part on Prince's deposition testimony that he "do[es]n't really have a message," that he was not "trying to create anything with a new meaning or a new message," and that he "do[es]n't have any ... interest in [Cariou's] original intent." Cariou, 784 F.Supp.2d at 349; see Prince Dep. 45:25-46:2, 338:5-6, 360:18-20, Oct. 6, 2009. On appeal, Cariou argues that we must hold Prince to his testimony and that we are not to consider how Prince's works may reasonably be perceived unless Prince claims that they were satire or parody. No such rule exists, and we do not analyze satire or parody differently from any other transformative use.

It is not surprising that, when transformative use is at issue, the alleged infringer would go to great lengths to explain and defend his use as transformative. Prince did not do so here. However, the fact that Prince did not provide those sorts of explanations in his deposition — which might have lent strong support to his defense — is not dispositive. What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince's work could be transformative even without commenting on Cariou's work or on culture, and even without Prince's stated intention to do so. Rather than confining our inquiry to Prince's explanations of his artworks, we instead examine how the artworks may "reasonably be perceived" in order to assess their transformative nature. Campbell, 510 U.S. at 582, 114 S.Ct. 1164; Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113-14 (2d Cir.1998) (evaluating parodic nature of advertisement in light of how it "may reasonably be perceived"). The focus of our infringement analysis is primarily on the Prince artworks themselves, and we see twenty-five of them as transformative as a matter of law.

In this respect, the Seventh Circuit's recent decision in Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687 (7th Cir.2012), is instructive. There, the court rejected the appellant's argument that copyright infringement claims cannot be disposed of at the motion-to-dismiss stage, and affirmed the district court's dismissal of such a claim under Fed.R.Civ.P. 12(b)(6). Brownmark Films, 682 F.3d at 690. Considering whether an episode of the animated television show South Park presented a parody (and therefore a protected fair use) of a viral internet video titled "What What (In The Butt)," the court concluded that "[w]hen the two works ... are viewed side-by-side, the South Park episode is clearly a parody of the original ... video." Id. at 692. For that reason, "the only two pieces of evidence needed to decide the question of fair use in [Brownmark were] the original version of [the video] and the episode at issue." Id. at 690.

Here, looking at the artworks and the photographs side-by-side, we conclude [708] that Prince's images, except for those we discuss separately below, have a different character, give Cariou's photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou's. Our conclusion should not be taken to suggest, however, that any cosmetic changes to the photographs would necessarily constitute fair use. A secondary work may modify the original without being transformative. For instance, a derivative work that merely presents the same material but in a new form, such as a book of synopses of televisions shows, is not transformative. See Castle Rock, 150 F.3d at 143; Twin Peaks Prods., Inc. v. Publ'ns Int'l, Ltd., 996 F.2d 1366, 1378 (2d Cir.1993). In twenty-five of his artworks, Prince has not presented the same material as Cariou in a different manner, but instead has "add[ed] something new" and presented images with a fundamentally different aesthetic. Leibovitz, 137 F.3d at 114.

The first fair use factor — the purpose and character of the use — also requires that we consider whether the allegedly infringing work has a commercial or nonprofit educational purpose. See, e.g., Blanch, 467 F.3d at 253. That being said, "nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research... are generally conducted for profit." Campbell, 510 U.S. at 584, 114 S.Ct. 1164 (quotation marks omitted). "The commercial/nonprofit dichotomy concerns the unfairness that arises when a secondary user makes unauthorized use of copyrighted material to capture significant revenues as a direct consequence of copying the original work." Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 922 (2d Cir.1994). This factor must be applied with caution because, as the Supreme Court has recognized, Congress "could not have intended" a rule that commercial uses are presumptively unfair. Campbell, 510 U.S. at 584, 114 S.Ct. 1164 Instead, "[t]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." Id. at 579, 114 S.Ct. 1164. Although there is no question that Prince's artworks are commercial, we do not place much significance on that fact due to the transformative nature of the work.

We turn next to the fourth statutory factor, the effect of the secondary use upon the potential market for the value of the copyrighted work, because such discussion further demonstrates the significant differences between Prince's work, generally, and Cariou's. Much of the district court's conclusion that Prince and Gagosian infringed on Cariou's copyrights was apparently driven by the fact that Celle decided not to host a Yes Rasta show at her gallery once she learned of the Gagosian Canal Zone show. The district court determined that this factor weighs against Prince because he "has unfairly damaged both the actual and potential markets for Cariou's original work and the potential market for derivative use licenses for Cariou's original work." Cariou, 784 F.Supp.2d at 353.

Contrary to the district court's conclusion, the application of this factor does not focus principally on the question of damage to Cariou's derivative market. We have made clear that "our concern is not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps the market of the original work." Blanch, 467 F.3d at 258 (quotation marks omitted) (emphasis added); NXIVM Corp. v. Ross Inst., 364 F.3d 471, 481-82 (2d Cir.2004). "The market for potential derivative uses [709] includes only those that creators of original works would in general develop or license others to develop." Campbell, 510 U.S. at 592, 114 S.Ct. 1164. Our court has concluded that an accused infringer has usurped the market for copyrighted works, including the derivative market, where the infringer's target audience and the nature of the infringing content is the same as the original. For instance, a book of trivia about the television show Seinfeld usurped the show's market because the trivia book "substitute[d] for a derivative market that a television program copyright owner ... would in general develop or license others to develop." Castle Rock, 150 F.3d at 145 (quotation marks omitted). Conducting this analysis, we are mindful that "[t]he more transformative the secondary use, the less likelihood that the secondary use substitutes for the original," even though "the fair use, being transformative, might well harm, or even destroy, the market for the original." Id.

As discussed above, Celle did not decide against putting on a Yes Rasta show because it had already been done at Gagosian, but rather because she mistakenly believed that Cariou had collaborated with Prince on the Gagosian show. Although certain of Prince's artworks contain significant portions of certain of Cariou's photographs, neither Prince nor the Canal Zone show usurped the market for those photographs. Prince's audience is very different from Cariou's, and there is no evidence that Prince's work ever touched — much less usurped — either the primary or derivative market for Cariou's work. There is nothing in the record to suggest that Cariou would ever develop or license secondary uses of his work in the vein of Prince's artworks. Nor does anything in the record suggest that Prince's artworks had any impact on the marketing of the photographs. Indeed, Cariou has not aggressively marketed his work, and has earned just over $8,000 in royalties from Yes Rasta since its publication. He has sold four prints from the book, and only to personal acquaintances.

Prince's work appeals to an entirely different sort of collector than Cariou's. Certain of the Canal Zone artworks have sold for two million or more dollars. The invitation list for a dinner that Gagosian hosted in conjunction with the opening of the Canal Zone show included a number of the wealthy and famous such as the musicians Jay-Z and Beyonce Knowles, artists Damien Hirst and Jeff Koons, professional football player Tom Brady, model Gisele Bundchen, Vanity Fair editor Graydon Carter, Vogue editor Anna Wintour, authors Jonathan Franzen and Candace Bushnell, and actors Robert DeNiro, Angelina Jolie, and Brad Pitt. Prince sold eight artworks for a total of $10,480,000, and exchanged seven others for works by painter Larry Rivers and by sculptor Richard Serra. Cariou on the other hand has not actively marketed his work or sold work for significant sums, and nothing in the record suggests that anyone will not now purchase Cariou's work, or derivative non-transformative works (whether Cariou's own or licensed by him) as a result of the market space that Prince's work has taken up. This fair use factor therefore weighs in Prince's favor.

The next statutory factor that we consider, the nature of the copyrighted work, "calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied." Campbell, 510 U.S. at 586, 114 S.Ct. 1164. We consider "`(1) whether the work is expressive or creative, ... with a greater leeway being allowed to a claim of fair use where the work is factual or informational, [710] and (2) whether the work is published or unpublished, with the scope for fair use involving unpublished works being considerably narrower.'" Blanch, 467 F.3d at 256 (quoting 2 Howard B. Abrams, The Law of Copyright, § 15:52 (2006)).

Here, there is no dispute that Cariou's work is creative and published. Accordingly, this factor weighs against a fair use determination. However, just as with the commercial character of Prince's work, this factor "may be of limited usefulness where," as here, "the creative work of art is being used for a transformative purpose." Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 612 (2d Cir.2006).

The final factor that we consider in our fair use inquiry is "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." 17 U.S.C. § 107(3). We ask "whether the quantity and value of the materials used[] are reasonable in relation to the purpose of the copying." Blanch, 467 F.3d at 257 (quotation marks omitted). In other words, we consider the proportion of the original work used, and not how much of the secondary work comprises the original.

Many of Prince's works use Cariou's photographs, in particular the portrait of the dreadlocked Rastafarian at page 118 of Yes Rasta, the Rastafarian on a burro at pages 83 to 84, and the dreadlocked and bearded Rastafarian at page 108, in whole or substantial part. In some works, such as Charlie Company, Prince did not alter the source photograph very much at all. In others, such as Djuana Barnes, Natalie Barney, Renee Vivien and Romaine Brooks take over the Guanahani, the entire source photograph is used but is also heavily obscured and altered to the point that Cariou's original is barely recognizable. Although "[n]either our court nor any of our sister circuits has ever ruled that the copying of an entire work favors fair use[,].... 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." Bill Graham, 448 F.3d at 613. "[T]he third-factor inquiry must take into account that the extent of permissible copying varies with the purpose and character of the use." Id. (internal quotation marks omitted).

The district court determined that Prince's "taking was substantially greater than necessary." Cariou, 784 F.Supp.2d at 352. We are not clear as to how the district court could arrive at such a conclusion. In any event, the law does not require that the secondary artist may take no more than is necessary. See Campbell, 510 U.S. at 588, 114 S.Ct. 1164; Leibovitz, 137 F.3d at 114. We consider not only the quantity of the materials taken but also "their quality and importance" to the original work. Campbell, 510 U.S. at 587, 114 S.Ct. 1164. The secondary use "must be [permitted] to `conjure up' at least enough of the original" to fulfill its transformative purpose. Id. at 588, 114 S.Ct. 1164 (emphasis added); Leibovitz, 137 F.3d at 114. Prince used key portions of certain of Cariou's photographs. In doing that, however, we determine that in twenty-five of his artworks, Prince transformed those photographs into something new and different and, as a result, this factor weighs heavily in Prince's favor.

As indicated above, there are five artworks that, upon our review, present closer questions. Specifically, Graduation, Meditation, Canal Zone (2008), Canal Zone (2007), and Charlie Company do not sufficiently differ from the photographs of Cariou's that they incorporate for us confidently to make a determination about their [711] transformative nature as a matter of law. Although the minimal alterations that Prince made in those instances moved the work in a different direction from Cariou's classical portraiture and landscape photos, we can not say with certainty at this point whether those artworks present a "new expression, meaning, or message." Campbell, 510 U.S. at 579, 114 S.Ct. 1164.

Certainly, there are key differences in those artworks compared to the photographs they incorporate. Graduation, for instance, is tinted blue, and the jungle background is in softer focus than in Cariou's original. Lozenges painted over the subject's eyes and mouth — an alteration that appears frequently throughout the Canal Zone artworks — make the subject appear anonymous, rather than as the strong individual who appears in the original. Along with the enlarged hands and electric guitar that Prince pasted onto his canvas, those alterations create the impression that the subject is not quite human. Cariou's photograph, on the other hand, presents a human being in his natural habitat, looking intently ahead. Where the photograph presents someone comfortably at home in nature, Graduation combines divergent elements to create a sense of discomfort. However, we cannot say for sure whether Graduation constitutes fair use or whether Prince has transformed Cariou's work enough to render it transformative.

We have the same concerns with Meditation, Canal Zone (2007), Canal Zone (2008), and Charlie Company. Each of those artworks differs from, but is still similar in key aesthetic ways, to Cariou's photographs. In Meditation, Prince again added lozenges and a guitar to the same photograph that he incorporated into Graduation, this time cutting the subject out of his background, switching the direction he is facing, and taping that image onto a blank canvas. In Canal Zone (2007), Prince created a gridded collage using 31 different photographs of Cariou's, many of them in whole or significant part, with alterations of some of those photographs limited to lozenges or cartoonish appendages painted or drawn on. Canal Zone (2008) incorporates six photographs of Cariou's in whole or in part, including the same subject as Meditation and Graduation. Prince placed the subject, with lozenges and guitar, on a background comprising components of various landscape photographs, taped together. The cumulative effect is of the subject in a habitat replete with lush greenery, not dissimilar from many of Cariou's Yes Rasta photographs. And Charlie Company prominently displays four copies of Cariou's photograph of a Rastafarian riding a donkey, substantially unaltered, as well as two copies of a seated nude woman with lozenges covering all six faces. Like the other works just discussed, Charlie Company is aesthetically similar to Cariou's original work because it maintains the pastoral background and individual focal point of the original photograph — in this case, the man on the burro. While the lozenges, repetition of the images, and addition of the nude female unarguably change the tenor of the piece, it is unclear whether these alterations amount to a sufficient transformation of the original work of art such that the new work is transformative.

We believe the district court is best situated to determine, in the first instance, whether such relatively minimal alterations render Graduation, Meditation, Canal Zone (2007), Canal Zone (2008), and Charlie Company fair uses (including whether the artworks are transformative) or whether any impermissibly infringes on Cariou's copyrights in his original photographs. We remand for that determination.

[712] III.

In addition to its conclusion that Prince is liable for infringing on Cariou's copyrights, the district court determined that the Gagosian defendants are liable as vicarious and contributory infringers. Cariou, 784 F.Supp.2d at 354. With regard to the twenty-five of Prince's artworks, which, as we have held, do not infringe on Cariou's copyrights, neither Lawrence Gagosian nor the Gallery may be liable as a vicarious or contributory infringer. See Faulkner v. Nat'l Geographic Enters., Inc., 409 F.3d 26, 40 (2d Cir.2005). If the district court concludes on remand that Prince is liable as a direct infringer with regard to any of the remaining five works, the district court should determine whether the Gagosian defendants should be held liable, directly or secondarily, as a consequence of their actions with regard to those works. See Copyright Act, 17 U.S.C. § 106(1), (2), (3), (5).

CONCLUSION

For the reasons discussed, we hold that all except five (Graduation, Meditation, Canal Zone (2007), Canal Zone (2008), and Charlie Company) of Prince's artworks make fair use of Cariou's photographs. We express no view as to whether the five are also entitled to a fair use defense. We REMAND with respect to those five so that the district court, applying the proper standard, can determine in the first instance whether any of them infringes on Cariou's copyrights or whether Prince is entitled to a fair use defense with regard to those artworks as well. The judgment of the district court is REVERSED in part and VACATED in part.^[6] The case is REMANDED for further proceedings consistent with this opinion.

WALLACE, J., Senior Circuit Judge, concurring in part and dissenting in part:

I agree with the bulk of the majority decision as to the law, including the majority's determination that the district court incorrectly imposed a requirement that the allegedly infringing works comment on the original works to be entitled to a fair use defense. See Cariou v. Prince, 784 F.Supp.2d 337, 348-49 (S.D.N.Y.2011). I nevertheless part company with the majority.

While we may, as an appellate court, determine that secondary works are fair use in certain instances, see Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985), in the usual case, after correcting an erroneous legal standard employed by the district court, we would remand for reconsideration. This standard, I suggest, should apply here where factual determinations must be reevaluated — and perhaps new evidence or expert opinions will be deemed necessary by the fact finder — after which a new decision can be made under the corrected legal analysis. But the majority short-circuits this time-tested search for a just result under the law. I would not apply the shortcut but would set aside the summary judgment, remand the entire case to the district court, and allow the district court to analyze [713] material evidence under the proper standard.

Unlike the majority, I would allow the district court to consider Prince's statements in reviewing fair use. While not the sine qua non of fair use, see Blanch v. Koons, 467 F.3d 244, 255 n. 5 (2d Cir. 2006), I see no reason to discount Prince's statements as the majority does. While it may seem intuitive to assume that a defendant claiming fair use would typically give self-serving ex post facto testimony to support a defense, this Court has nevertheless relied on such statements when making this inquiry — even if just to confirm its own analysis. See id. at 252-53, 255; see also Castle Rock Entm't, Inc. v. Carol Publ'g Grp., Inc., 150 F.3d 132, 142 (2d Cir.1998) (looking to statements of the allegedly infringing work's creators when analyzing the purpose and character of the secondary work). Thus, I view Prince's statements — which, as Prince acknowledges, consist of "his view of the purpose and effect of each of the individual [p]aintings" — as relevant to the transformativeness analysis.

The majority relies on the Seventh Circuit's decision in Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687 (7th Cir.2012), for the proposition that all the Court needs to do here to determine transformativeness is view the original work and the secondary work and, apparently, employ its own artistic judgment. In my view, Brownmark cannot be extended so far. Brownmark arose under an unusual procedural posture: a motion to dismiss based on a non-pleaded fair use affirmative defense converted into a motion for summary judgment on appeal. See id. The court in Brownmark determined that it needed only to review the allegedly infringing video against the original to determine that the secondary work was permissible parody. Id. at 692-93. It appears to me, however, that Brownmark left open the possibility that additional evidence could be relevant to the fair use inquiry in a different procedural context. See id. at 692 n. 2 (identifying that the defendant could have put forth additional evidence to bolster its fair use defense if the case arose from a typical summary judgment motion); id. at 692 (stating that the district court was only required to consider the original and secondary videos, "especially in light of [the plaintiff's] failure to make any concrete contention" as to the secondary video's potential market impact).

Further, Brownmark apparently arose in the context of a clear case of parody — so obvious that the appeals court affirmed the district court's conclusion that fair use was evident from even a "fleeting glance" at the original and secondary works. Id. at 689-90. I do not believe that the transformativeness of Prince's works — which have not been presented as parody or satire — can be so readily determined. Because this case arises after extensive discovery and argument by the parties, I disagree that we must limit our inquiry to our own artistic perceptions of the original and secondary works.

Indeed, while I admit freely that I am not an art critic or expert, I fail to see how the majority in its appellate role can "confidently" draw a distinction between the twenty-five works that it has identified as constituting fair use and the five works that do not readily lend themselves to a fair use determination. This, mind you, is done on a summary judgment review with no understanding of what additional evidence may be presented on remand. I also fail to see a principled reason for remanding to the district court only the five works the majority identifies as close calls, although I agree that they must be sent back to the trial court. If the district [714] court is in the best position to determine fair use as to some paintings, why is the same not true as to all paintings? Certainly we are not merely to use our personal art views to make the new legal application to the facts of this case. Cf. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 582, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) ("`[I]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits'"), quoting Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251, 23 S.Ct. 298, 47 L.Ed. 460 (1903). It would be extremely uncomfortable for me to do so in my appellate capacity, let alone my limited art experience.

In my view, because the district court takes the primary role in determining the facts and applying the law to the facts in fair use cases, after which we exercise our appellate review if called upon to do so, I conclude that as to each painting, "the district court is best situated to determine, in the first instance," whether Prince is entitled to a fair use defense in light of the correct legal standard. See majority opinion at 711-12. I mean no disrespect to the majority, but I, for one, do not believe that I am in a position to make these fact- and opinion-intensive decisions on the twenty-five works that passed the majority's judicial observation. I do not know what additional facts will become relevant under the corrected rule of law, nor am I trained to make art opinions ab initio.

I would thus remand the entire case — all thirty of Prince's paintings — for further proceedings in the district court on an open record to take such additional testimony as needed and apply the correct legal standard. On this basis, therefore, I respectfully dissent.

[1] The Honorable J. Clifford Wallace, United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

[2] We refer to Gagosian Gallery and its owner Lawrence Gagosian collectively as "Gagosian" or the "Gallery."

[3] The district court's opinion indicated that there are twenty-nine artworks at issue in this case. See Cariou, 784 F.Supp.2d at 344 nn. 5, 6. There are actually thirty.

[4] Images of the Prince artworks, along with the Yes Rasta photographs incorporated therein, appear in the Appendix to this opinion. The Appendix is available at http://www.ca2.uscourts.gov/11-1197apx.htm.

[5] At oral argument, counsel for Cariou indicated that he opposes the destruction of any of the works of art that are the subject of this litigation.

[6] Because we reverse the district court with regard to the twenty-five of the artworks, and leave open the question of fair use with regard to the remaining five, we vacate the district court's injunction. In the event that Prince and Gagosian are ultimately held liable for copyright infringement, and in light of all parties' agreement at oral argument that the destruction of Prince's artwork would be improper and against the public interest, a position with which we agree, the district court should revisit what injunctive relief, if any, is appropriate. See eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006); Salinger v. Colting, 607 F.3d 68, 77 (2d Cir.2010).