Cite as 214 F.3d 1022 (9th Cir. 2000)
screen shot would be a depiction of one single frame from a movie.
Screen shots are ubiquitous in the packaging of video games because they convey to the purchaser exactly what the game will look like on a screen when it is played. This slice of verisimilitude is important because the majority of the packaging of most typical video games is ornate artwork that evokes the spirit of the game, if not necessarily the visual truth of it. For instance, a video game such Gran Turismo—Sony’s best-selling, racing car game—might come packaged in a box featuring an almost photographic reproduction of a racing car in action. Since graphics in video games are good, but not that good, however, Sony also places a few screen shots on the packaging to show what the game actually does look like. Similarly, magazines that cover the video game industry routinely include screen shots to illustrate the games they review and discuss.
The veracity of the screen shots is not at issue in this appeal. Sony has not alleged that Bleem’s depictions of the games played in different ways are inaccurate or misleading; it simply contends that Bleem may not use those screen shots because they are Sony’s copyrighted material.
As one might imagine, screen shots for console games are regularly generated by freezing a game in mid-action and “grabbing” the image as it is displayed on the television. Screen shots can also be generated by grabbing the image as the game is played on a computer, but then adjusting the resolution downward to approximate the inferior resolution of a television screen. The first method involves a greater degree of verisimilitude to the claim that the screen shot represents what the game in fact looks like when played with a PlayStation console. The second method, however, is technologically easier.
Sony sued Bleem for a number of intellectual property violations. The only issue on appeal, however, is whether Bleem’s unauthorized use of Sony PlayStation game screen shots in its advertising was a violation of Sony’s copyright. The district court ruled in favor of Sony, entering a preliminary injunction against Bleem. Bleem filed a timely appeal.
II
A plaintiff is entitled to a preliminary injunction when it “demonstrates either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) the existence of serious questions going to the merits and that the balance of hardships tips sharply in [its] favor.” GoTo.com, Inc. v. The Walt Disney Co., 202 F.3d 1199, 1204 (9th Cir.2000). This Court may reverse the grant of a preliminary injunction “only when ‘the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact.’ ” Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596, 602 (quoting Roe v. Anderson, 134 F.3d 1400, 1402 n. 1 (9th Cir.1998)).
Bleem admits that it copied Sony’s copyrighted games to create screen shots for its advertising but contends that doing so was protected as a fair use under 17 U.S.C. § 107.
III
Justice Story introduced the concept of an exception to the law of copyright for fair uses in 1841. See Folsom v. Marsh, 9 F. Cas. 342 (C.C.D.Mass.1841). Distilling the common law from earlier cases, he provided that courts should:
look to 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.
Id. at 348. Expressed as such, fair use continued as exclusively a judge-made doctrine until the enactment of the 1976 Copyright Act, in which Justice Story’s words were codified:
