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—
(a) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(b) the nature of the copyrighted work;
(c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(d) the effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C. § 107. The fair use doctrine thus “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (quoting Stewart v. Abend, 495 U.S. 207, 236, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990)). The process of applying these fair use factors to the facts of any particular scenario calls for case-by-case analysis, and the “task is not to be simplified with bright-line rules.” Id. The four factors are to be considered together in light of the purposes of copyright, not in isolation. See id.
In this analysis, the commercial use of copyrighted material is not presumptively unfair; rather, commercial use is but one of four factors that we must weigh. The Supreme Court expressly rejected the irrebutability of the presumption against fair use in commercial contexts in Campbell when the Court flatly reversed the Sixth Circuit for making just such a presumption. 510 U.S. at 590–91, 114 S.Ct. 1164. The Court emphasized that, although the fourth factor may be the most important, all factors must be considered, and the commercial nature of the copies is just one element in the broader calculus. See id.
We reiterated that position in our Connectix decision, reversing the district court for, inter alia, applying such an erroneous legal standard. The district court held that Connectix’s commercial purpose in copying Sony’s software gave rise to a “presumption of unfairness … that can be rebutted by the characteristics of a particular commercial use.” 203 F.3d at 606. We rejected this rule, noting the Campbell decision, and asserting that the commercial purpose of the copying is “only a separate factor.” Id. (quoting Campbell, 510 U.S. at 585, 114 S.Ct. 1164) (internal quotation marks omitted).
We must therefore examine each of the § 107 factors to evaluate Bleem’s fair use defense.
A
The fact that Bleem copied Sony’s copyrighted material for commercial purposes is an element of both the first § 107 factor and the fourth. As to this factor, Bleem used screen shots for Sony games on its advertising to provide a comparison between what the games look like when played with a Sony PlayStation console and what they look like when played with Bleem’s emulator on a personal computer. We conclude that Bleem’s use of the screen shots constitutes comparative advertising.
This question of whether the two companies compete is an important consideration because, with respect to the first factor, interpreting the copying as comparative advertising is more likely to lead to a conclusion of fair use; but, with respect to the fourth factor, determining that the copying will have a detrimental impact on the copyright holder’s profits is less likely to lead to a conclusion of fair use. These
