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The Constitution grants Congress the power "[t]o 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."1 In line with these goals, the Copyright Act of 19762 grants copyright owners many exclusive rights, including the right to reproduce work, the right to prepare derivative works, and the right to distribute copies of the work.3 Unauthorized copying by another may constitute infringement upon the rights of a valid copyright owner.4 This is not the case if the copied material is an ideas or facts rather than an expression, or if the copied material falls within the realm of a fair use, such as: criticism, comment, news reporting, teaching, scholarship, or research.
The preceding list of possible fair uses8 is neither exhaustive nor dispositive 9 Congress has stated that the following factors should be considered when making a fair use determination: the purpose and character of the use, whether it is of a commercial nature or for non-profit educational purposes, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect upon the potential market for, or value of, the copyrighted work.10 This fact sensitive" multifactor122 analysis is not to be simplified with bright-line rules13 that elevate one factor above the other.14 Recently, however, in Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc.,15 the Second Circuit Court of Appeals engaged in such a conclusory analysis16 when it placed excessive emphasis on the first factory of the fair use test, under
107 of the Copyright Act of 1976.18 The court held that The Seinfeld Aptitude Test ("The SAT"), a trivia book about events and characters depicted on the television program Seinfeld, unlawfully copied from Seinfeld and that its copying did not constitute fair use and was thus actionable infringement.l9
In Castle Rock Entertainment, defendants, Beth B. Golub ("Golub"), The SAT's author, and Carol Publishing Group, Inc. ("Carol Publishing"), its publisher, appealed from the judgment of the district court granting the plaintiff, Castle Rock Entertainment ("Castle Rock"), the producer and copyright owner of each Seinfeld episode, summary judgment on a copyright infringement claim.20 Seinfeld was a sitcom...