1 — Ringgold's affidavit calls the work "Church Picnic." Affidavit of Faith Ringgold P 3. Her complaint calls it "Church Picture Quilt." Complaint P 7. Her brief calls it "The Church Picnic Story Quilt." Brief for Appellant at 7. The certificate of copyright registration calls it "Church Picnic Story Quilt." Joint Appendix at A-77. We will use either the title in the artist's own affidavit or "the story quilt," meaning the particular example of the generic form of work.
2 — Presumably, Judge Leval has in mind the posting of a photocopy of the cartoon; photocopying the cartoon, if not insulated by the doctrine of de minimis, or subject to some recognized defense, might violate the copyright proprietor's right to reproduce a copy of the work, see 17 U.S.C. § 106(1), though if the original page of the magazine was posted, the work would not have been "displayed . . . publicly," id. § 106(5).
3 — The Nimmer treatise helpfully refers to exact copying of a portion of a work as "fragmented literal similarity," see Nimmer, § 13.03[A], in contrast to “comprehensive nonliteral similarity,” which refers to an alleged copy that is qualitatively but not exactly similar to a copyrighted work, id. § 13.03[A]. We have endorsed that taxonomy. See Twin Peaks Productions, Inc. v. Publications International, Ltd., 996 F.2d 1366, 1372 n.1 (2d Cir. 1993); Arica Institute, Inc. v. Palmer, 970 F.2d 1067, 1073 (2d Cir. 1992).
4 — Whether a use of a copyrighted work that surpasses the de minimis threshold of "substantial similarity" for purposes of actionable copying can nevertheless be de minimis for purposes of the third fair use factor is an inquiry in the class of angelic terpsichore on heads of pins. Perhaps that is why the Supreme Court has quoted approvingly Professor Latman's reference to "the partial marriage between the doctrine of fair use and the legal maxim de minimis non curat lex." See Sony Corp. of America v. Universal Studios, Inc., 464 U.S. 417, 451 n.34, 78 L. Ed. 2d 574, 104 S. Ct. 774 (1984).
5 — The focus is such that the eight seated members of the audience who are visible and the four people standing along the wall to their left are all in clear focus. The poster is on the wall between two of these four people.
6 — The segments are: (1) a long, wide-angle shot of the audience and a performer on the stage, with the full poster too indistinct for anything of significance to be discerned (between two and three seconds); (2) a full view of almost the entire poster, as observable as the segment described in the text, with the lower right and lower left portions partially obscured as Joey walks up the aisle (2 to 3 seconds); (3) a close-up view of the right half of the poster, with the lower right portion partially obscured by the minister, who is standing next to the poster and on whom the camera focuses (1 to 2 seconds); (4) the segment described in the text (4 to 5 seconds); (5) similar to segment (3) (3 to 4 seconds); (6) a view of the lower right quadrant, partially obscured by a person (3 to 4 seconds); (7) similar to segment (6) (3 to 4 seconds); (8) similar to segment (6) (2 to 3 seconds); (9) similar to segment (6) (1 to 2 seconds).
7 — The District Court implicitly reached this same conclusion since it grounded its ruling on the fair use defense, a defense that would be reached only if the threshold of actionable copying had been crossed.
8 — Whether or not the cases relied on by the District Court were correctly decided, a matter we need not determine, they are distinguishable in important respects. First, both Mura and Amsinck held that televising or filming the copyrighted items (hand puppets and a teddy bear mobile, respectively) did not constitute making a copy. However, Mura was decided before the 1976 Act afforded copyright proprietors a display right, see 17 U.S.C. § 106(5), and Amsinck, though decided under the 1976 Act, did not consider a display right. Second, both decisions discussed the fair use defense as dictum, after finding lack of copying. See Mura, 245 F. Supp. at 590; Amsinck, 862 F. Supp. at 1048 ("defendants might still be entitled to a fair use defense"). Third, at least in Mura, the puppets were used functionally and for a somewhat educational purpose in the Captain Kangaroo television program. By contrast, Ringgold's work was used by defendants for precisely the decorative purpose that was a principal reason why she created it. Finally, both decisions regarded the fourth fair use factor as of primary importance and weighted the factor heavily against the plaintiffs. However, the erstwhile primacy of the fourth factor, see, e.g., Harper & Row, 471 U.S. 539 at 566, 85 L. Ed. 2d 588, 105 S. Ct. 2218, has been considerably modulated by the requirement announced by the Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 127 L. Ed. 2d 500, 114 S. Ct. 1164 (1994), that "all four factors are to be explored, and the results weighed together, in light of the purposes of copyright," id. at 578, and we have recently recognized the existence of a licensing market as relevant to the fourth factor analysis, see American Geophysical, 60 F.3d at 929-31.
9 — Section 107 states that a fair use for purposes "such as" the six listed categories is not an infringement, and section 101 states that "the terms 'including' and 'such as' are illustrative and not limitative." 17 U.S.C. §§ 101, 107.
10 — Of course, the creation of visual works serves other, often more important, purposes such as illuminating human understanding, providing inspiration, or provoking thought. Ringgold's work, in telling and illustrating an informative story, might well serve these purposes, but it also significantly serves a decorative purpose.
11 — We hesitate to say "conclusive" because even existing technological advances, much less those in the future, create extraordinary possibilities. For example, if the news program included a direct shot of an entire story quilt (whether original or poster reproduction), well lit and in clear focus, a viewer so inclined could tape the newscast at home, scan the tape, and with digital photographic technology, produce a full size copy of the original, thereby securing an attractive "poster"-like wall-hanging without paying the $ 20 poster fee. A news program that recommended this technique would be a weak candidate for fair use.
12 — The Patry treatise on fair use suggests that this case is better grounded, not on fair use, but as an example of "excused innocent infringement." See William F. Patry, The Fair Use Privilege in Copyright Law 484 (2d ed. 1995). Perhaps the author prefers to defeat such claims on the threshold ground that no actionable infringement occurred, rather than subject the news-gathering defendant to the vagaries of the fair use defense.
13 — To the extent that the defendants' good faith is relevant, see Rogers, 960 F.2d at 309, the fact-finder is entitled to consider that someone, likely a member of BET's production staff, cropped the poster before framing it so as to omit the legend identifying the poster with the High Museum. An available inference is that the production staff, if responsible, wanted the viewers to believe that the set was decorated with an original painting, rather than a poster reproduction.
14 — 2. Second factor. The District Court accepted the plaintiff's contention that the second fair use factor weighs in her favor because of the creative nature of her work.
3. Third Factor. Though we have earlier noted that the de minimis concept is inappropriate for a fair use analysis, since a copying that is de minimis incurs no liability, without the need for an elaborate fair use inquiry, the third fair use factor obliges a court to consider the amount and substantiality of the portion used, whenever that portion crosses the de minimis threshold for actionable copying. The District Court properly considered the brevity of the intervals in which the poster was observable and the fact that in some segments only a portion of the poster and the nearly full view was not in precise focus. 14 Our own viewing of the episode would incline us to weight the third factor less strongly toward the defendants than did Judge Martin, but we are not the fact-finders, and the fact-finding pertinent to each fair use factor, under proper legal standards, is for the District Court, although the ultimate conclusion is a mixed question of law and fact, Harper & Row, 471 U.S. at 560, subject to de novo review, New Era Publications International, ApS, 904 F.2d 152, 155 (2d Cir. 1990).
15 — The amicus curiae brief for the Artists Rights Society, Inc. and the Picasso Administration strongly indicates evidence of licensing of artistic works for film and television set decoration, evidence that plaintiff is entitled to present at trial.
16 — Even if the unauthorized use of plaintiff's work in the televised program might increase poster sales, that would not preclude her entitlement to a licensing fee. See DC Comics, 696 F.2d at 28.
17 — The New York Artists' Authorship Rights Act provides as follows:
1. No person other than the artist or a person acting with the artist's consent shall knowingly display in a place accessible to the public or publish a work of fine art or limited edition multiple of not more than three hundred copies by that artist or a reproduction thereof in an altered, defaced, mutilated or modified form if the work is displayed, published or reproduced as being the work of the artist, or under circumstances under which it would reasonably be regarded as being the work of the artist, and damage to the artist's reputation is reasonably likely to result therefrom . . . .
2.(a) The artist shall retain at all times the right to claim authorship, or, for just and valid reason, to disclaim authorship of such work. The right to claim authorship shall include the right of the artist to have his or her name appear on or in connection with such work as the artist.
. . . .
4.(a) An artist aggrieved under subdivision one or subdivision two of this section shall have a cause of action for legal and injunctive relief.
N.Y. Arts & Cult. Aff. Law § 14.03 (McKinney Supp. 1995). Ringgold claims that the defendants violated her statutory rights because they did not credit her as the creator of the story quilt. Though the defendants argued on various grounds that the statute does not apply to the facts alleged, the District Judge decided not to exercise supplemental jurisdiction over the claim. By our remand, we express no view as to the merits of this claim or of defendants' defenses.