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    SONY v BLEEM, 9917137v2

    U.S. 9th Circuit Court of Appeals

    SONY v BLEEM
    9917137v2

    SONY COMPUTER ENTERTAINMENT
    AMERICA, INC., a Delaware
    corporation,
    No. 99-17137
    Plaintiff-Appellee,
    
    D.C. No.
    v.
    CV-99-01590-CAL
    BLEEM, LLC,
    ORDER AND
    Defendant-Appellant,
    AMENDED
    and
    OPINION
    DAVID HERPOLSHEIMER; JAIME
    FELIX,
    Defendants.
    
    
    Appeal from the United States District Court
    for the Northern District of California
    Charles A. Legge, District Judge, Presiding
    
    Argued and Submitted
    February 14, 2000--Stanford, California
    
    Filed May 4, 2000
    Amended July 10, 2000
    
    Before: Diarmuid F. O'Scannlain, Edward Leavy, and
    Pamela Ann Rymer, Circuit Judges.
    
    Opinion by Judge O'Scannlain
    SUMMARY 
     
    The summary, which does not constitute a part of the opinion of the court, 
    is copyrighted C 2000 by West Group. 
    _________________________________________________________________
    
    Intellectual Property/Copyright
    
    The court of appeals vacated an order of the district court.
    The court held that the unauthorized use of an accurate still
    image from an animated video game for comparative advertis-
    ing constitutes "fair use" under the Copyright Act.
    
    Appellee Sony Computer Entertainment America Inc. man-
    ufactures PlayStation, a console for personal game videos, as
    well as their game disks. Sony's game discs are played via the
    console on the user's television; it cannot be played on a per-
    sonal computer (PC), as some other personal video games
    can.
    
    Appellant Bleem LLC developed a software emulator that
    allows the user to play a PlayStation game on a PC, which
    saves the user the price of a PlayStation, and enables gaming
    with the superior image resolution of a computer screen.
    Bleem's emulator did not affect the sale of Sony game disks,
    but likely reduced PlayStation sales.
    
    In its advertising, Bleem included comparative "screen
    shots" of PlayStation games to show what they looked like
    when played with Bleem's emulator on a PC screen, as con-
    trasted with its appearance when played on PlayStation with
    a TV screen. A video game screen shot is a small image
    depicting the computer or TV screen in a frozen moment dur-
    ing a game--the rough equivalent of a single frame from a
    movie.
    
    Sony sued Bleem, alleging that the unauthorized use of
    PlayStation screen shots was copyright infringement. The dis-
    trict court granted Sony's request for a preliminary injunction.
    Bleem appealed, contending that its inclusion of the screen
    shots was a fair use under the Copyright Act.
    
    [1] Fair use is not a copyright infringement. The factors to
    be considered in determining whether a use is fair include (a)
    the purpose and character of the use, including whether it is
    of a commercial nature; (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 on the potential market for or value of the copy-
    righted work.
    
    [2] The Bleem emulator competed directly with the
    PlayStation console. The greater Bleem's sales, the less likely
    people would buy Sony's consoles. To the extent that Bleem's
    software affected sales of Sony's games, it would do so only
    beneficially, since a greater universe of people would be able
    to play them. Nevertheless, Bleem's software competed with
    Sony's consoles as to both comparative advertising under the
    first factor, and profits under the fourth. [3] The first factor
    weighed in Bleem's favor. Comparative advertising redounds
    to the purchasing public's benefit with little loss to the integ-
    rity of Sony's copyrighted material.
    
    [4] The copyrighted work and the copies were both com-
    mercial video game products. Although copyrighted work is
    generally creative, a screen shot is not necessarily. A screen
    shot is merely an inanimate sliver of the game. [5] This factor
    neither supported nor hurt Bleem's claim that a fair use
    defense was appropriate.
    
    [6] Video is projected at 30 frames per second. A screen
    shot is therefore 1/30th of a second's worth of the video
    game. A screen shot is temporally a small amount of a game.
    A screen shot is of little substance to the overall copyrighted
    work. [7] The third factor supported a finding of fair use.
    
    [8] There was no market for screen shots, at least not one
    in which Bleem could participate, given Sony's refusal to
    license it. [9] However, assuming a market for screen shots,
    this factor weighed in Bleem's favor because this sort of use
    did not sufficiently impair Sony. Commercial use is not a con-
    trolling factor in this question, and use of the copyrighted
    work to critique the work may harm its market without pro-
    ducing cognizable harm under the Copyright Act. [10]
    Bleem's use of screen shots in its advertising had no notice-
    able effect on Sony's ability to do with its screen shots what
    it chose. This factor weighed in Bleem's favor.
    
    [11] The district court abused its discretion in entering a
    preliminary injunction against Bleem for its use of screen
    shots in its advertising. [12] It was a fair use for Bleem to
    advertise comparatively only between what PlayStation
    games actually looked like on a TV and what they actually
    looked like on a computer when played with the emulator.
    
    _________________________________________________________________
    
    COUNSEL
    
    Jonathan Hangartner (argued), Del Mar, California; Edward I.
    Silverman, Procopio, Cory, Hargreaves & Savitch, San Diego,
    California, for the defendant-appellant.
    
    James G. Gilliland (argued), Jennifer Y. Liu, Townsend &
    Townsend & Crew; Scott D. Baker, Ezra Hendon, Crosby
    Heafey Roach & May, San Francisco, California; Riley R.
    Russell, Sony Computer Entertainment America, Foster City,
    California, for the plaintiff-appellee.
    
    _________________________________________________________________
    
    ORDER
    
    The opinion filed on May 4, 2000, is amended as follows:
    
    On slip opinion at page 4955, line 20, add the words "irre-
    butability of the" before the words "presumption against fair
    use."
    With the opinion so amended, the panel unanimously votes
    to deny the petition for rehearing. Judge O'Scannlain and
    Judge Rymer vote to deny the petition for rehearing en banc
    and Judge Leavy so recommends.
    
    _________________________________________________________________
    
    OPINION
    
    O'SCANNLAIN, Circuit Judge:
    
    We must decide whether the unauthorized use of a "screen
    shot" -- a frozen image from a personal video game -- falls
    within the fair use exception to the law of copyright.
    
    I
    
    Personal video games come in two basic varieties: console
    games and PC games. Console games are played by loading
    a game disk into a console, which is connected to the user's
    television. PC games are played by loading a game disk into
    the CD drive of a personal computer. Sony Computer Enter-
    tainment America, Inc., ("Sony") manufactures both consoles
    -- the highly popular Sony PlayStation -- and their game
    disks. Sony PlayStation game disks are engineered such that
    they cannot by played on a PC.
    
    Bleem, LLC ("Bleem"), has developed a product, called a
    "software emulator," that allows one to cross the divide
    between console games and PC games. By using Bleem's
    software, one can now play a Sony PlayStation game on a
    personal computer. This development has two consequences:
    first, one need not buy a PlayStation console in order to enjoy
    Sony PlayStation games; second, the quality of the games'
    graphics may be greater because a computer screen is capable
    of greater resolution than a television screen. Bleem's product
    therefore allows it to tap into the two segments of video game
    players. For those enthusiastic video game players who do not
    want to pay for a PlayStation console, they can avoid having
    to do so by paying a smaller sum for the Bleem software. For
    those afficionados who have already purchased a Sony
    PlayStation console, the new Bleem software allows them to
    enjoy their games even more by playing them on a computer,
    which is capable of producing higher resolution graphics than
    a television. The graphics are a large component of any video
    game, such that games with better graphics -- and products
    that enhance the quality of graphics -- are highly prized in
    the market.
    
    The video game market is enormous and lucrative, and
    Sony, with its PlayStation console and games, is a market
    leader, having sold more than 60 million consoles and 460
    million video game disks worldwide. Emulators, such as that
    produced by Bleem, may not adversely affect the sales of
    Sony game disks -- in fact, they may help them -- but emula-
    tors very likely will reduce the sales of consoles.
    
    The Bleem emulator was developed by Randy Linden who,
    together with David Herpolsheimer, comprise the entire staff
    of Bleem. Linden developed PC software that effectively
    emulates the function performed by Sony's hardware console
    through a process of reverse-engineering the components in
    the console. He devised a computer program to perform these
    same functions on a personal computer. The legality of the
    emulator is not at issue in this lawsuit.
    
    The issue in this appeal is the validity of the method by
    which Bleem is advertising its product. In various advertising
    media, Bleem has included comparative "screen shots" of
    Sony PlayStation games. The shots show what the game looks
    like when played with a Sony console on a television screen,
    what it looks like when played with Bleem's emulator on a
    computer screen, and also at times what it looks like when
    played with Bleem's emulator and speed-enhancing hardware
    (called a graphics card) on a computer screen. A video game
    screen shot is a small image depicting the computer or televi-
    sion screen in a frozen moment during the playing of the
    video game. The cinematic equivalent of a 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 as Gran Turismo
    -- Sony's best-selling, racing car game -- might come pack-
    aged 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 reso-
    lution 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 PlaySta-
    tion console. The second method, however, is technologically
    easier.
    
    Sony sued Bleem for a number of intellectual property vio-
    lations. 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 prelimi-
    nary 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 Enter-
    tainment, 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. S 107.
    
    III
    
    [1] Justice Story introduced the concept of an exception to
    the law of copyright for fair uses in 1841. See Folsom v.
    March, 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 exclu-
    sively a judge-made doctrine until the enactment of the 1976
    Copyright Act, in which Justice Story's words were codified:
    
           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), schol-
           arship, or research, is not an infringement of copy-
           right. 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. S 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  (1994) (quoting Stewart v.
    Abend, 495 U.S. 207, 236  (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 sim-
    plified 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. 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 Connec-
    tix'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 deci-
    sion, and asserting that the commercial purpose of the copy-
    ing is "only a separate factor." Id. (quoting Campbell, 510
    U.S. at 585) (internal quotation marks omitted).
    
    We must therefore examine each of the S 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 firstS 107 fac-
    tor 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 fac-
    tor, 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 issues
    thus cut against one another, which forces advocates into
    awkward argumentative corners. Bleem, for instance, insists
    that the two companies do not compete with respect to any
    impact on profits but that they can be comparatively adver-
    tised. Similarly, Sony argues that of course Bleem's product
    will harm its sales, but that it is not a competitor, so it should
    not therefore be allowed the benefit of comparative advertis-
    ing.
    
    [2] What is manifestly clear, however, is that the Bleem
    emulator does compete directly with the Sony PlayStation
    console. In order to play a Sony video game, one can choose
    to purchase either a PlayStation console (assuming one has a
    television) or the Bleem emulator (assuming one has a per-
    sonal computer). Thus, the greater Bleem's sales, the less
    likely people will buy Sony's consoles. Of course, people can
    buy both, if they prefer to play their games on a large format
    (televisions typically have much larger screens than comput-
    ers) and if they prefer better graphics (computer screens typi-
    cally have much greater resolution than televisions). Of
    course, to the extent Bleem's software affects sales of Sony
    games, it will only do so beneficially, since a greater universe
    of people will now be able to play them. Nevertheless,
    Bleem's software competes with Sony's consoles  with respect
    to both comparative advertising under the first factor and
    profits under the fourth.
    
    We have not decided, apparently, any cases on the issue of
    comparative advertising after the codification of the fair use
    doctrine, but the Fifth Circuit has. The leading case involved
    a television commercial in which the Miami Herald displayed
    a cover of the copyrighted magazine, TV Guide , for the pur-
    poses of comparing it to its own analogous publication. See
    Triangle Publications, Inc. v. Knight-Ridder Newspapers,
    Inc., 626 F.2d 1171 (5th Cir. 1980). The Fifth Circuit noted
    that the cover of TV Guide was clearly copyrighted and the
    Herald had just as clearly reproduced it for a commercial pur-
    pose: to sell its own product. The court nevertheless found,
    after a S 107 analysis, that the reproduction was a fair use. See
    id. at 1178. With respect to the first factor, the Fifth Circuit
    noted the public benefit of comparative advertising as a
    means of providing more information to the public and con-
    cluded that this factor weighed in the defendant's favor. See
    id. at 1175--76.
    
    The Federal Trade Commission has also noted the social
    utility of comparative advertising:
    
           Comparative advertising, when truthful and non-
           deceptive, is a source of important information to
           consumers and assists them in making rational pur-
           chase decisions. Comparative advertising encourages
           product improvement and innovation, and can lead
           to lower prices in the marketplace.
    
    16 C.F.R. S 14.15(c) (1980). Sony does not contend that
    Bleem's screen shots are untruthful or deceptive. In fact,
    Bleem's comparative advertising has the potential to accom-
    plish all the goals espoused by the FTC. First, by seeing how
    the games' graphics look on a television when played on a
    console as compared to how they look on a computer screen
    when played with Bleem's emulator, consumers will be most
    able to make "rational purchase decisions." Sony argues that
    Bleem can advertise without the screen shots, which is cer-
    tainly true, but no other way will allow for the clearest con-
    sumer decisionmaking. Indeed, Bleem's advertising in this
    fashion will almost certainly lead to product improvements as
    Sony responds to this competitive threat and as other emulator
    producers strive for even better performance.
    
    [3] The first factor, considered in light of the animating
    principles of the copyright regime, weighs in Bleem's favor.
    Although Bleem is most certainly copying Sony's copy-
    righted material for the commercial purposes of increasing its
    own sales, such comparative advertising redounds greatly to
    the purchasing public's benefit with very little corresponding
    loss to the integrity of Sony's copyrighted material.
    
    B
    
    [4] The second factor under S 107 is the nature of the copy-
    righted work. This factor is of most relevance to the fair use
    analysis when the original material and the copy are of a dif-
    ferent nature. For instance, "if the copyrighted work is out of
    print and cannot be purchased, a user may be more likely to
    prevail on a fair use defense." Triangle Publications, 626 F.2d
    at 1176 n.14. On the other hand, if the copyrighted material
    is unpublished and creative while the copy is a commercial
    publication, courts would be less receptive to the defense of
    fair use. See Micro Star v. Formgen Inc., 154 F.3d 1107, 1113
    (9th Cir. 1998) (noting distinctions with respect to publication
    and creativity); Wright v. Warner Books, Inc. , 953 F.2d 731,
    737 (2d Cir. 1991). In this case, the copyrighted work and the
    copies are both commercial video game products; although
    the copyrighted work is creative in nature generally, a screen
    shot is not necessarily. A screen shot is merely an inanimate
    sliver of the game.
    
    [5] The Supreme Court has passed over this factor without
    giving it much attention, stating that it is often "not much
    help." Campbell, 510 U.S. at 586. In this Court, too, we have
    spent very little energy parsing it in video game cases such as
    Micro Star, 154 F.3d at 1111--12; in Connectix, the panel
    explored the factor and found against Sony since Connectix
    could not create its emulator without necessarily making some
    copies of the Sony material. 203 F.3d at 604--05. Just as the
    Fifth Circuit concluded in Triangle Publications , in this
    appeal this factor "neither supports nor hurts[defendant's]
    claim that a fair use defense is appropriate here. " 626 F.2d at
    1176.
    
    C
    
    [6] Clearly, the greater the degree of copying involved and
    the closer those copies are to the essence of the copyrighted
    work, the less likely the copying is a fair use. To evaluate this
    factor with respect to screen shots, some more technical detail
    may be helpful. Video games, much like motion pictures,
    create the illusion of movement by displaying in rapid succes-
    sion a series of still pictures with incremental differences.
    Film is projected at 24 frames per second; video is projected
    at 30 frames per second. A screen shot is therefore 1/30th of
    a second's worth of the video game. Temporally, therefore,
    there can be no doubt that a screen shot is a small amount of
    a video game. Inasmuch as these games involve plots that can
    be controlled interactively by the player and may elapse over
    several hours, it also seems true that a screen shot is of little
    substance to the overall copyrighted work. See Harper &
    Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539,
    565 (1985).
    
    [7] Sony contends that we have previously concluded, in
    Micro Star, that video game screen shots are worthy of pro-
    tection. Micro Star makes no such proclamation. In Micro
    Star, a company manufactured a game in which players pro-
    ceed through successive levels, gaining promotion to each
    new level as they succeed. 154 F.3d at 1107. Players can also
    create their own levels, and many did, posting them on a web
    site for the benefit of other players. A second company down-
    loaded 300 of those saved levels and sold them on a separate
    disk. See id. We held that these disks, packaged in boxes that
    happened to contain screen shots, constituted a copyright
    infringement since they were derivative works of the original
    game. See id. at 1114. Although we stated somewhat broadly
    that "we affirm the grant of the preliminary injunction barring
    Micro Star from selling [the disks] in boxes covered with
    screen shots of the game," we never discussed the issue of
    screen shots in our opinion. Id. This appeal is the first in this
    circuit squarely to raise the issue of the protectability of
    screen shots. In this analysis, the third factor will almost
    always weigh against the video game manufacturer since a
    screen shot is such an insignificant portion of the complex
    copyrighted work as a whole. Here, too, it seems clear that the
    third factor supports a finding of fair use.
    
    D
    
    [8] In addressing this fourth and most important factor, the
    Supreme Court considered
    
           not only the extent of market harm caused by the
           particular actions of the alleged infringer, but also
           "whether unrestricted and widespread conduct of the
           sort engaged in by the defendant . . . would result in
           a substantially adverse impact on the potential mar-
           ket."
    
    Campbell, 510 U.S. at 590 (quoting 3 M. Nimmer & D. Nim-
    mer, Nimmer on Copyright, S 13.05[A][4], at 13-102.61
    (1993)). The first question in this appeal is what precisely the
    market is. The market cannot be the video games themselves
    because it is the emulator that competes in that niche, not the
    screen shots that adorn the emulator's advertising. We have
    already ruled that the emulator is not a violation of the copy-
    right laws. See Connectix, 203 F.3d at 607. Sony argues that
    the market is in the screen shots themselves: Bleem's use of
    the screen shots impinges upon Sony's ability to use the
    screen shots for promotional purposes in the market. Bleem
    responds by contending that there is no market  in screen
    shots. Certainly screen shots are a standard device used in the
    industry to demonstrate video game graphics, but there is not
    a market for them, or at least not one in which Bleem may
    participate given Sony's refusal to license to it.
    
    [9] Assuming there is a market for screen shots, however,
    this factor still weighs in Bleem's favor, not because Bleem
    does not compete with Sony, as it contends, but because
    almost all precedent indicates that this sort of use does not
    sufficiently impair Sony. First, the Supreme Court has noted
    that commercial use is not a controlling factor in this question
    and that a use of the copyrighted work to critique the work
    may harm its market without producing cognizable harm
    under the Copyright Act. Campbell, 510 U.S. at 591--92
    (providing the example of a "scathing theater review" that
    "kills demand for the original" while still being a fair use).
    Second, the Fifth Circuit's comparative advertising decision
    similarly plays down such a "de minimis" effect on the copy-
    righted material's market:
    
           If the plaintiff loses a significant share of its present
           market, that would result not from the display of
           plaintiff's cover in defendant's advertising but from
           commercial competition with a work that does not in
           any way make use of plaintiff's copyrighted mate-
           rial.
    
    Triangle Publications, 626 F.2d at 1177. We made a similar
    observation in our recent decision, also involving Sony, stat-
    ing that
    
           some economic loss by Sony as a result of this com-
           petition does not compel a finding of no fair use.
           Sony understandably seeks control over the market
           for devices that play games Sony produces or
           licenses. The copyright law, however, does not con-
           fer such a monopoly.
    
    Connectix, 203 F.3d at 607.
    
    [10] Bleem's use of a handful of screen shots in its adver-
    tising will have no noticeable effect on Sony's ability to do
    with its screen shots what it chooses. If sales of Sony consoles
    drop, it will be due to the Bleem emulator's technical superi-
    ority over the PlayStation console, not because Bleem used
    screen shots to illustrate that comparison. This fourth factor,
    like all the others, appears to weigh in Bleem's favor.
    
    IV
    
    [11] Given that all four factors weigh in favor of the con-
    clusion that Bleem's use of the screen shots was fair, our
    attention must turn to whether the district court abused its dis-
    cretion in entering injunctive relief in favor of Sony. Upon the
    record before us, we cannot tell whether the district court
    engaged in the S 107 analysis and thus we have no evidence
    of its discretion. In the absence of such an analysis, it does
    appear that the district court abused its discretion in entering
    a preliminary injunction against Bleem for its use of screen
    shots in its advertising. See Anderson, 134 F.3d at 1402. Sony
    neither appears likely to prevail on the merits, nor has it
    shown how the balance of hardships tips in its favor to any
    degree. See GoTo.com, 202 F.3d at 1204. Therefore, we must
    vacate the preliminary injunction and remand to the district
    court for further proceedings.
    
    V
    
    We must qualify our holding with one caveat. Our conclu-
    sions with respect to Bleem's use of screen shots apply only
    to those screen shots that Bleem has generated by taking the
    actual images of Sony's games from a television screen. The
    entire premise of comparative advertising is that the consumer
    is being made aware of the true choices. To the extent Bleem
    merely approximates what the PlayStation games look like,
    by generating screen shots through a process of degrading a
    computer image, it is simply creating a simulation. If Bleem
    insists on generating simulated approximations of Sony's
    games, there is no need for Bleem to use Sony's copyrighted
    material whatsoever.
    
    [12] We conclude that it is a fair use for Bleem to advertise
    comparatively only between what PlayStation games actually
    look like on a television and what they actually  look like on
    a computer when played with the emulator. It is in this con-
    text alone that the comparison is necessarily Sony-specific.
    Otherwise, Bleem must be content to make its comparison
    without using another's copyrighted material. We are per-
    suaded by the need for Bleem to impose minimally upon
    Sony's copyright with respect to these screen shots because
    there is no other way to create a truly accurate comparison for
    the user. The way of simulations is a slippery one for Bleem
    and if it chooses to embark upon it, it must do so without the
    support of Sony's copyright. With that limitation in mind, we
    conclude that Bleem's use of Sony's copyrighted material was
    fair.
    
    Preliminary injunction VACATED; REMANDED with
    instructions to modify the preliminary injunction in accor-
    dance with this opinion.

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