## Facts

- Sony manufactured the PlayStation console and copyrighted PlayStation video games, which were engineered not to run on personal computers.
- Bleem developed a software emulator enabling consumers to play PlayStation games on a PC, potentially with higher visual resolution than on a television.
- To market the emulator, Bleem used a limited number of actual screen shots from Sony games in print advertising and on retail packaging.
- The ads presented side-by-side images to compare how the same game scenes appeared on a PlayStation versus on a PC using Bleem, to support the claim that the games looked better on a PC.
- Sony sued for copyright infringement based only on Bleem’s copying and display of the screen shots in advertising and packaging; the legality of the emulator itself was not litigated in this appeal.
- The district court granted a preliminary injunction barring Bleem from using the screen shots; Bleem appealed.

## Issues

1. Whether Bleem’s unauthorized use of Sony’s copyrighted game screen shots in comparative advertising and packaging is protected fair use under 17 U.S.C. § 107.
2. Whether Sony was entitled to a preliminary injunction restricting Bleem’s use of the screen shots.

## Decision

- The Ninth Circuit vacated the preliminary injunction.
- The court held Bleem’s use of a small number of screen shots in comparative advertising and packaging constituted fair use under 17 U.S.C. § 107.
- The case was remanded with instructions to modify injunctive relief consistent with the fair-use holding.

## Legal Principles

- Fair use under 17 U.S.C. § 107 is determined by the four statutory factors, assessed together.
- A commercial use can still be fair use where the use is comparative and informational, and where use of the actual images is needed to make a truthful comparison.
- Using a small number of static screen shots from a video game comprising thousands of images can be an insubstantial taking favoring fair use.
- Market-effect analysis focuses on harm to a legitimate market for the copyrighted material used (here, screen shots), not harm from competition posed by a separate product.
- Copyright may not be used to block truthful comparative advertising of a competing product by asserting control over limited excerpts needed to convey the comparison.

## Conclusion

The Ninth Circuit concluded that Bleem’s limited copying of Sony game screen shots for comparative advertising was fair use and that the district court erred in granting a preliminary injunction, so the injunction was vacated and the matter remanded for modification consistent with the ruling.


Sony Comput. Ent. Am., Inc. v. Bleem, L.L.C., 214 F.3d 1022 (9th Cir. 2000)