Appellate Brief

This is an appeal from the final orders of the District Court, which gave the Appellee summary judgment. In this case, the parties are plaintiff-appellant Wymann Pharmaceuticals, INC and defendant-appellee People for Alternative Medicines, INC, and the issues are founded on the same set of facts in both cases (P.AM).

On January 28, 2022, the District Court issued a Memorandum Opinion and Order in which it granted the appellee a summary judgment on the basis that their ads constitute a fair use within the meaning of 17 U.S.C. § 107. It was determined that the district court had subject matter jurisdiction over the action according to 28 U.S.C § 1331and 28 U.S.C § 1338. On February 4, 2022, the appellant filed a notice of appeal against the district court’s verdict of January 28, 2022. Since the Notice of Appeal in this civil action was filed within 30 days of the district court’s decision, the appeal is timely according to Fed. Civ. R. P4(a)(1). Considering that the decision of January 28, 2022, is a final order or judgment that resolves all parties’ claims in Case No. 4:15-CV21-123-LH, this court has jurisdiction to hear and determine the merits of this appeal under 28 U.S. Code § 1295.

STATEMENT OF ISSUE PRESENTED FOR REVIEW

Is the appellee entitled to the judgement made by the district court granting the company summary judgment in the basis that there is no genuine dispute as to any material fact claiming the appellant’s slogan “Need Relief?” was not protected by fair use?

STATEMENT OF THE CASE

The appeal stemmed from the district court’s decision to grant the appellee summary judgment on the affirmative defense of fair use. Wymann Pharmaceuticals, Inc. (“Wymann”), the appellant, is a company, which produces herbal drugs, claims that its primary goal is to develop and promote alternative medical treatments and therapies (Compl. ¶ 3, ¶ 4.). The appellants filed a complaint demand for jury trial motion on January 7, 2021, alleging that, P.A.M, the Appellee had committed a federal copyright infringement.

The appellee responded by denying the allegations. In contravention of the appetite plant’s instructions, the appellee had illegally copied substantial original elements of the appellant’s Clarizac ads without the company’s permission. Furthermore, they had willfully violated the Clarizac commercials’ copyright design by employing the NatraTab advertisement’s slogan “Need Relief?”. A permanent injunction banning appelle from exploiting Wymann’s copyrighted content, as well as whatever additional remedies the Court deems appropriate and proper, was sought by the appellant in this case.

Developed by appellant, Clarizac is a drug used to treat clinical depression. It was approved by the FDA in early 2010. Clarizac was put through its paces by FDA beginning in 2011. Clarizac was approved in June 2016 and went on sale shortly thereafter. (Compl. ¶ 8, ¶ 9, ¶ 10.) In 2017, appellant developed a highly successful marketing campaign for Clarizac, that consisted of print and online advertisements in magazines, which was tremendously successful. Copies of the advertisements are on display as exhibits. Several of Clarizac’s commercials were broadcast in the United States, and the commercials was released with proper copyright notices that mentioned the company’s name. According to Registration No. 1291746, the advertising was duly registered for copyright with the United States Copyright Office in the name of the appellant and the advertising was successfully protected. (Compl. ¶ 13.) Since appellant acquired ownership of the Clarizac commercials’ copyright, the company has been the only owner and proprietor of all rights, title, and interest in and to the Clarizac advertisements. On July 2019, appellee began manufacturing and marketing NatraTab, a herbal therapy, which launched in July that year. (Compl. ¶ 15.) Clarizac and NatraTab are both medications that are used to treat the symptoms of depression.

In December of the same year, appellee launched a series of magazine advertisements. (Compl. ¶ 22.) Exhibits 5 through 10 are reproductions of the advertising. This type of advertisement began appearing in a variety of print and online publications in December 2019 and has continued to the present day. The structure, wording, and style of the NatraTab advertisements are extremely similar to the Clarizac advertisements in both content and appearance. It is widely used in all of the Clarizac advertising, with appellant’s registered trademark tagline “Need Relief?” being prominently included. “Need real relief?” read the NatraTab advertisements, which were confusingly identical to one another.

The appellee responded to the allegations set forth by the appellant in the complaint and demand for a jury trial, appellee contended that any copying by them of the Appellant’s advertisements was permissible and lawful as fair use of that expression under 17 U.S.C. § 107. (Ans. P. 24). The appellee asserted that the complaint lacked standing because it failed to state a claim upon which relief could be granted. Appellee denies that the NatraTab advertising used a slogan that was confusingly similar to the Appellants’ Clarizac commercials, alleging that the NatraTab commercials did not use a slogan that was confusingly similar to the Appellants’ Clarizac commercials. The appellee argued that the “Need Real Relief” phrase used in the NatraTab ad campaign highlighted the distinctions between the products rather than their similarities.

During the deposition of Larry Finkelman, the Appellee’s attorney pressed on the significance of the “Need Relief?” tagline, and Finkelman responded by saying that Clarizac is “like Coca-Cola and McDonald’s.” Clarizac and its catchphrase are well-known throughout the United States. Those looking for antidepressant medicines, the names Clarizac and “Need Relief?” have become household names. He also demonstrated the term’s originality by relating how the appellant hired Pierce Van Essa as director of marketing five years ago, and how he came up with the phrase “Need Relief?” In the company’s history, it was without a doubt the most successful commercial campaign. In 2017, the appellee got awarded with the Global Addy Award for the most outstanding advertising campaign of the year. Clarizac’s sales increased around the same period, and it is now the most often prescribed medication for clinical depression in the United States.

Appellant licensed the slogan “Need Relief?” to the Sunset Spa Mills Corporation. They manufacture a variety of products, including micro-bead pillows, sleep masks, and heated electric blankets, among others. The Spa Mills company uses the tagline to promote their products at spas and self-help conventions, and it has proven to be an effective marketing strategy. Since appellee began advertising Natratab commercials utilizing appellant’s advertisements, Clarizac sales have decreased by 30 percent as a result. (Pl. Dep. 4.) NatraTab’s marketing, which employed a nearly identical slogan and ad format, had a detrimental impact on sales. A consequence of this was that the Finkelmans alleged that the company had stolen Wymann’s good name and his clientele. Appellee’s approaches, in general, undermined the effectiveness of appellant’s advertisement as well as the strength of their catchphrase by wearing it out or weakening its association with Clarizac. Finkelman asserted that appellant’s advertising strength has been exploited by the appellee, which has profited at the appellant’s expense while the company has suffered substantial financial losses.

In addition to promoting NatraTab, appellee’s marketing strategy is designed to criticize Clarizac as well as promote the company. To demonstrate that actual relief from Clarizac’s other adverse effects is required, appellee chose to copy the appellant’s advertising rather than come up with a more original idea for the direct test. Appellee’s appropriation of appellant’s concept was a parody of the Clarizac advertising campaign as a whole. NatraTab sales have climbed dramatically after the company began running the very effective advertisement, but the appellee denies that this is the primary reason for the increase.

On October 2, 2021, the defendant appointed Dr. Heinz Precht, Ph.D., Professor of Marketing at the University of Michigan in Ann Arbor, as his consultant. His conclusions were subsequently founded on marketing concepts, which led him to the conclusion that the Need Relief Campaign’s realistic potential market is limited to advertising for the drug Clarizac. He also determined that the Need Relief Campaign’s useful existence has come to an end, which he shared with others. Although a modest derivative market exists for one component of the Need Relief Campaign, the phrase “Need Relief,” there is little to no market for a product that combines the overall style of the Need Relief Campaign commercials as a feature of the product, according to him.

In response to the appellee’ motion for summary judgement, it was determined that the advertising campaigns for appellee constitute fair use of the appellant’s advertisements, and the motion for Summary Judgment was granted. Ultimately, the court determined that there is no genuine dispute over any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (c). According to the Court, the appellees. advertisements constitute a fair use within the meaning of 17 U.S.C §107. The decision was made after the court used the four factors highlighted in 17 U.S.C §107 Copyright Act which are: four factors which include: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the work used; and the effect the use has on the copyrighted work’s value. Therefore, as a matter of law, the District Court determined that the appellee did not violate the copyright statutes and regulations, thus establishing a viable fair use defense by 17 U.S.C §107.

SUMMARY OF ARGUMENT

The District Court erred in granting a summary judgement to the appellee. Summary judgment is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (c). However, in this case, there are the material facts that convey that the infringement by appellee on appellant’s slogan does not constitute fair use. For the purpose of supporting its ruling, the court stated that the appellee’s ads are “fair use” under17 U.S.C. § 107 and, as such, do not constitute a copyright infringement of the “tangible medium of expression.” Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).

The District Court erred in precluding that there isn’t a genuine dispute on the grounds of infringement. An appeal is required in this copyright infringement case because the appellant can prove two things: that they own a copyright and that the appellee infringed. To establish ownership of legitimate copyright, the appellant must first demonstrate that the work is original and that it is protected by applicable legislation. The appellee was the first to coin the slogan “Need Relief?” on its initiative. The slogan was created five years ago when the company employed Pierce Van Essa as director of marketing. It is, the most successful sales and marketing campaign the company had ever seen in the appellee’s history. Due to its effectiveness, the term got awarded the Global Addy Award for the best advertising campaign in 2017.

Copyright law protects “original works of authorship” that are currently in existence or that may one day exist. “Originality is a constitutional requirement” under copyright law, the Supreme Court of the United States declared in Co. v. the United States, 499 U.S. 340, 346 (1991), concluding that it “requires autonomous creativity combined with a level of inventiveness.”

Valid copyright is established by demonstrating the originality and copyrightability of the material, as well as compliance with the statutory formalities,” according to the decision Norma Ribbon Trimming Inc v. Little, 51 F.3d 45, 47 (Federal District Court of the District of Columbia) (5th Cir. 1995). The copyright of the slogan was well established and was an original one established by the appellee to promote Clarizac, the appellant’s antidepressant drug.

Once the originality is established, the appellant must demonstrate that they have adhered to the formal standards for delivering notice of copyright that is required by federal copyright law. Even though registration with the United States Copyright Office is not required, doing so raises rebuttable presumptions about the validity and ownership of a work. Appellant’s advertisements for Clarizac were published in the United States with the proper form of copyright notice in the company’s name. The appellant has submitted a trademark application for the slogan and has done so by the applicable laws and regulations. It is the appellant’s legal right and privilege to use the tagline “Need Relief?” thus the company owns all legal rights and privileges in the slogan and has licensed the phrase to Sunset Spa Mills Company.

Additionally, appellee’s action of infringing appellant’s copyrights to their slogan amount to a criminal offense that could be committed because it meets two additional requirements: the appellee must have acted deliberately and must have sought commercial advantage or private financial gain to commit the offense. In this case, “willful” conduct refers to the fact that appellee behaved with the knowledge that they were breaking the law. The appellee purposefully copied, exploited the copyrighted work, and intentionally infringed on the copyright. During an oath-taking session, the CEO of the appellee. admitted to willfully stealing appellant’s phrase and using it in the advertising. A claim of error or likeness on the appellee’s part is insufficient to defeat the duplication of the facts of the case.

Specifically, the appellee sought “commercial advantage or private financial gain” in connection with the second condition, which requires the appellant to demonstrate that the appellee planned to make money or acquire some other benefit as a result of their infringement. It is not required that they establish that they have benefited in any manner from the situation. In the cross-examination testimony, the CEO stated that the company’s purpose was to derail appellant’s medicine development. Many people would have been stopped from obtaining medicine from appellant as a result of this move, increasing appellee’s chances of being exposed in the public domain. Furthermore, using appellant’s style and ad format ultimately led to misunderstanding among their clients, who would then purchase the product because they believe appellant has developed a “natural” version of Clarizac. P.A.M prospered and gained the reputation as a result of its imitation of Wymann’s slogan, whilst Wymann was viewed as a joke, resulting in the loss of customers and the incurring of significant losses.

The fact that the appellant generated a substantial amount of money after stealing the appeant’s slogan “Need Relief?” is beyond dispute. It is likely that the unexpected increase in sales of Natrahad was attributed to the effectiveness of the slogan used in the advertising. In the case of The Cat NOT in the Hat! Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997), an author attempted to describe the events of the O.J. Simpson murder trial in the style of a Dr. Seuss book while imitating the style of a Dr. Seuss book. Dr. Juice’s spoof of himself. According to the Ninth Circuit Court of Appeals, the book was a satire rather than a parody because it did not mock or condemn Dr. Seuss or his writing. Instead, it simply narrated the story of murder using characters and a style similar to Dr. Seuss’. Courts have ruled that the author’s work is non-transformative and purely commercial.

ARGUMENT ON APPEAL

Standard of Review

This Court “review[s] de novo the district court’s grant of summary judgment.” Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d 423, 431 (6th Cir. 2008).

The district court erred in determining that the complaint did not raise a genuine issue of material fact when the appellee sought summary judgment under Fed. R.  Civ. P. 12(b) (6). the appellee duplicated the language, layout, and design of the appellant’s magazine advertising and utilized them in a substantially similar form in its own magazine advertisements. Therefore, appellant must show that the PAM advertisements are being used for commercial purposes, and that the appellee’s advertisements are not transformative works that change the expression, meaning, or message of the appellant’s advertisements, and that the appellee’s advertisements are not parodies. The appellee’s petition fails to prove that there is no significant question of material fact in the case, according to the fair use argument (17 U.S.C. 107). As a consequence, granting a summary judgment motion would be incorrect in this case.

     I.         Appellee’s use is no fair use because its use was done in a non-transformative, non-parodic, and non-educative way; its use was merely for commercial purposes and to usurp the demand for the original products.

Copyright is governed by 17 U.S.C. § 101 which recognizes that a copyright owner has exclusive rights in a copyrighted work and thus unless allowed by the same law, no party is allowed to infringe on this right and use such works without the permission and consent of the owner.

Under the doctrine of fair use, 17 U.S.C. § 101 Copyright Act allows a party to use copyrighted works without the owner’s permission under the main four factors which include:

  1. .

For the doctrine of fair use, the threshold is both of fact and law. Zomba Enters. v. Panorama Records, Inc., 491 F.3d 574 (6th Cir. 2007). Therefore, from the facts and the applicable law in the instant case, the Court should find that the doctrine of fair use cannot be relied upon by Appellee.

A. Purpose and substance of the use of Appellant’s advertising was not transformational nor parodistic, it was for commercial benefits

a. The appellee’s copyright infringement of appellant’s ads did not add something new to that of the appellant.

 For the courts to gauge the purpose and character of the use, one of the vital aspects that they consider is whether the new works are transformative. Zomba Enters. v. Panorama Records, Inc., 491 F.3d 574 (6th Cir. 2007). Whether new work is transformative, the court should inquire whether it “merely supersedes the objects of the original creation or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).

The appellee’s copyright infringement of appellant’s slogan did not add something new to that of the appellant. Instead, their ads were for commercial basis. The purpose of the ads as used by Appellee was similar to Appellant’s and that is to promote the tabs which were also similar to what the Appellant produced, and thus, not transformative. Balsley v. LFP, Inc., 691 F.3d 747 (6th Cir. 2012).If the appellee’s ads were transformative, they would have added something new to the appellant and the company wouldn’t have experienced any financial backlash, instead they would have benefited. For copying of copyrighted work, the threshold according to VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 881 (9th Cir. 2016), is that copyright protection will extend only to copying that is considered non-trifling, or substantial, in the belief that doing so will strike the requisite balance between the protection of artists’ labors and the constitutional intention of promoting artistic creativity. However, nothing substantial was added to appellee’s ads that would transform the appellant’s ads to something new, and thus, they cannot rely on fair use. Lennon v. Premise Media Corp., L.P., 556 F. Supp. 2d 310 (S.D.N.Y. 2008).

Thus, when this factor of whether the ads are transformative or not is considered, Appellee’s use of the ads cannot be excused under fair use because it did not add something new to the appellant’s ads, and thus, should be held to have violated Appellant’s copyrighted works.Dr. Seuss Enters. v. Penguin Books U.S.A., Inc., 109 F.3d 1394 (9th Cir. 1997). Therefore, Appellee’s ads are not transformative in any way, and a claim of fair use would not suffice.

b. The appellee’s ads were the focus of their sales and profit as they were able to downplay Appellant’s products and promote their products using similar ads, and thus, this commercial use was only meant for profit.

The fair use analysis considers “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” § 107(1). In Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, 451(1984), the Court noted that, “every commercial use of the copyright is presumptively . . . unfair . . .”.  The appellee planned to make money or acquire some other benefit as a result of their infringement.

The appellee sabotaged the appellant’s market and reputation in order to gain financially. The court recognized that the character of the NatraTab ads is primarily commercial but stated that they were educational. The aspect of them being informative is minimal because it was used to enable them to pave their way in the appellant’s market and primarily gain customers while making more money. This was an exploitation of Appellant’s dominant position in the market by using the Appellant’s ads to gain profit and thus the doctrine of fair use cannot suffice. Princeton Univ. Press v. Mich. Document Servs., 99 F.3d 1381 (6th Cir. 1996). It is likely that the unexpected increase in sales of Natrahad was attributed to the effectiveness of the slogan used in the advertising. In the case of The Cat NOT in the Hat! Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997), an author attempted to describe the events of the O.J. Simpson murder trial in the style of a Dr. Seuss book while imitating the style of a Dr. Seuss book. Dr. Juice’s spoof of himself. According to the Ninth Circuit Court of Appeals, the book was a satire rather than a parody because it did not mock or condemn Dr. Seuss or his writing. Instead, it simply narrated the story of murder using characters and a style similar to Dr. Seuss’. Courts have ruled that the author’s work is non-transformative and purely commercial. When the appellee used the slogan, it caused confusion among the appellant’s customers who would have bought the appellee’s drug with the thought that it’s the natural version the appellant’s Clarizac anti-depressant drug. Also, the action of copying the appellant’s slogan enabled the appellee to overtake the appellant in the market and this resulted to the appellee’s drug gaining more prevalence.

Therefore, the appellee’s use of the appellant’s slogan was merely for a commercial purpose. The ads were the focus of their sales and profit as they were able to downplay Appellant’s products and promote their products using similar ads, and thus, this commercial use was only meant for profit. Therefore, they cannot rely on the doctrine of fair use. Jackson v. Warner Bros., 993 F. Supp. 585 (E.D. Mich. 1997).

c. Appellee’s ads had substantial similarities and were not transformative nor creative in any way, and thus, cannot be considered a parody nor can they rely on fair use

There is a lot of similarities of the appellee’s ads to that of the appellant and cannot be categorized as parody. In Twin Peaks v. Publications Int’l, Ltd., 996 F.2d 1366 (2d Cir. 1993), a company published a book entitled Welcome to Twin Peaks: A Complete Guide to Who’s Who and What’s What, containing direct quotations and paraphrases from the television show Twin Peaks, as well as detailed descriptions of plots, characters, and setting. It was held that the amount of the material taken was substantial and the publication adversely affected the potential market for authorized books about the program.  In Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), to be eligible for the fair use doctrine in the United States, a permitted parody must employ and target a specific copyright work; it may not use a single word as a weapon to attack a wider target.

The court acknowledged that the advertising for NatraTab is similar to that of Clarizac because both present head shots on a neutral background with a slogan in broad typeset at the top and a text box in the lower left-hand corner. However, court discerned this as a way for the appellee being humorous and thus considered it as parody. Appellee’s ads had substantial similarities and were not transformative nor creative in any way, and thus, cannot be considered a parody nor can they rely on fair use. In SunTrust Bank v. Houghton Mifflin Company, 268 F.3d 1257 (11th Cir. 2001),the defining element as to whether the book was a parody of its original was newer elements added such as guidance and criticism, and further, there was no substantial similarity between the books. The court agreed and held that the book was a parody of the original due to the lack of substantial similarity and the fact that the parody had certain elements, not in the original works, and thus, entitled to fair use doctrine.

The appellee’s ads can only amount to parody if its purpose is to serve as a social commentary and not for purely commercial gain. The court noted that the character of the NatraTab ads is primarily commercial, but also to criticize the message conveyed by the Wymann ads. The fact that they have an intention of gaining financially for copying the adds undermines any parodistic nature of the ads.

Therefore, appellee’s ads were non-parodic as they were merely an imitation meant to attract attention and avoid the work of developing original work. Dr. Seuss Enters. v. Penguin Books U.S.A., Inc., 109 F.3d 1394, 1401 (9thCir. 1997). The ads utilized by the Appellees were non-parodic, and cannot rely on fair use.

B. The appellant’s advertisements are original and were designed by Pierce Van Essa, the appellant’s director of marketing, and should be afforded a high level of protection.

Copyright law protects “original works of authorship” that are currently in existence or that may one day exist. “Originality is a constitutional requirement” under copyright law, the Supreme Court of the United States declared in Co. v. the United States, 499 U.S. 340, 346 (1991), concluding that it “requires autonomous creativity combined with a level of inventiveness.” Valid copyright is established by demonstrating the originality and copyrightability of the material, as well as compliance with the statutory formalities,” according to the decision Norma Ribbon Trimming Inc v. Little, 51 F.3d 45, 47 (Federal District Court of the District of Columbia) (5th Cir. 1995). Once the originality is established, the appellant must demonstrate that they have adhered to the formal standards for delivering notice of copyright that is required by federal copyright law. 17 U.S.C § 1310. Even though registration with the United States Copyright Office is not required, doing so raises rebuttable presumptions about the validity and ownership of a work.

Original works are simply more deserving of copyright protection than other types of works and consequently establishes the scope of copyright protection that should be afforded the original copyrighted work. 17 U.S.C § 1301. The appellants’ work enjoys broader copyright protection as they are original works. Nunez v. Caribbean Int’l News Corp., 235 F.3d 18 (1st Cir. 2000). The appellant’s ads were duly registered for copyright with the United states Copyright Office in the name of the appellant under Registration No. 1291746. 17 U.S.C § 1310. Appellant’s ads were original works, and thus, a broader, high degree of protection should be accorded to the works. Dr. Seuss Enters. v. Penguin Books U.S.A., Inc., 109 F.3d 1394 (9th Cir. 1997).

The ads were original works of the appellants and should have been accorded protection from infringement by the appellee. The “Need Relief?” slogan was formed five years ago when the appellant employed Pierce Van Essa as director of marketing, and he was the one who came up with it. Although the court was aware that the appellant’s ads are original and should have been afforded greater protection, it dismissed the factor of the nature of the copyrighted worked on the basis that the appellee’s ads were a parody. The scope of fair use is greater for an “informational work” that is designed to inform or educate, such as a work of facts, information, scholarship or news reporting, than it is for a more “creative work”, such as a work of fiction, art or music, that is designed to provide entertainment. However, the striking similarity and the commercial gain by the appellee dismisses the claims of the ads being a parody. Therefore, due to the non-parodic nature of Appellee’s ads, this factor should be accorded a priority, and it should be found that the doctrine of fair use cannot be raised in this instance.Dr. Seuss Enters. v. Penguin Books U.S.A., Inc., 109 F.3d 1394 (9th Cir. 1997).

The appellee caused confusion by copying original ads and slogan which was highly associated with the appellant’s Clarizac antidepressant medicine. For instance, the products being advertised by Appellant and Appellee are similar, the style of the adverts themselves are almost identical, and thus, there is a likelihood that even consumers will be confused. Groeneveld Transp. Efficiency, Inc. v. Lubecore Int’l, Inc., 730 F.3d 494 (6th Cir. 2013). As per the audience test, as construed in Ideal Toy Corporation v. Fab-Lu Limited., 360 F.2d 1021, 1022 (2d Cir. 1966),the test to determine substantial similarity is “whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir. 1966).It is submitted that a reasonable layperson would infer that the Appellee merely copied Appellant’s original works and that the similarity is substantial.

Therefore, appellant’s advertisements are original and were designed by Pierce Van Essa, the appellant’s director of marketing. Since there is a hierarchy of copyright protection, the appellant’s original and creative work of the appellant should be protected and the defense by the fair use defense is non-applicable.

C. A great amount and substantiality of the appellants work was used by the appellee in a manner that is not transformative and neither parodic.

This factor relies on “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” § 107(3). Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. The appellee purposefully copied, exploited the copyrighted work, and intentionally infringed on the copyright. Since the appellee used a large portion of the appellant’s copyrighted work, fair use is less likely to be found.

The court stated that parody presents a unique problem when analyzing the factor of amount and substantiality of the copyright work portion used. However, appellant’s ads were an imitation of the appellee ads and that cannot amount to. There was substantial similarity between the ads and in cases where the similarity is significant, and it cannot be considered as parody. Also, appellee’s ads were non-transformative and cannot be construed as new work, and thus, the defense of fair use fails.Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir.1998).

Therefore, as the Appellee used a greater portion of Appellant’s ads, then the less likely that such a taking qualifies as parody and cannot rely on fair use. Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267 (6th Cir. 2009). A greater portion of Appellant’s ads was used by the Appellee in a manner that is not transformative and neither parodic.

D. There is a high likelihood that the challenged work will usurp or replace the demand for the original as seen from the sales, which are soaring above the original, and thus, the possible usurp means that the defense of fair use fails

The courts should review whether, and to what extent, the unlicensed use of appellant ads by the appellee harms the existing or future market for the appellant’s copyright owner’s original work. The appellee’s use of the ads is hurting the current market for the appellant’s original work. In Sony Corporation of America v Universal City Studios, Inc., 464 U.S. 417 (1984),the Court noted that, “every commercial use of the copyright is presumptively . . . unfair . . .” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

The increase in sale for the appellee’s antidepressant drug was significant after the company incorporated the use of ads. On the other hand, this injured the reputation and lowered the market value of the appellant’s drug. The appellee was selling a similar commodity to that of the appellant.  The appellant was taking lead in the sale of antidepressants and thus copying the ads was the best way for the appellee company to market its drug. As a result, the appellee’s drug starting gaining more prevalence and most of appellant’s customers confused the appellee’s drug to be a natural version of the appellant’s drug. The appellee gained more customers and made more profits while the appellant was incurring losses. Appellee’s use of the ads was for a commercial purpose, and thus, the presumption of unfair exploitation applies in the instant case. Balsley v. LFP, Inc., 691 F.3d 747 (6th Cir. 2012).

Therefore, there is a high likelihood that the challenged work will usurp or replace the demand for the original as seen from the sales, which are soaring above the original, and thus, the possible usurp means that the defense of fair use fails. Campbell, 510 U.S. at 598 (Kennedy, J., concurring). Therefore, the appellee’s use of the ads is hurting the current and future market of the appellant’s anti-depressant drug.

E. Each of the explained factors when weighed together do not favor the appellee’s defense of fair use.

Within the meaning of 17 U.S.C. § 107 the P.A.M. ads do not constitute a fair use and therefore are a copyright infringement of the appellant’s ownership rights. The use of the Appellant’s original works was done in a non-transformative, non-parodic, and non-educative way merely for commercial purposes and to usurp the demand for the original products. Appellant’s ads were original works as such a high degree of protection should be accorded because the Appellee utilized the original copyrighted works in a non-parodic manner. A great amount and substantiality of the Appellant ads was used by the appellee. The appellant incurred losses when the appellant used the company’s ads. It is therefore the Appellant’s position that the Appellee’s reliance on fair use should not be sustained by this court as their use of the ads constituted an infringement of copyright. Thus, they cannot rely on fair use as their actions constitute an infringement of copyright

The appellee should not have been granted a summary judgement because there is enough material fact that prove that the appellee violated the appellant’s exclusive copyrighted work rights. The appellee used the appellant’s slogan without permission, infringing on the company’s intellectual property rights. The appellee was well aware of the positive impact the ads would have on the company, and the infringement was carried out to gain financial advantage and expand the company’s market share. Rather than replicating the slogan for transformative reasons, the appellee sought to supplant the work’s original usage, which did not meet the requirements of fair use.

Conclusion

For the reasons stated above, the district court made an error in determining that the appellee’s advertisements constituted fair use of the appellant’s ads. As a result, the district court’s decision to grant People for Alternative Medicines, Inc. a summary judgment should be overturned.

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