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Turning to the third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, the Court acknowledged that "parody presents a difficult case," id. at 588, because "parody's humor, or in any event its comment, necessarily springs from recognizable allusion to its object through distorted imitation." Id. That observation led the Court to make three significant points concerning third-factor analysis. First, consideration must be given not only to the quantity of the materials taken but also to "their quality and importance" to the original work. Id. at 587. Second, "the parody must be able to 'conjure up' at least enough of the original to make the object of its critical wit recognizable." Id. at 588. In departing from prior decisions indicating that a parody entitled to the fair use defense could take no more than an amount sufficient to "conjure up" the original, see Walt Disney Productions v. Air Pirates, 581 F.2d 751, 757-58 (9th Cir. 1978); Columbia Pictures Corp. v. National Broadcasting Co., 137 F. Supp. 348, 350 (S.D. Cal. 1955); see also Berlin v. E. C. Productions, Inc., 329 F.2d 541, 545 (2d Cir. 1964) (no infringement where parodist copied no more than necessary to "conjure up" original), Campbell explicitly cited our use of the "at least" formulation in Elsmere Music, 623 F.2d at 253 n.1. See Campbell, 510 U.S. at 588. Third, the Court explained that "once enough has been taken to assure identification, how much more is reasonable will depend, say, on the extent to which the [copying work's] overriding purpose and character is to parody the original or, in contrast, the likelihood that the parody may serve as a market substitute for the original." Id. With respect to the fourth factor, effect upon the potential market for or value of the original, the Court explicitly rejected any presumption of market harm to the original from copying "involving something beyond mere duplication for commercial purposes." Id. at 591. The Court instead noted that, "as to parody pure and simple, it is more likely that the new work will not affect the market for the original in a way cognizable under this factor . . . because the parody and the original usually serve different market functions." Id. (citations omitted). The Court also noted that harm to the original resulting from the "lethal" nature of the parody is not "a harm cognizable under the Copyright Act." Id. at 591-92. Finally, the Court observed that a parody might inflict cognizable market harm if the parody serves as a market substitute for a derivative work based on the original. See id. 592-94.
VI. Application of Campbell to Kostabi Dalis
A. First factor.
Applying Campbell to the first-factor analysis, we inquire whether the Kostabi Dalis "may reasonably be perceived," id. at 582, as a new work that "at least in part, comments on" Dali's work, id. at 580. There is little enough in the original Dali "works," and little more is added in the Kostabi Dalis. Still, in the defendant's assessment, there is twice as much as is contained in the originals, "two signatures, not one." When asked what he had added to the originals, assuming they were taken to be works, he replied that "the original 'works' did not bear my signature." He asserts that if the Dali's signature is "work," then Kostabi's own signature is also work, applied to the original and transforming it into an entirely new work. Given the minimalism of the original, Kostabi's addition may be sufficient to qualify the Kostabi Dalis as "transformative" works.
Whether they "comment" on the originals is a different question. Whether Kostabi has explicitly made the claim or not, his work might reasonably be perceived as a critique of art commercialization and the fetishization of famous artists. They might even be commenting on the decline of Salvador Dali himself. The commentary, though possibly inscrutable to some, would likely be understood by buyers in the market for fine art. Kostabi's canvases and lithographic reproductions have certainly entered the stream of commerce, as did Dali's original blank canvases, albeit on a wholesale level, awaiting the application of reproduced Dali works before presentation to buyers. The contrast achieves the effect of ridicule that the Court recognized in Campbell would serve as a sufficient "comment" to tip the first factor in a parodist's favor. See id. at 583 ("It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works.") (footnote omitted).
In saying this, however, we examine whether the purported parodist could merely point out some feature that contrasts with the original and thus prevail on the first factor. Mere difference does not necessarily constitute a "comment" on the original. Nevertheless, the Kostabi Dalis are not merely different; they differs in a way that may reasonably be perceived as commenting, through ridicule, on what a viewer might reasonably think is the crass commercialism of Salvador Dali's art and art in general, including Kostabi's own. n6