Whether a scholarly book offered for sale is a non-commercial work under the first fair use factor

QUESTIONS PRESENTED Petitioner Alan Wofsy reproduced documentary photographs of Pablo Picasso’s artwork for inclusion in a comprehensive, annotated series of reference books on the artist’s works. Wofsy’s undertaking was authorized by Picasso’s estate, which held the copyright in the works of art. However, the owner of the copyright in a previously published book series that included the reproduced photographs successfully sued Wofsy for copyright infringement in France. Two district judges denied recognition of the French judgment, but the Ninth Circuit wrongly reversed the district court each time. In reversing the district court the second time, the Ninth Circuit concluded that Wofsy’s use of the disputed photographs did not constitute fair use, parting ways with its sister circuits regarding the meaning of the first three fair use factors under 17 U.S.C. § 107, and raising the following questions: (1) Under the first fair use factor, is a scholarly book that is “offered for sale” for use in academic and related settings a non-commercial work, as held by the Second Circuit, or a commercial work, as held by the Ninth Circuit? (2) For purposes of the second fair use factor, is a work’s level of creativity a distinct inquiry from whether that work is sufficiently original to be copyrightable, as held by the Fifth and Eleventh Circuits, or is a work that meets the threshold for ii copyrightability automatically considered creative, as held by the Ninth Circuit? (3) Where a_ representational photograph is reproduced in its entirety because a_ partial photograph would not be a useful depiction of its subject, is the third fair use factor neutral, as held by the First, Second, Seventh, and Eleventh Circuits, or does it weigh against fair use, as held by the Ninth Circuit?