Full opinion text
OPINION SIMANDLE, District Judge. TABLE OF CONTENTS I.BACKGROUND.547 II. DISCUSSION.553 A. Summary Judgment Standard.553 B. Defendant’s Copyright Claims.554 1. Copyright Infringement.554 2. Estoppel .555 3. Registration of Copyright.555 4. Copyright Misuse Defense.557 5. Implied License.558 6. Database as Derivative Work...■.559 C. Plaintiffs Declaratory Judgment Claims .559 1. Copyright Clause.559 2. Fair Use Defense.560 a. Purpose and Character of Use.561 b. Nature of the Copyrighted Work.563 c. Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole.563 d. Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work.565 e. Conclusion.566 D. Finding of Copyright Infringement.566 E. Breach of Contract Counterclaim.566 F. Trademark Claims .569 1. Damages Under § 1125(a).574 2. State Unfair Competition Claim.575 G. State Claims for Conversion and Replevin.576 III. CONCLUSION. .576 This case arises out of plaintiff Video Pipeline’s use of defendant Buena Vista Home Entertainment’s motion picture trailers on the internet, and plaintiffs creation of its own clip previews from defendant’s movies, which it streamed to interested customers online. This matter comes before the Court upon plaintiff Video Pipeline’s motion for summary-judgment on its two counts seeking a declaratory judgment that its actions do not constitute copyright infringement, and on defendant/counterclaim-plaintiffs amended counterclaims. Defendant/counterclaim-plaintiff Buena Vista Home Entertainment also moves for summary judgment on its amended counterclaims brought under the Lanham Act and state law, and partial summary judgment on its federal copyright infringement counterclaim, only with respect to plaintiffs conduct post-December 2000. For the reasons stated below, plaintiffs motion for summary judgment on its declaratory judgment action will be denied, and its motion for summary judgment on defendant’s amended counterclaims will also be denied. Defendant’s motion for summary judgment on its amended counterclaims will be granted, and plaintiff will be ordered to return all in-store trailers it received from defendant during 1993 to 2000. I. BACKGROUND Plaintiff Video Pipeline compiles and organizes movie studios’ promotional previews (“trailers”), which are used to promote the sales and rentals of home videos. (Pl.’s Answer to Interrogatory, Pl.’s Ex. C, at No. 4; Disney’s Responses to Requests for Admission, Pl.’s Ex. D, at Nos. 2, 4.) Defendant Buena Vista Home Entertainment (“BVHE”) is a wholly-owned subsidiary of The Walt Disney Company (“TWDC”), and produces, distributes, and sells home video versions of Disney’s copyrighted motion pictures and other entertainment content, including content under the “Buena Vista” name. (McQueen Cert., Def.’s App. Ex. D, ¶¶ 1-2.) TWDC, through another indirect, wholly-owned subsidiary Walt Disney Pictures and Television (“WDPT”), produces and acquires copyrighted motion pictures and other entertainment content under the “Touchstone Pictures,” “Hollywood Pictures,” “Walt Disney Pictures,” and “Walt Disney Television” labels. (BVHE Vice President for Business and Legal Affairs Kristin McQueen Cert., Defs.’ App. Ex. D, ¶¶ 1, 2.) Through another indirect, wholly-owned subsidiary Miramax, TWDC produces and acquires copyrighted motion pictures that are distributed under the names “Miramax Films” and “Dimension Films.” (McQueen Cert. Defs.’ App. Ex. D, ¶ 3.) BVHE is the exclusive licensee of WDPT in the home video market, and is the exclusive domestic distributor for Miramax in the home video market. (McQueen Cert., Def.’s App. Ex. D, ¶¶ 2, 3.) (“Disney” hereinafter refers to The Walt Disney Company and its various subsidiaries, including BVHE and Miramax.) Since 1985, plaintiff has been in the business of aggregating trailers and other promotional material obtained from entertainment companies, including Universal, Warner Bros., Twentieth Century Fox, and BVHE and Miramax, into preview programs in videotape format to promote the sales and rentals of their home video products. (Horovitz Aff., PL’s App. Ex. E, ¶ 5.) Since 1985, plaintiff has had agreements with more than 2,000 home video wholesalers and retailers to provide them with compiled promotional previews to be shown by the retailers instore, at the point-of-sale. (Id. ¶ 8.) During the first few years, plaintiff had to edit the material it was sent because it contained sales and marketing information not intended for home video customers, and because the content may have been inappropriate for the particular store or neighborhood. (Id. ¶ 6.) In other cases, plaintiff had to combine clips to create previews when it was sent clips or just copies of the entire movie. (Id.) Since 1985, plaintiff has organized trailers from different studios and provided more than 1.1 million trailers on videotape to over 2,000 home video distributors and retailers promoting home video sales and rentals. (Horovitz Aff., Pl.’s App. Ex. E, ¶¶ 8-9; PL’s Answer to Interrogatory, PL’s Ex. C, at No. 4.) In 1988, plaintiff entered into a contract with BVHE, called the “Master Clip License Agreement,” in which BVHE granted plaintiff permission to use certain trailers as part of plaintiff’s videotape preview compilations, displayed in stores to promote home video rentals or sales. (Disney’s Answer, ¶ 7; Master Clip License Agreement, PL’s App. Ex. I; Defs.’ App. Ex. K, Tab 50.) The Master Clip License Agreement provided for BVHE to provide plaintiff, the licensee, with trailers to be shown in a manner designated by Disney “from time to time”: This letter constitutes an agreement between Buena Vista Home Video (“Disney”) and Video Pipeline, Inc. (“Licensee”) in connection with Disney’s grant to Licensee of permission to use certain three-quarter inch (8/4") broadcast quality videotape masters of certain clips as shall be designated by Disney from time to time (the “Videos”) in connection with the preview tapes to be created for such uses as Disney shall designate from time to time (the “Programs”), upon the terms and conditions set forth herein: Subject to the terms and conditions provided herein, Disney hereby delivers the Videos to Licensee and grants to Licensee the non-exclusive right to exhibit the Videos (i.e., the clips contained on the above referenced masters) on the Programs and for no other purpose. Licensee is expressly prohibited from selling the Videos to any third party or from exhibiting it in any manner other than as provided herein. The term of this Agreement will commence as of the date hereof and end upon the Licensee’s completion of the Programs. Licensee is expressly prohibited from editing, modifying or otherwise altering the Videos; provided, however, the Licensee may exhibit the Videos in its entirety or in excerpts thereof. Licensee will return the videos to Disney, at Licensee’s sole expense, immediately upon Disney’s request therefor. (Master Clip License Agreement, PL’s App. Ex. I; Defs.’ App. Ex. K, Tab 50.) From 1988 to 1993, plaintiff would typically send a form request letter to BVHE for trailers for specific home releases to be incorporated into a particular videotape compilation for in-store exhibition, and BVHE would respond by sending the requested trailers and a confirmation letter indicating its authorization to plaintiff to use the three-quarter inch broadcast quality videotape masters of trailers of certain motion pictures. (Video Pipeline Distribution/Production Manager Anne Green Dep. Tr., Defs.’ App. Ex. H, at 38-40; BVHE Designation Letters, PL’s App. Ex. J.) The parties agreed that the trailers would be used in store locations, for example, as confirmed by a letter from Richard Lesse: This letter confirms our approval for usage of the following trailers for your special in-store preview program featuring the winners of this year’s Homer Awards. (R. Lesse Designation Letter, Pl.’s App. Ex. J, at VP707 (emphasis added),) and a letter by BVHE Credits and Contract Administrator Joan Spiga: These trailers are provided to Licensee by Disney in connection with a preview tape program for SUNCOAST, pursuant to the terms and conditions set forth in that certain Master Clip Agreement entered into between Disney and Licensee dated as of November 7,1988. (Designation Letter by Spiga, PL’s App. Ex. J, at VP702.) Apparently because BVHE was backed up on paperwork regarding the trailer provisions, BVHE no longer provided plaintiff with these designation letters after February 1998. (McQueen Dep. Tr., Pl.’s App. Ex. L, at 33-34.) Plaintiff nevertheless continued its practice of requesting trailers from BVHE by letter, which were to be reviewed by BVHE’s legal department. (Green Letter, 3/23/94, Defs.’ App. Ex. K, Tab 52; Horovitz Dep. Tr., Defs.’ App. Ex. F, at 33-34; McQueen Dep. Tr., Pl.’s App. Ex. L, at 33.) BVHE would often send plaintiff the entire sales-force reel because it was easier than getting the specific trailers requested. (Green Dep. Tr. 2/6/02, Pl.’s SuppApp. Ex. S, at 40.) Beginning in approximately 1995, home video retailers began using the internet as a means of marketing home video products. (Horovitz Aff., Pl.’s App. Ex. E, ¶ 5.) Trailers have become more than advertising material for other products; they have become valuable entertainment content in their own right, as web surfers continually frequent the internet to view these online commodities prior to movie releases, (Article, 3/22/02, Defs.’ App. Ex. M), and such previews increase web site traffic and online “stickiness,” which give web site owners additional time and opportunities to market their services and products. (Darner Email, 5/16/00, Defs.’ App. Ex. L.) As stated by netflix.com, “With us, as with many websites, our objectives reach beyond simple ‘sales.’ In addition to renting movies, we are always interested in increasing site traffic and site ‘stickiness.’ ” (Id.) Due to site “stickiness,” advertisements by the web site owner and third parties that are shown simultaneously provide multiple opportunities for internet customers to buy other products at the click of a button. (Disney Advertisements, Defs.’ App. Exs. N, O, P, Q.) In 1997, plaintiff notified various entertainment companies, including Miramax and BVHE, that it was beginning the process of making the trailers available to home video retailers’ web sites by means of an internet service called “VideoPipe-line.net.” (Horovitz Aff., PL’s App. Ex. E, ¶ 17.) In or around 1998, plaintiff created an online database, located at VideoDetec-tive.com, which organized information and still photographs from the various previews to promote home video sales and rentals on the internet. (Robert Kolo Dep. Tr., Defs.’ Ex. J, at 24.) The content of this VideoDetective.com web site changed to movie data and previews in 2000. (Id. at 25.) In the latter part of 1999, plaintiffs “VideoPipeline.net” became operative, and began “streaming” trailers over the internet, accessible upon request of a customer via a “shop now” button found on retail web sites. (Horo-vitz Aff. ¶¶ 17, 20, 21; Kolo Dep. Tr., Defs.’ Ex. J, at 23-26.) This function allowed a consumer accessing Video Pipeline’s website, as well as the sites of other clients who created links to Video Pipeline’s website, to view an individual trailer, which is streamed from VideoPipeline.net to that website upon the consumer’s request. (Horovitz Aff. ¶ 21; Kolo Dep. Tr., Defs.’ Ex. J, at 23-26.) Thus, Video Pipeline converted defendant’s in-store trailers from three-quarter inch broadcast quality videotape into digital form, and made them available for the public on its websites, and on the websites of subscribers of its trailer streaming service. (Horovitz Dep. Tr., Defs.’ App. Ex. G, at 30-33; Canter Dep. Tr., Defs.’ App. Ex. I, at 43; Defs.’ App. Ex. K, Tab 37.) Plaintiff had agreements with approximately 25 home video distributors and retailers, such as Netflix, TLA, IMDB/Amazon, CDNow, Movie Gallery, and Best Buy, to provide their customers with the opportunity to view the previews prior to renting or buying the home videos. (Horovitz Aff., Pl.’s App. Ex. D, ¶ 23.) In its trailer streaming service, plaintiff charged web site operators a direct fee on a “per-megabyte streamed” basis, generally between 2 cents to 12 cents per megabyte, linking and streaming trailers to a subscriber’s website for viewing by internet customers.. (Kolo Dep. Tr., Defs.’ App. Ex. J, at 149-50.) In other cases, Video Pipeline charged nothing, as it did with its own web sites, or provided streaming services in exchange for exposure of its internet brands on the websites of those same operators. (Kolo Dep. Tr., Defs.’ App. Ex. J, at 150-59, 182.) Plaintiff provided online streaming services to both retailers and non-retailers, including imdb.com and windowsmedia.com, which used the services as entertainment and informational content. (Kolo Dep. Tr., Defs.’ App. Ex. J, at 151-53, 168; Pl.’s Customer Usage Data, Defs.’ App. Ex. X.) In the year 2000, plaintiff generated revenues of approximately $300,000, as a result of its trailer streaming services. (Horovitz Dep. Tr., Defs.’ App. Ex. G, at 29.) For the first nine months of 2001, plaintiff generated revenues of approximately $370,000 for those services. (Horovitz Dep. Tr., Defs.’ App. Ex. G, at 30.) Plaintiff contacted Disney in 1998 regarding these internet services on its “trade website,” and was referred to Donna Edwards, an employee involved with online marketing of Disney’s titles. (Green Dep. Tr. 2/6/02, Pl.’s Supp.App. Ex. S, at 73-77.) Plaintiff, who made 10-20 such presentations to various movie studios and production companies, was offering two options to companies regarding internet streaming: (1) the company could pay for “premium placement” on plaintiffs internet services, including providing information to retailers prior to a full-length video’s release to the public, or (2) the company could continue sending trailers to plaintiff, which would incorporate them for use on the internet at no charge to the company, after the full-length video was released for retail sale and rental. (Green Dep. Tr., Pl.’s Supp.App. Ex. S, at 80-81.) Disney never specifically agreed to provide materials for the trade website. (Id at 77.) Video Pipeline President Jed Horo-vitz testified that after making a presentation to Disney employee Sarita Bhargava at the East Coast video show in Atlantic City, “I made it explicitly clear that if they continued to send stuff to us, we would continue to do the minimum, which is put it on the instore reels and put it on the Internet at no charge.” (Horovitz Dep. Tr., Pl.’s Supp.App. Ex. R, at 98.) From 1998 to 2000, Video Pipeline’s Green continued to press the “premium placement” option on Disney by speaking to BVHE’s Assistant Production Manager Adrienne Pettijohn in several telephone conversations. (Green Dep. Tr., Pl.’s SuppApp. Ex. S, at 87.) In the meantime, however, Miramax employee Ian Schafer, in anticipation of an online chat with film director Roland Joffe, contacted plaintiff to provide links to trailers of Joffe’s movies, which would be accessible during, before, or after the chat. (Schafer Dep. Tr., Pl.’s App. Ex. 0, at 58-68.) In September 2000, Green made another telephone call to Pettijohn at Disney, who informed Green that “due to a policy change, they weren’t going to be allowing the trailers online anymore.” (Green Dep. Tr., PL’s Supp-App. Ex. S, at 115.) On September 6, 2000, plaintiff and defendants came to an agreement expressly stipulating that plaintiff could display certain Disney trailers for in-store use only, not on the internet. (Green Dep. Tr., Defs.’ App. Ex. H, at 117-18; Pettijohn Letter, Defs.’ App. Ex. K, Tab 76.) Disney’s attorneys also contacted plaintiff, advising that it did not have permission to use the in-store trailers on the internet, that the trailers were not cleared for online use, and demanding that plaintiff stop streaming trailers for home video retailers. (Horovitz Aff. ¶¶ 27-28; Defs.’ Ex. J, at 329; McQueen Email, 9/13/00, Defs.’ App. Ex. U.) Disney again wrote on September 21, 2000, advising plaintiff that it was not authorized to display or distribute the in-store trailers via the internet, that such use may constitute copyright infringement, and requesting assurance that plaintiff would cease all such unauthorized uses by September 28, 2000. (Ruhland Letter, 9/21/00, Defs.’ App. Ex. BB.) In October 2000, plaintiff filed this action seeking a declaratory judgment that its use of Disney trailers to promote home videos did not violate defendant’s rights. (Compl.) Disney subsequently wrote to plaintiff a third time on November 29, 2000, advising plaintiff that BVHE was terminating its rights, authorization and permission to use the in-store trailers under the Master Clip License Agreement, and demanding that plaintiff return all the trailers subject to that agreement. (Disney Letter, 11/29/00, Defs.’ App. Ex. CC.) Plaintiff complied with this request and returned the 95 trailers which Disney had designated were subject to the Agreement. (Horovitz Aff. ¶ 29.) After returning these trailers, plaintiff obtained home videos from retailers and created promotional clip previews (“clip previews”) for 62 home videos that Disney had demanded plaintiff return. (Horovitz Aff. ¶ 30.) Each clip preview was less than 2 minutes long in duration, briefly displaying the Disney logo at the beginning of the video, identifying Disney as the copyright holder, and displaying the home video’s title at the beginning and end. (Horovitz Aff. ¶ 31.) Each clip preview contained approximately 2 or 3 scenes from the first half of the home video, which plaintiff maintains contains sufficient information to communicate to the public the essence of the movie. (Horovitz Aff. ¶ 32.) Video Pipeline streamed the trailers and clip previews to a website it owned, Videodetee-tive.com, allowing consumers to view the clip preview at the click of a button when browsing through the list of movie titles on this website. (Horovitz Aff. ¶ 20.) Although told to discontinue use of Disney’s trailers online, plaintiff allegedly also engaged in copying authentic trailers from BVHE home video releases on which they appeared, using approximately 34 trailers in its online internet streaming business. (Canter Dep. Tr., Defs.’ App. Ex. I, at 130-32, 161-62, 164-72; Defs.’ App. Ex. K, Tabs 6-8, 11-16; List of Disney Trailers, Defs.’ App. Ex. C.) These emails between Video Pipeline employees Anne Green and Mitch Canter in November 2000 indicate that they actively rented Disney movies to locate certain Disney previews that might be found at the beginning of rented movies. (Id.) For example, Canter wrote, “I’m planning on renting Gone in 60 Seconds from Touchstone on the chance I’ll find a title we need.” (Canter Email, 11/28/00, Def.’s App. Ex. K, Tab 14.) Plaintiff in its Amended Complaint seeks, in Count One, a determination under the Declaratory Judgment Act that, from February 9, 1993 to September 13, 2000, its use on Video Pipeline.com of the Promotional Previews provided by Disney does not infringe any copyright or violate any rights of defendant. (Amended Compl. ¶ 37.) In Count Two, plaintiff seeks a declaratory judgment that its creation and display of the Video Pipeline Previews for use by home video distributors and retailers to promote the sales or rentals of home video products at the point-of-sale does not infringe any copyright or violate any right of defendant and that such creation and display constitutes fair use. (Id. ¶ 49.) In 2002, this Court preliminarily enjoined plaintiff from streaming the 62 clip previews or from making any more clip previews of Disney home videos. (Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc., 192 F.Supp.2d 321 (D.N.J.2002).) After plaintiff amended its complaint to include the clip previews, (Pl.’s Suppl. & Amended Compl., Pl.’s Ex. A), Disney counterclaimed against plaintiff, alleging copyright infringement with respect to the Disney trailers (Count One), copyright infringement with respect to plaintiffs clip previews (Count Two), federal unfair competition/false designation under the Lanham Act (Count Three), and state law claims for unfair competition (Count Four), breach of contract (Count Five), unjust enrichment (Count Six), conversion (Count Seven), and replevin (Count Eight). (Disney’s Answer to Suppl. & Amended Compl. & Amended Counterclaims, PL’s Ex. B.) This Court dismissed defendant’s counterclaim for unjust enrichment in its July 26, 2002 Opinion. (Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc., 210 F.Supp.2d 552 (D.N.J.2002).) Plaintiff brings this motion for summary judgment on Counts I and II of its Amended Complaint seeking a declaratory judgment that its copying of Disney’s copyrighted works does not constitute copyright infringement and that it constitutes fair use. In addition, plaintiff also moves for summary judgment against BVHE and Miramax on Counts I through VI of BVHE and Miramax’s Amended Counterclaims, that is, copyright infringement, federal trademark infringement and state law claims for breach of contract, and unfair competition. Defendant also moves for summary judgment on its claims for copyright infringement with respect to post-December 2000 conduct, Lanham Act violations, and state law claims. II. DISCUSSION Plaintiff Video Pipeline moves for summary judgment on its declaratory judgment claims on the ground that its use of its clip previews and of Disney’s trailers is consistent with the fair use statute and is consistent with copyright law’s policy to promote learning and disseminate information. In addition, plaintiff moves for summary judgment on defendant Disney’s copyright infringement claim relating to Disney’s trailers, arguing that its use of the trailers is fair use, and that Disney is misusing its copyright and has not registered the trailers. Furthermore, plaintiff argues that it did not breach the 1988 Master Clip License Agreement with BVHE, that the trademark claim for money damages fails because there was no actual consumer confusion, and the unfair competition claim also fails because plaintiff does not compete with defendants and in fact promotes the home video sales and rentals of defendant’s movies. Defendant and counterclaim-plaintiff BVHE moves for partial summary judgment on its copyright infringement, Lan-ham Act, and state law claims. Defendant argues that plaintiffs digitization and internet streaming of the in-store trailers, the clip previews and copying of Disney trailers occurring post-December 2000 constitute copyright infringement, and that it is entitled to summary judgement on its breach of contract, state unfair competition, replevin and conversion claims. A. Summary Judgment Standard A court may grant summary judgment when the materials of record “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir.1988). A dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir.1996). Once the moving party has carried its initial burden of establishing the absence of a genuine issue of material fact, the non-moving party must do more than rely only “upon bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.1985), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985) (citation omitted). If the non-movant’s evidence is merely “colorable” or is “not significantly probative,” the court may grant summary judgment. Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505. B. Defendant’s Copyright Claims 1. Copyright Infringement Defendant moves for summary judgment on its copyright infringement claims with respect to plaintiffs conduct occurring on or after December 1, 2000, regarding its use of the in-store trailers, the clip previews, and the subsequently copied Disney trailers. See Def.’s Br. at 20. Copyright infringement under § 106 of the Copyright Act, 17 U.S.C. § 106, is established when a party establishes two elements: (1) it owns the copyrighted material; and (2) the alleged infringer has engaged in unauthorized copying within the meaning of § 106 of the Copyright Act. See Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 290 (3d Cir.), cert. denied, 502 U.S. 939, 112 S.Ct. 373, 116 L.Ed.2d 324 (1991) (citations omitted). Under § 106 of the Copyright Act, unauthorized “copying” means to violate any of the five exclusive rights reserved to copyright owners: (1) the right to reproduce the copyrighted work, (2) the right to prepare works derived from the original copyrighted work, (3) the right to distribute copies of the work, (4) the right to perform the work, and (5) the right to display the work. 17 U.S.C. § 106. In this case, plaintiff does not dispute the first element, that BVHE owns the copyrighted motion pictures, from which Disney’s promotional trailers for in-store use, the trailers which plaintiff copied, and Video Pipeline’s clip previews were created. See also McQueen Cert. ¶ 21 & Ex. P. Here, under the second element, plaintiff also concedes that “[t]he Trailers created and distributed by Disney are derivative works under § 106(2).” Pl.’s Sum. J. Br. at 28 (citing Lamb v. Starks, 949 F.Supp. 753, 756 (N.D.Cal.1996)). With respect to the clip previews created by plaintiff, this Court previously held that, in the context of the preliminary injunction motion, these clip previews also constitute derivative works, public performances, and public displays under § 106. See Video Pipeline, 192 F.Supp.2d at 330-32. The Court must address whether creating digital copies of defendant’s trailers of its copyrighted motion pictures for streaming on the internet, which plaintiff engaged in after defendant informed it that online streaming of the in-store trailers was unauthorized, also violates the copyright owner’s rights under § 106. Much like the trailers copied in Lamb v. Starks, supra, the copying of the Disney trailers, which plaintiff obtained in part by renting home videos, also infringes upon the copyright holder’s right to prepare derivative works under § 106(2). See Lamb v. Starks, 949 F.Supp. at 756 (holding that copying of plaintiffs trailer of copyrighted movie infringed on right to prepare derivative works); see also Perry v. Sonic Graphic Sys., Inc., 94 F.Supp.2d 616, 621 (E.D.Pa.2000) (holding that defendant’s use of plaintiffs photographs on web site without permission infringed on copyright owner’s right under § 106(l)-(3)). In addition, where defendant’s partial summary judgment motion as to its copyright infringement claims relate only to the period after December 1, 2000, there is evidence that plaintiff conducted the streaming of its clip previews from November 3, 2000 to March 2002, when this Court granted defendant’s preliminary injunction motion with respect to such use. See also McQueen Cert., Defs.’ App. Ex. D, ¶ 10. The record also indicates that plaintiffs digital copying of 34 of defendant’s trailers occurred during this same time period. Defendant thus establishes a prima facie case of copyright infringement. 2. Estoppel Defendant contends that estoppel provides no defense to plaintiffs copying of the in-store trailers. Plaintiff claims that defendant is equitably estopped from asserting copyright infringement of the in-store trailers on grounds that defendant implicitly authorized digitization and internet streaming of them. For estoppel to apply, an alleged infringer must show that the copyright owner was aware of the infringing conduct and yet acted in a way that induced the infringer to reasonably rely upon such action to his detriment. Ty v. West Highland Publishing, Inc., Highview Recording, LLC, No. 98 C 4091, 1998 WL 698922, *10-11 (N.D.Ill. Oct.5, 1998); see also Serv. & Training, Inc. v. Data Gen. Corp., 963 F.2d 680, 690 (4th Cir.1992) (“To avail themselves of an estoppel defense, however, appellants must show that Data General (1) misrepresented or concealed material facts, (2) intended or expected that appellants would act upon those misrepresentations or concealments, and (3) had actual or constructive knowledge of the true facts.”) (citation omitted). Plaintiff fails to make the requisite showing in this case. Plaintiff contacted Disney in 1998 regarding their internet services on its “trade website,” and was referred to Donna Edwards, an employee involved with online marketing of Disney’s titles. Green Dep. Tr. 2/6/02, PL’s Supp. App. Ex. S, at 73-77. The record shows that certain employees of defendant, including Donna Edwards and Sarita Bhar-gava, had discussions with Green regarding making the Disney trailers available on the internet, but Disney never specifically agreed to provide materials for plaintiffs proposed trade website. Id. In addition, the culmination of the discussions resulted in defendant informing plaintiff that it was not interested in plaintiffs internet projects, and that defendant was exploring its own internet strategies. Horovitz Dep. Tr., Defs.’ App. Ex. F, at 127-28; Green Dep. Tr., Defs.’ App. Ex. H, at 79-85. Indeed, plaintiff also never requested or informed defendant that it intended to digitize and stream all Disney trailers. There is no indication that defendant knew that the streaming of its products was occurring, let alone that it gave its approval of such conduct, thereby allowing plaintiff to continue with its internet activities relying upon such acquiescence. The record demonstrates that a lower-level employee of defendant contacted plaintiff to provide access to the trailer streaming for an online chat with a film director. However, to the extent that defendant seeks summary judgment of its copyright infringement claims, this motion is brought only as to plaintiffs post-December 2000 conduct. Defs.’ Br. Sum. J. Copyright, at 20. By that time, after defendant made several communications to plaintiff demanding that it cease streaming of defendant’s in-store trailers online, there could have been no possible confusion as to defendant’s intentions. With respect to post-2000 December conduct, no reasonable fact finder could find the requisite elements for estoppel, and plaintiff is therefore not entitled to its defense as a matter of law. 3. Registration of Copyright Plaintiff moves for summary judgment as to Disney’s copyright infringement claim relating to Disney’s trailers on the ground that Disney has not registered its trailers and this Court therefore lacks jurisdiction over such claim. Plaintiff contends that before filing a copyright infringement suit based on those derivative works, Disney must first have formally registered the trailers with the United States Copyright Office, citing to 17 U.S.C. § 411(a), and the Sixth Circuit’s decision in Murray Hill Publ’ns, Inc. v. ABC Communications, Inc., 264 F.3d 622, 630 (6th Cir.2001). Section 411(a) provides that Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title. 17 U.S.C. § 411(a). Registration is a prerequisite to filing a copyright infringement suit, with very limited exceptions. Murray Hill, 264 F.3d at 630 (citing 17 U.S.C. § 411(a); M.G.B. Homes, Inc. v. Ameron Homes Inc., 903 F.2d 1486, 1488 (11th Cir.1990)). In Murray Hill, plaintiff brought a copyright infringement claim for a song it allowed a radio personality to use as the theme for a morning radio show. The song was a re-recorded version, with added lyrics, of plaintiffs copyrighted composition. The Sixth Circuit affirmed the district court’s dismissal of the action for lack of jurisdiction over the copyright infringement claim with respect to the song, which was not registered with the copyright office. However, the Sixth Circuit recognized that the claim of infringement based on the underlying registered work had been waived because plaintiff had granted a license to defendant by implication. Unlike Murray Hill, where the copyright claim was based on infringement of the unregistered derivative work, defendant’s counterclaims here pertains, rather, to the alleged infringement of not just the trailers themselves, but also the underlying copyrighted and registered motion pictures. See Amended Counterclaims, ¶¶ 35-37. The basis of defendant’s infringement counterclaim relating to its trailers is that plaintiff copied Disney’s trailers which themselves are composed entirely from Disney’s registered motion pictures. See Defs.’ App. Ex. A. Registration of the underlying copyrighted work is sufficient to sustain a copyright infringement action pertaining to the derivative works, in this case, the in-store trailers. See, e.g., Well-Made Toy Mfg. Corp. v. Goffa Int’l Corp., No. 98-CV-7964, 2002 WL 1455180, *4-7 (E.D.N.Y. June 26, 2002) (copyright owner’s failure to register derivative 48-inch doll did not affect owner’s right to sue on basis of 20-inch version), Mattel, Inc. v. Robarb’s, Inc., 139 F.Supp.2d 487, 497-98 (S.D.N.Y.2001) (defendant’s copy of plaintiffs unregistered derivative work infringed on plaintiffs copyright in registered work, elements of which were included in plaintiffs derivative work and infringing work). In Well-Made Toy, the district court stated: By definition, a derivative work contains elements of underlying works that themselves may be subject to copyright; the copyright in the derivative work extends only to those elements original to the derivative work. It follows that where the preexisting works is registered, but the derivative work is not, a suit for infringement may be maintained as to any preexisting work, but not as to any element original to the unregistered derivative work. Well-Made Toy, 2002 WL 1455180, at *6 (citing Mattel, 139 F.Supp.2d at 496, 498; 2 Nimmer § 7.16[B][2] at 7-165) (emphasis in original). In this case, where all of the allegedly infringing work is taken entirely from the copyrighted, registered work, the infringement counterclaim is maintainable. Even if the allegedly infringing works were taken from the trailers themselves, all of the trailers contain work directly excerpted from the copyrighted works, and thus include no original element that would preclude the viability of defendant’s infringement counterclaim. Defendant’s copyright infringement counterclaims, to the extent they are based on the underlying registered and copyrighted materials, are thus maintainable. Lamb v. Starks supports this conclusion. As discussed above, defendants in that case had copied the trailers of plaintiffs copyrighted motion picture, and compiled the trailers with other trailers on a compilation video tape. The district court determined that plaintiff had established a pri-ma facie case of copyright infringement with respect to the copyrighted movie, and denied defendant’s motion for summary judgment. The court notably rejected defendant’s argument that there could be no infringement on the basis that the trailer itself was not copyrighted, stating that the motion picture from which the trailer was derived is copyrighted. Under the cases cited above, plaintiffs argument fails. Contrary to plaintiffs assertion, the Sixth Circuit’s decision in Murray Hill provides no support that jurisdiction is lacking over a copyright infringement action which is based on the underlying copyrighted and registered work. Plaintiffs motion for summary judgment on the ground that this Court lacks jurisdiction over defendant’s copyright infringement claim relating to trailers will therefore be denied. 4. Copyright Misuse Defense Plaintiff moves for summary judgment on defendant’s copyright claims on the ground that Disney is misusing its copyright, under the copyright misuse doctrine, because it seeks to control information available to the public, contrary to the purpose of the Copyright Act, citing to Lasercomb America, Inc. v. Reynolds, 911 F.2d 970, 976-77 (4th Cir.1990) and Practice Mgmt. Info. Corp. v. American Med. Ass’n, 121 F.3d 516, 520 (9th Cir.1997). The defense of copyright misuse “forbids the use of the copyright to secure an exclusive right or limited monopoly not granted by the Copyright Office and which it is contrary to public policy to grant.” Lasercomb, 911 F.2d at 977 (citing Morton Salt Co. v. G.S. Suppiger, 314 U.S. 488, 492, 62 S.Ct. 402, 86 L.Ed. 363 (1942)). Copyright misuse does not invalidate a copyright, but precludes its enforcement during the period of misuse. Practice Mgmt., 121 F.3d at 520 (citing Lasercomb, 911 F.2d at 979 n. 22). In both Lasercomb and Practice Management, the copyright owner engaged in copyright misuse because it attempted to extend its monopoly beyond the scope of the copyright laws in an anticompetitive manner. For example, in Lasercomb, a manufacturer of steel- rule dies had included clauses in its standard licensing agreement which prevented the licensee from attempting to develop software that had the same utility as that provided by the licensed software. The Practice Management case likewise involves the American Medical Association requiring its licensees of its medical procedures coding system to not use any competing coding systems. Unlike Practice Management and Las-ercomb, plaintiff is not arguing that defendant precluded its licensees from using the products of its competitors or from creating their own products that could compete with those of defendant. Nor is there any allegation that Disney required its licensees to carry and sell its products to the exclusion of others. With respect to movie trailers, defendant has not required authorized users of its trailers to forego the use of trailers for competing products. In this case, defendant provided authentic trailers to plaintiff during their contractual relationship free of any anticompetitive restrictions, for the express purpose of being compiled with trailers of Disney’s competitors for display in retailers’ stores. Here, plaintiff essentially argues that persons not a party to defendant’s licensing agreement should be entitled to use material from defendant’s copyrighted products for their advertising. Although plaintiff cites to the fact that Disney allows only the companies it licenses to use its trailers, requiring that the trailers may not be used in ways that are derogatory or critical of the entertainment industry, BVHE and its officers, divisions, and subsidiaries, and the materials from which the trailers were taken or of any person involved with the production of the motion picture, see Pl.’s Sum. J. Br. at 27, there is no evidence that Disney included anti-competitive clauses in its licensing agreements. Neither Lasercomb nor Practice Management stand for plaintiffs position. As described in those cases, the copyright misuse doctrine is appropriate where the copyright holder attempts to preclude its licensee, via clauses of their licensing agreement, from using or creating products that could compete with the copyrighted work. That doctrine is inapplicable here, where no such anti-competitive clauses are at issue. Plaintiffs attempt to invoke the copyright misuse defense thus fails, and it is therefore not entitled to the copyright misuse defense. The merit of plaintiffs alternative theory for the alleged lawful use of defendant’s copyrighted works, including the fair use defense, will be discussed below. 5. Implied License Plaintiff additionally argues that BVHE, by providing the trailers to plaintiff without restriction, created an implied license for plaintiff to use the trailers consistent with the purpose for which they were provided, that is, promoting the full-length home videos at the point-of-sale. Under the Copyright Act, the owner of a copyright can transfer ownership of the copyright by selling it or by exclusively licensing it. MacLean Assocs., Inc. v. William M. Mercer-Meidinger-Hansen, Inc., 952 F.2d 769, 778 (3d Cir.1991) (citing 17 U.S.C. § 101). Exclusive licenses, however, must be in writing. MacLean, 952 F.2d at 778 (citing 17 U.S.C. § 204(a); Effects Assocs. v. Cohen, 908 F.2d 555, 556 (9th Cir.1990), cert. denied, 498 U.S. 1103, 111 S.Ct. 1003, 112 L.Ed.2d 1086 (1991)). A nonexclusive license may arise by implication where the creator of a work at a defendant’s request “hand[sj it over, intending that defendant copy and distribute it.” Effects Assocs., 908 F.2d at 558. The facts in this case demonstrate that defendant provided plaintiff with trailers without the usual designation letter, outlining the terms of the trailers’ use, for a period of time after 1993. This occurred as a result of a back-up in paperwork regarding the use of these trailers. See McQueen Dep. Tr., Pl.’s App. Ex. L, at 33-34. To the extent that defendant’s partial summary judgment motion as to its copyright infringement claims is made with respect to plaintiffs streaming of the in-store trailers, the clip previews, and the copied Disney trailers posh-December 2000, by which point plaintiff was informed that streaming of such trailers or previews online was unauthorized, there can be no finding that defendant created an implied license for plaintiff to continue such use. The record demonstrates that in fall 2000, defendant made several communications to plaintiff, informing it that its use of the Disney trailers on the internet was unauthorized, and demanding plaintiff to discontinue all such unauthorized uses. See McQueen Cert.,- Defs.’ App. Ex. D, ¶ 5. Furthermore, defendant had terminated the parties’ Master Clip License Agreement in November 2000, and demanded that plaintiff return all trailers subject to that Agreement. Horovitz Aff., Defs.’ App. Ex. ¶ 29. To the extent that defendant’s partial summary judgment motion as to its copyright infringement claims relate only to plaintiffs actions post-December 2000, by which time the parties’ Master Clip License Agreement had terminated and defendant had demanded all of its in-store trailers back, plaintiffs argument that defendant had created an implied license allowing it to use plaintiffs trailers on the internet has no merit. 6. Database as Derivative Work Although plaintiff conceded that the trailers provided by Disney constitute derivative works under § 106 of the Copyright Act, it nevertheless argues that plaintiffs database of clip previews and trailers does not constitute a derivative work, citing to Ty, Inc. v. Publ’ns Int’l Ltd., 292 F.3d 512 (7th Cir.2002). In Ty, the Seventh Circuit considered whether a company which published a series of books using photographs of copyrighted Beanie Babies was entitled to a trial on its defense of fair use. The Seventh Circuit, after consideration of the factors mentioned above, reversed the summary judgment decision, and remanded to the district court. The photographs, themselves considered derivative works of the copyrighted work, were used in a series of collector’s guides on Beanie Babies, and the Seventh Circuit determined that such books may constitute complements of, rather than substitutes for, the copyrighted material. Plaintiffs attempt to liken its database of clip previews to the “collector’s guide” in Ty is unavailing, as the database in this case in no way resembles a distinct and separate product that complements the copyrighted materials, as the district court in Ty deemed the collector’s guide. Furthermore, the database in this case is merely a name for the collection of clip previews and trailers, each of which are derivative works of the copyrighted materials, which plaintiff aggregates, in theory, online. Although the court in Ty stated that collector’s guides without photographs “would sink like a stone in the marketplace,” plaintiff in this case is not seeking use of merely the still photographic images of the copyrighted movies. Were it to do so, its argument would hold more force. Plaintiffs argument therefore fails. C. Plaintiffs Declaratory Judgment Claims 1. Copyright Clause Plaintiff moves for summary judgment on its declaratory judgment counts, stating that its use of the clip previews is ineonsis-tent with both the purpose and basic conditions for copyright contained in the Constitution’s copyright clause. Under the Constitution, “[t]he Congress shall have power ... [t]o Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const, art. 1, § 8, cl. 8. The Supreme Court has stated that the Copyright Clause is “ ‘both a grant of power and a limitation.’ ” Eldred v. Ashcroft, 537 U.S. 186, 123 S.Ct. 769, 154 L.Ed.2d 683, (2003) (holding that Copyright Term Extension Act of 1998 violates neither the Copyright Clause of Constitution nor the First Amendment) (citing Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 5, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966)). The “ ‘constitutional command,’ ” the Supreme Court has recognized, “is that Congress, to the extent it enacts copyright laws at all, create a ‘system’ that ‘promote[s] the Progress of Science.’ ” Eldred, 123 S.Ct. at 785 (quoting Graham, 383 U.S. at 6, 86 S.Ct. 684). The copyright clause, as stated by the Supreme Court, “is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). Although plaintiff asserts that it is entitled to protection under the copyright clause, it fails to articulate how the Constitutional copyright clause provides a defense to its copying and internet streaming of the trailers, or the legal standard by which such a determination can be made. Contrary to plaintiffs assertion, not all uses that foster the free flow of information and exchange of ideas are entitled to protection under federal copyright law. See, e.g., Stewart v. Abend, 495 U.S. 207, 228-29, 236-38, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990). In Steivart, the Supreme Court stated that [A]lthough dissemination of creative works is a goal of the Copyright Act, the Act creates a balance between the artist’s right to control the work during the term of the copyright protection and the public’s need for access to creative works. The copyright term is limited so that the public will not be permanently deprived of the fruits of an artist’s labors. But nothing in the copyright statutes would prevent an author from hoarding all of his works during the term of the copyright. In fact, this Court has held that a copyright owner has the capacity arbitrarily to refuse to license one who seeks to exploit the work. Stewart, 495 U.S. at 228, 110 S.Ct. 1750 (citations omitted). Thus, where no legal standard determining protection under the Constitutional copyright clause is apparent, plaintiffs argument that it is entitled to the copyright clause’s protection fails. 2. Fair Use Defense Plaintiff argues that its use of the Disney trailers and its own clip previews on the internet constitutes fair use because the use complements or promotes the copyrighted work. “ ‘Fair use is a mixed question of law and fact.’ ” Ty, 292 F.3d at 516 (quoting Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985)). Thus, the issue “ ‘may be resolved on summary judgment if a reasonable trier of fact could reach only one conclusion’ — but not otherwise.” Ty, 292 F.3d at 516 (quoting Narell v. Freeman, 872 F.2d 907, 910 (9th Cir.1989)). The “fair use” defense “allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.” Eldred, 123 S.Ct. at 789. The “fair use” defense is codified at 17 U.S.C. § 107, which states that [T]he 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), scholarship, or research, is not an infringement of copyright. 17 U.S.C. § 107. “The fair use defense affords considerable ‘latitude for. scholarship and comment,’ and even for parody.” Eldred, 123 S.Ct. at 789 (quoting Harper & Row, 471 U.S. at 560, 105 S.Ct. 2218; Campbell v. Acujf-Rose Music, Inc., 510 U.S. 569, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994)). The factors to be considered in determining whether one is entitled to the fair use doctrine include, but are not limited to, the following: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. This Court previously held that plaintiff had not shown a probability of success on the merits of its fair use defense in the context of the preliminary injunction motion. See Video Pipeline, 192 F.Supp.2d at 335-43. That prediction is reexamined now in the context of summary judgment motion practice, enlightened by the completion of plenary discovery creating a complete factual record. a. Purpose and Character of Use Under this factor, the Supreme Court has stated that the use of a copyrighted work for a commercial purpose “tends to weigh against a finding of fair use.” Campbell, 510 U.S. at 585, 114 S.Ct. 1164 (quoting Harper & Row, 471 U.S. at 562, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985)). The Supreme Court has also stated that The central purpose of this investigation is to see ... whether the new work merely supersede^] 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; it asks, in other words, whether and to what extent the new work is transformative. Campbell, 510 U.S. at 579, 114 S.Ct. 1164. Thus, the more transformative the work, the less important the other factors, including commercialism, become. Kelly v. Arriba Soft Corp., 280 F.3d 934, 940 (9th Cir.2002) (citing Campbell, 510 U.S. at 579, 114 S.Ct. 1164). Plaintiff raises Ty v. Publications International, supra, and Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir.2002), as support for its claim. In Ty, as mentioned above, the Seventh Circuit considered whether a company which published a series of books using photographs of copyrighted Beanie Babies was entitled to a trial on its defense of fair use. The Seventh Circuit, after consideration of the factors mentioned above, reversed the summary judgment decision, and remanded to the district court. The photographs, themselves considered derivative works of the copyrighted work, were used in a series of collector’s guides on Beanie Babies, and the Seventh Circuit determined that such books may constitute complements of, rather than substitutes for, the copyrighted material. In Kelly, the Ninth Circuit considered whether a web site operator that included plaintiffs copyrighted photographs as part of its search engine database constituted a fair use. The Ninth Circuit held that the use of thumbnail-size images of the photographs was a fair use, but that the display of the full image of the copyrighted work that appears upon double-clicking the thumbnail-size image constitutes a violation of plaintiffs exclusive right to publicly display his works. With respect to the transformative nature under the first factor, the Ninth Circuit determined that the photographer’s use of the images, in terms of artistic expression, serves a different function than the search engine’s use of improving access to information on the internet. Because the thumbnail did not supersede the photographer’s use but had created a different purpose for the images, the web operator’s use of the image was transfor-mative, favoring a finding of fair use. With respect to the full-size image, the court determined that the full-size images did not enhance the search engine, but acted as illustrations or artistic expression. In other words, the full-size images, likely the end products themselves, did not act as a means of accessing other information on the internet, and thus the search engine would function the same without them, thereby serving a purpose no different than that of the photographer. The holdings of the Seventh and Ninth Circuits provide support for the proposition that a fair use defense is favored if the copying complements the use of the copyrighted works and serves a transformative purpose, that is, a purpose different than that of the copyright owner. Plaintiffs use of the copyrighted material in this case furthers the purpose of allowing customers of authorized retailers selling Disney motion pictures to access the streaming of the clip previews and trailers provided by plaintiff by the click of a button on the internet. Like the collector’s guide in Ty, the clip previews and trailers in this case are informational, as they provide segments of the actual copyrighted movie to inform customers of the movie’s story or theme. Unlike Ty, however, the clip previews and trailers, although accumulated on a database, do not add additional or critical evaluative information to the copyrighted works, as they are only truncated versions of the movies, with choice scenes selected and put together. Although the clip previews and trailers in this case are not clear substitutes for the copyrighted works, they do not complement the motion picture rentals or sales by adding information similar to a collectors’ guide nor do they represent an entirely different product line that consumers of the movie may also be interested in purchasing, as in Ty. Plaintiffs use of the copyrighted work is to increase sales of defendants’ movies, though for its own profit and for profit of different retailers and distributors. The clip previews and trailers are not created for the benefit of collectors of the copyrighted works, nor do they provide an additional fora of products to which consumers of the copyrighted works would also be drawn. Importantly, home video retailers and other distributors of these motion picture who generally pay for plaintiffs services on a per-megabyte basis, not just renters and purchasers of the copyrighted movie, consume this type of product. The retailers and distributors of the copyrighted work and the owners of the copyrighted work have a similar purpose, that of selling and renting the videos of the motion picture movies. Especially here, where Disney has actually entered the market by creating its own trailers for promoting its movies, it cannot be said that plaintiff has created a transformative purpose, or that its purpose is substantially different than that of defendants. Because plaintiff has not changed the purpose or character of the use of the copyrighted images, the first factor strongly favors defendant. b. Nature of the Copyrighted Work This second factor “calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.” Campbell, 510 U.S. at 586, 114 S.Ct. 1164 (citing cases). “The law generally recognizes a greater need to disseminate factual works than works of fantasy or fiction.” Harper & Row, 471 U.S. at 563, 105 S.Ct. 2218 (citing Gorman, Fact or Fantasy? The Implications for Copyright, 29 J. Copyright Soc. 560, 561 (1982)). “ ‘Works that are creative in nature are closer to the core of intended copyright protection than are more fact-based works.’ ” Kelly, 280 F.3d at 942-43 (quoting A & M Records, 239 F.3d at 1016 (internal citation omitted)). The fact that the copyrighted works in this case are fictional affords defendants greater copyright protection than would be afforded to one whose work is purely factual. Plaintiff, however, asserts that the fact that the home videos are widely accessible to the public favors fair use. It is true that a purpose of the Copyright Act is to disseminate information and promote learning, and that published works are more likely to qualify as fair use because the first appearance of the artist’s expression has already occurred. See, e.g., Kelly, 280 F.3d at 943 (finding that the this factor slightly favored copyright owner) (citing Harper & Row, 471 U.S. at 564, 105 S.Ct. 2218 (discussing fair use defense as narrower with respect to unpublished works because the “author’s right to control the first public experience of his expression weighs against such use of the work before its release”)). Even where the copyright owner’s images appeared on the internet before the alleged infringer began using those images on its search engine, however, as in Kelly, the Ninth Circuit has stated that this factor slightly weighs in favor of the copyright owner. Furthermore, the Supreme Court in Harper & Row noted the narrower scope of the fair use defense with respect to unpublished works, in that case an unpublished autobiography which a magazine had excerpted before its publication. That situation is lacking here, where the copyrighted materials were published before plaintiff first began its use of the copyrighted material. The clip previews and the Disney trailers are works of fiction and fantasy, not factual works. Accordingly, this factor weighs against the finding of a fair use defense. c. Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole The issue under the third factor is whether “ ‘the amount and substantiality of the portion used in relation to the copyrighted work as a whole,’ ... are reasonable in relation to the purpose of the copying.” Campbell, 510 U.S. at 586, 114 S.Ct. 1164. This factor requires consideration of the quantity of the material used, as well as their quality and importance. Id. at 587, 114 S.Ct. 1164; see also Harper & Row, 471 U.S. at 564-65, 105 S.Ct. 2218 (“[N]o plagiarist can excuse the wrong by showing how much of his work he did not pirate.”) (citations omitted). In the case of the clip previews, plaintiff uses selected segments from the motion pictures. Plaintiff states that such use is designed to attract audiences to, not away from, the copyrighted home videos, and thus its clip previews complement and promote the videos. While the clip previews are very short, only less than 2 minutes in duration, whereas the actual movie may be over an hour to two hours long, they are intended to give consumers an idea of the theme or storyline of the movie. To this extent, the choice of selecting scenes to be played in the clip preview is not uninformed, nor arbitrary. As this Court noted in the Opinion granting the preliminary injunction, Much as taking passages from the “heart” of a book may be used to demonstrate the essence of the copyrighted work, so may an aggregation of scenes from a motion picture be a re