Full opinion text
TJOFLAT, Circuit Judge: The parties in this case disagree over the scope of copyright protection in a book about sales techniques authored by the late Leslie Achilles “Les” Dane. Peter Letterese & Associates, Inc. (“PL&A”), the exclusive licensee of the copyright in Dane’s book, claims that three entities affiliated with the Church of Scientology have been infringing its copyright by incorporating portions of the book into their instructional course materials, and seeks declaratory and injunctive relief. On cross-motions for summary judgment, the district court assumed that the infringement was occurring as alleged but ruled for defendants. The court did so on two alternative grounds: the infringement was permissible under the fair use doctrine; and PL&A’s suit was barred by laches. PL&A now appeals. We uphold the district court’s decision as to three claims, but find error in the court’s application of the fair use doctrine and the laches defense to a remaining claim. We therefore affirm, in part, and vacate and remand, in part. The organization of this opinion proceeds as follows. Part I presents the factual background and procedural history of the case. Part II affirms the grant of summary judgment with respect to two claims alleging that defendants’ instructional courses — in and of themselves — constitute infringing derivative works, but concludes with respect to two remaining claims that there is a general issue of material fact as to whether the course materials are substantially similar to Dane’s book. Part III explains the contours of fair use, and concludes, that it is merited as to some, but not all, of defendants’ uses of the book. Part IV considers the applicability of the defense of laches in a copyright infringement suit, a question of first impression in this circuit. Part V concludes. I. A. The copyrighted work in question is a book by Les Dane entitled Big League Sales Closing Techniques {“Big League Sales”). The introduction to the book claims that its descriptions of “specific techniques and true cases” collectively “pinpoint ] the most effective, miracle closes” in sales. The balance of the book presents these sales techniques through Les Dane’s recounting of personal anecdotes, from which the titles of techniques (both good and bad) are drawn. The book repeatedly returns to the “one basic theme” that each sales prospect is clad in a “brick overcoat” of fear, and that the well-prepared salesman will know how to identify different “bricks” (sources of sales resistance) and eliminate them. The book was originally published in 1971 by the Parker Publishing Company and duly registered in April 1971 in compliance with the formalities of the Copyright Act of 1909, 35 Stat. 1075, 17 U.S.C. § 1 et seq. (1976 ed.). Under the copyright law then in effect, Les Dane was entitled to an initial 28-year term of copyright protection and the right to renew for an additional 28-year term. 17 U.S.C. § 24. Shortly thereafter, L. Ron Hubbard, the founder of the Church of Scientology (“the Church”) and a prolific writer in his own right, took a shine to Big League Sales and recommended that it be used to train Scientology “registrars,” who sell Scientology books and services to Church members. The Hubbard Communications Office disseminated a number of policy letters regarding the teaching of salesmanship techniques and skills from the book, and in 1972 the Church began to create a number of courses for training registrars. The Church developed materials for use in these courses, including “checksheets” and “drill sheets.” A checksheet is a step-by-step list of the actions that a student is required to take to complete a course, such as the completion of reading assignments and the performance of various practical exercises, including sales drills. Students form pairs, or “twins,” to perform the sales drills — generally involving some form of roleplay — which are described on drill sheets accompanying the checksheet. While these courses assigned readings from Big League Sales (among other writings), the Church did not make copies of the book itself; students would either borrow or purchase the book for their study. It is undisputed that Les Dane knew of the Church’s use of Big League Sales and participated in such use. Beginning in the mid-1980s, the Church hired Les Dane to travel to Scientology churches in the United States and abroad to deliver seminars to registrars and others on the application of the sales techniques in his book. In these seminars, Les Dane occasionally referred to the sales drills and supervised the practice of those drills. Defendants in this action are three entities affiliated with the Church: the Church of Scientology International, Inc. (“CSI”), the World Institute of Scientology Enterprises International, Inc. (“WISE”), and the Church of Spiritual Technology (“CST”). CSI has been the mother church of Scientology since 1981. Among other duties, CSI creates materials for use in staff training courses. Of these courses, there are two main types which include the study of Big League Sales; courses typified by the Professional Registration Course and the Organization Executive Course, which were both compiled in 1991. CSI encourages Church staff members to take these courses as part of their training for certain positions in Church organizations. The staff members complete the courses at their own pace in course rooms provided by CSI, and their progress is monitored and assisted by a course supervisor. However, the course supervisor does not lecture or add to the substantive material of the course. In exchange for taking one of these courses, each staff member signs a promissory note for the “donation amount of the course.” In the event that the staff member subsequently fails to serve out the duration of his staff contract, the promissory note becomes due to the Church organization as “a debt for the services that he took while on staff.” WISE, also formed in 1981, is a membership organization for businessmen and professionals who seek to apply Hubbard’s administrative technologies to secular organizations. WISE creates and sells packs of course material on this subject, and licenses some of its members to provide business consulting services using WISE materials. From 1983 until June 2004, WISE sold for a flat price of $75 a Sales Course pack which taught the sales techniques from Big League Sales. The relevant sections of the checksheets and drills used in the Sales Course vary somewhat in content and organization from the corresponding materials used in the Professional Registration Course and the Organization Executive Course. CST was created in 1982 to receive the bulk of the estate of Hubbard, including his intellectual property rights. (Hubbard died in 1986.) Its mission is to preserve Scientology scriptures, which consist of the written and spoken word of Hubbard as well as films concerning religious training and the administration of Scientology services. CST acquired the copyrights to Hubbard’s works in 1993 and has since licensed the rights to use those works to CSI, WISE, and other affiliated entities. Though CST has claimed not to have reviewed any of WISE and CSI’s course materials, it had the right to review the WISE materials pursuant to the license agreement. Peter Letterese, a principal of PL&A, was an off-and-on member of the Church for approximately two decades beginning in 1973. In addition to serving as a registrar, Letterese held several positions in Church organizations. He accordingly studied Big League Sales in several courses, including the Organization Executive Course. During the late 1980s and early 1990s, Letterese was also a member of WISE; as such, he was licensed to sell WISE courses. On December 31, 1993, while Letterese was still a member in good standing in the Church, PL&A acquired the exclusive rights to Les Dane’s literary works (including the right of enforcement) through a written contract with the heirs of the Dane estate, including Les Dane’s widow, Lois “Betty” Dane. These rights extended through the renewal term. PL&A also purchased the outstanding rights of Prentice Hall in 1994. PL&A subsequently withdrew Big League Sales from the market; it has been out of print since 1994. The Church “declared,” or excommunicated, Letterese in July 1994 for violating certain Church policies. Nonetheless, Let-terese continued to regard himself as a Scientologist. In July 1995, Marilyn Pisa-ni, then the legal affairs director of Bridge Publications, Inc. (the North American publisher of Scientology works), wrote a letter to Prentice Hall seeking certain nonexclusive rights in Big League Sales. Later that month, Prentice Hall notified Bridge Publications that PL&A had purchased its rights. Pisani then contacted PL&A in late November 1995 seeking the right to republish the book. In response, Daniel Dashman, who was then the general counsel of PL&A, attempted several times to call Pisani back. Finally, in August 1996, Dashman sent Pisani a letter stating that PL&A had acquired Big League Sales with the intention of “making its own use” of the book as well as “keeping it available to the Church.” The letter explained: “It was not our intention in 1993, nor is it now, nor will it ever be in the future to prevent [L. Ron Hubbard’s] intention with regard to Mr. Dane’s work to be thwarted or stopped.” In spite of PL&A’s declared wish to ensure the continued availability of Big League Sales to the Church, however, Dashman made clear that “[n]o statements made in this letter are intended nor should they be construed as a granting of any rights to the work of Mr. Les Dane and specifically is not a granting of the right to republish [Big League Safes].” No agreement was reached at that time. The copyright in Big League Sales was duly renewed and re-registered on January 4, 1999. During 1999 and 2000, PL&A became embroiled in litigation with the Dane family over the license agreement. In 2000, Bridge Publications contacted the Dane family directly to seek rights relating to the book, but was unsuccessful. Later that year, PL&A and Bridge Publications resumed negotiations concerning Bridge Publications’ desire to publish hard cover versions of the book for the internal use of Church organizations. Periodically from 2000 to 2003, PL&A corresponded with Bridge Publications in an attempt to ascertain the scope of Bridge Publications’ intended use of the book. In 2003, PL&A sued Bridge Publications in the Superior Court of Los Angeles County, California, alleging tortious interference with contract and other related claims. On January 27, 2004, attorney David Schindler of Latham & Watkins, LLP, contacted PL&A, seeking to negotiate a resolution of the pending dispute on behalf of Bridge Publications, WISE, and CSI. Schindler met with Letterese and two of his attorneys on February 13, 2004, to negotiate a settlement. On February 27, 2004, Schindler sent Letterese’s attorney a letter confirming the terms of an agreement that provided for the dismissal of the pending suit without prejudice and for a one-year moratorium on litigation of any kind between any entity affiliated with Letterese and any entity affiliated with the Church. PL&A dismissed its suit, as agreed. PL&A also sought further assurances that Schindler was indeed authorized to act on behalf of all Church-related entities, and that the agreement was enforceable. On April 8, 2004, believing that satisfactory assurances had not been provided, PL&A returned to the Los Angeles County Superior Court and filed a second suit against Bridge Publications, WISE, CSI, and others, seeking a declaration either that the February 27 letter was not a binding agreement, or that it constituted a binding agreement with all Church-affiliated entities. B. On September 10, 2004, PL&A brought this present suit in the United States District Court for the Southern District of Florida against CSI, CST, and WISE for the alleged violation of its exclusive rights pursuant to the Copyright Act, 17 U.S.C. § 101 et seq., within the three years prior to filing. The complaint set forth four vaguely pled causes of action, which we construe in conjunction with the parties’ briefs. Count 1 is against all defendants and alleges that the WISE Sales Course’s checksheets and drill sheets constitute unauthorized reproductions of Big League Sales in violation of 17 U.S.C. § 106(1). Count 2 also names all defendants and alleges that the WISE Sales Course as a whole — which includes the checksheets, drill sheets, and Big League Sales itself— constitutes an infringing derivative work based upon the book in violation of 17 U.S.C. § 106(2). Counts 3 and 4 name only CSI and CST as defendants and concern courses such as CSI’s Organization Executive Course and Professional Registration Course. Count 3 alleges that the checksheets and drill sheets used in these courses infringe the copyright in Big League Sales in violation of 17 U.S.C. § 106(1). Like Count 2, Count 4 alleges that these courses as a whole constitute infringing derivative works based upon the book in violation of 17 U.S.C. § 106(2). Defendants answered PL&A’s claims by denying that the use of the course materials described in the complaint violated the Copyright Act. As affirmative defenses, defendants alleged that their use of Big League Sales was permissible under the fair use doctrine and, alternatively, that PL&A’s claims were barred by laches. Following a period of discovery, PL&A moved for summary judgment on Counts 2 and 4 only, arguing that the Sales Course, Organization Executive Course, and Professional Registration course represent infringing derivative works of Big League Safes. Defendants filed cross-motions for summary judgment on all counts, arguing that the course material is not substantially similar to the book and thus does not infringe its copyright, and further advancing the defenses of fair use and laches. The district court did not conclude that the copyright in Big League Sales had been infringed; rather, it assumed the existence of infringement and held that, in any event, fair use precluded recovery on all counts — including, of course, against those parties alleged to be liable for contributory or vicarious infringement. The district court also held that defendants were entitled to summary judgment on the ground of laches. Pursuant to its ruling, the district court entered judgment for defendants on August 23, 2005. This appeal followed. II. We begin by analyzing the antecedent issue, whether PL&A has made out a pri-ma facie case of infringement as to all claims. As to Counts 2 and 4, claims brought under 17 U.S.C. § 106(2), we find that defendants’ courses as a whole are not derivative works of Big League Sales, and therefore affirm the court’s grant of summary judgment for defendants as to those counts. See Parks v. City of Warner Robins, 43 F.3d 609, 613 (11th Cir.1995) (“[W]e may affirm the district court’s decision on any adequate ground, even if it is other than the one on which the court actually relied.”). With respect to Counts 1 and 3, we find that there is a genuine issue of material fact as to whether defendants’ course materials are substantially similar to Big League Sales in violation of 17 U.S.C. § 106(1). A. PL&A contends that the district court erred in not treating defendants’ courses as derivative works of Big League Sales, which it believes would necessitate the grant of summary judgment in its favor as to Counts 2 and 4. Specifically, PL&A argues that the courses as a whole are akin to the derivative works described in the much-criticized case of Mirage Editions v. Albuquerque A.R.T. Co., 856 F.2d 1341 (9th Cir.1988). See Lee v. A.R.T. Co., 125 F.3d 580, 582 n. 1 (7th Cir.1997) (“Scholarly disapproval of Mirage Editions has been widespread.”). In that case, the defendant cut pages of artwork prints out of plaintiffs’ book, “mounted them individually onto ceramic tiles and sold the tiles at retail.” Mirage Editions, 856 F.2d at 1342. Because conventional mounting and framing techniques clearly do not result in the preparation of derivative works, the court’s decision finding infringement could not have been based on the fact that the tile was a sort of “flush frame,” but, as the Lee court observed, must have been based on the fact that “the epoxy resin bonds the art to the tile.” Lee, 125 F.3d at 581. Like others before us, we believe that this justification is a highly questionable one indeed. See id. (noting that “this is a distinction without a difference,” in part because conventional mounting and framing techniques are likewise not “easily reversible,” as they commonly involve punctures, trimming, or bonding as a prelude to framing). But even if we were to regard Mirage Editions as representing the outer boundary of what constitutes a derivative work, what PL&A alleges in Counts 2 and 4 falls outside that boundary because defendants do not sell checksheets and drill sheets that are affixed to Big League Sales. Nor are any pages from the book photocopied as part of the coursepack. Indeed, the book is not a part of defendants’ courses in the sense that the checksheets, drill sheets, and book “as a whole, represent an original work of authorship,” 17 U.S.C. § 101; “the authorship of [the checksheets and drill sheets] is entirely different and separate from the authorship of [Big League Sales].” See SHL Imaging, Inc. v. Artisan House, Inc., 117 F.Supp.2d 301, 306 (S.D.N.Y.2000). PL&A’s argument reduces simply to the flightless claim that selling the course materials (specifically, selling the checksheets and drill sheets to be used with lawfully acquired copies of the book) facilitates a “remounting” of Big League Sales. But like any other frame, this argument does not fulfill the requirement that a derivative work must “recast, transform, or adapt” the preexisting work. See Lee, 125 F.3d at 582 (“[T]he copyrighted note cards and lithographs were not ‘transformed’ in the slightest. The art was bonded to a slab of ceramic, but it was not changed in the process. It still depicts exactly what it depicted when it left Lee’s studio.”). We therefore affirm the district court’s grant of summary judgment as to Counts 2 and 4 because the courses as a whole do not constitute derivative works. B. Before embarking on an analysis of PL&A’s remaining claims of copyright infringement, Counts 1 and 3, we first clarify the relevant legal standard. To make out a prima facie case of copyright infringement, a plaintiff must show that (1) it owns a valid copyright in the book and (2) defendants copied protected elements from the book. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991); Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1266 (11th Cir.2001). Defendants have not contested PL&A’s ownership of a valid copyright. Rather, they focus on Feist’s second prong, which, in turn, entails proof of both factual and legal copying, that is: (1) “whether the defendant, as a factual matter, copied portions of the plaintiffs [work]”; and (2) “whether, as a mixed issue of fact and law, those elements of the [copyrighted work] that have been copied are protected expression and of such importance to the copied work that the appropriation is actionable.” Mi-Tek Holdings, Inc. v. Arce Eng’g, Inc., 89 F.3d 1548, 1554 (11th Cir.1996) (citation omitted); see also BUC Int’l Corp. v. Int’l Yacht Council Ltd., 489 F.3d 1129, 1148 n. 40 (11th Cir.2007). In the absence of direct proof, factual copying may be inferred from circumstantial evidence, either through establishing that the works are “strikingly similar,” see Calhoun v. Lillenas Publ’g, 298 F.3d 1228, 1232 n. 6 (11th Cir.2002); or through “proof of access to the copyrighted work and probative similarity.” Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1541 (11th Cir.1996) (internal quotation mark omitted). Because defendants admit that portions of Big League Sales were copied, this appeal centers on the subsequent inquiry of whether such copying is “legally actionable; that is, whether there is ‘substantial similarity’ between the allegedly offending [works] and the protecta-ble, original elements” of the book. See Bateman, 79 F.3d at 1542; Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1224 n. 5 (11th Cir.2008) (considering “whether a reasonable jury could find the competing [works] substantially similar at the level of protected expression”); see also Leigh v. Warner Bros., Inc., 212 F.Sd 1210, 1214 (11th Cir.2000) (noting that substantial similarity in this “second, more focused way” is necessary to establish that the defendant’s attempt at appropriation “succeeded to a meaningful degree”). Copyright protects original expression only; it does not extend to any underlying ideas, procedures, processes, and systems. Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1248 (11th Cir. 1999). “For example, the idea of hunting a formidable whale at the lead of an eccentric captain is not protected by copyright law. The expression of this idea as it is encapsulated in the novel Moby-Dick, however, is protected by copyright.” BUC Int’l Corp., 489 F.3d at 1143. Uncopyrightable “ideas” include scenes faire, which are “sequences of events which necessarily follow from a common theme,” or “incidents, characters, or settings that are indispensable or standard in the treatment of a given topic.” Herzog, 193 F.3d at 1248 (internal citations and quotation marks omitted). See, e.g., Beal v. Paramount Pictures Corp., 20 F.3d 454, 463 (11th Cir.1994) (“[A]ll works involving courtship and marriage will feature a wedding, usually near the end of the story.”); Herzog, 193 F.3d at 1262 (“[D]eath due to foul play instead of natural causes is a standard element of murder mysteries.”). Historically, courts have hesitated to make determinations as to infringement or non-infringement on a summary judgment motion because of their “reluctan[ee] to make subjective determinations regarding the similarity between two works.” Herzog, 193 F.3d at 1247; see also Beal, 20 F.3d at 459. Nonetheless, where “the similarity between two works concerns only non-copyrightable elements of the plaintiffs work,” or where “no reasonable jury, properiy instructed, could find that the two works are substantially similar,” summary judgment is appropriate. Herzog, 193 F.3d at 1247. Based on our evaluation of the course material, we find that PL&A has established a prima facie case of infringement with respect to Counts 1 and 3. A factfinder ultimately may conclude that the similarities between the protected elements of Big League Sales and the course material are not substantial, but the similarities are significant enough to create a genuine issue of material fact. We now proceed to that analysis. C. The central question with which Big League Sales grapples is: “Why does the prospect balk when he gets face-to-face with the decision to buy or not buy?” Drawing upon his personal experience and the experience of fellow salesmen, Les Dane describes “step-by-specific step” how a salesman ought to deal with the case of a reluctant purchaser who is wrapped in a “brick overcoat” of his or her individual fears: “remove the bricks until the prospective buyer is stripped of his fear — his sales resistance — and becomes susceptible to a close.” The book is organized into thirteen chapters. Each chapter is further subdivided into sections with headings identifying the particular technique or illustrative anecdote. For example, Chapter 1, “The Brick Overcoat of Resistance to the Sale: How Five Key Bricks Can Help You” contains eleven sections: “Scaredy-Cat,” “The Legitimate Objection,” “Listen For the Close,” “The Night Shift Close,” “You and the Finance Man,” “Anything Goes,” “Fool-Proof Financing Formula,” “The Shopper-Stopper,” “The Go-Ahead,” “The Today-Only Close,” and “Simple Sell Close.” Defendants’ course material expressly teaches the content of Big League Sales. Organized into outline form, a checksheet typically lists the book chapter to be read and recites both the chapter title and the section headings. For example, a sample checksheet used in the Professional Registration Course contains a reference to “Chapter 1: ‘The Brick Overcoat of Resistance to the Sale: How Five Key Bricks Can Help You,’ ” and lists the pertinent subheadings: “a. The scaredy-cat and how to close him”; “b. The legitimate objection”; “c. Listening for the close”; “d. The night-shift close”; “e. The go-ahead”; “f. The today-only close”; “g. The simple sell close.” No further explanation of these terms is listed on the checksheet; instead, the checksheet cross-references the sales drill attachments, which contain “DRILLS FOR BIG-LEAGUE SALES CLOSING TECHNIQUES, CHAPTER 1, THE BRICK OVERCOAT OF RESISTANCE TO THE SALE.” Although the differences among the three courses are manifest upon even a cursory review of the material, the parties’ briefs did not evaluate each course separately in light of these differences. The content of CSI’s Professional Registration Course and Organization Executive Course varies from that of WISE’s Sales Course in terms of overall organization and in terms of the content and length of the descriptions in the sales drills. CSI’s courses are more similar to the course material developed by the Church in the 1970s. Significantly, a Hubbard Communications Office Bulletin of November 12, 1972, explained that the registrar salesmanship drills based on Big League Sales “follow the same sequence as the book section by section,” and instructed students to adhere to that order. CSI’s courses remain faithful to that sequential approach. By contrast, the WISE Sales Course’s checksheet and sales drills employ a somewhat rearranged approach to the sections of the book. (They are accompanied by the same stern admonition: “All items on this checksheet are to be done in the sequence shown.”) Our review of the works in question revealed potential instances of both fragmented literal similarity and comprehensive nonliteral similarity of protected expression. We will begin by reviewing the latter. Certain nonliteral aspects of Big League Sales are protectible as the author’s original expression, reflecting his opinion as to which sales techniques, and in which order, are likely to yield the most effective sales results. Nonliteral similarity between the book and the course material may be present in the manner in which the course material tracks the selection and organization of the sales techniques in the book. The case for nonliteral similarity appears to be stronger with respect to CSI’s courses, which canvass the book’s topics in the same order and sequence, but we conclude that the differences in the order of WISE’s Sales Course might be deemed insufficient to defeat an ultimate finding of comprehensive nonliteral similarity. As for potential literal similarity, one of the more striking examples cited by PL&A is contained in Chapter 12 and the corresponding sales drill described in Attachment L of the Professional Registration Course: Big League Sales Six Basic Questions That Guarantee Sound Qualifying: ... The questions: 1. Where does he (she) work and how long? 2. What does he do there? 3. Where does he live and how long? (Circumstances — own, rent, etc.?) 4. Marital status? Children? 5. Who is the (car, boat, insurance, furniture) for? 6. Appearance? (Physical, speech, manner, attitude) ... Professional Registration Course, Attachment L ... the six basic questions that guarantee sound qualifying. The questions are: 1. Where does he (she) work and how long? 2. What does he do there? 3. Where does he live and how long? (Circumstances — own, rent, etc. 4. Marital status? Children? 5. Who is the service or materials for? 6. Appearance? (Physical, speech, manner, attitude) Similarly, Attachment H of the Professional Registration Course sets forth the “six closing errors” described in Chapter 8 of the book in nearly identical language. The book admonishes: “Don’t argue with your prospect; Don’t offer your opinions or criticize your prospects; Don’t knock your competition; Don’t assume authority or break the chain of command; Don’t oversell your product or the finance terms; and most important of all, Don’t ever succumb to one of the other five ‘don’ts’ believing that, ‘Just this once won’t hurt,’ or, ‘The DON’TS really didn’t apply in this case.” The sales drill explains that “the ‘six don’ts’ ” are “1. Don’t argue with your prospect”; “2. Don’t offer your opinions or criticize your prospect’s”; “3. Don’t knock your competition”; “4. Don’t assume authority or break the chain of command or violate policy”; “5. Don’t oversell your product or the finance terms”; and “6. Don’t succumb to one of the other five ‘don’ts’ believing that just once won’t hurt or that they didn’t really apply in that case.’ ” And in addition to these nearly identical examples, there are several instances of paraphrasing of the book which could likewise support a finding of literal similarity. See Kepner-Tregoe, Inc. v. Leadership Software, No. H-90-804, 1992 WL 281474, at *2, 1992 U.S. Dist. LEXIS 12780, at *3 (S.D.Tex. Jan. 9, 1992) (finding substantial similarity between five definitions or “processes” incorporated from plaintiffs management training seminar materials into defendant’s management training computer program). Defendants contend that the course material “does not copy expression from [Big League Nales], and, where it does, it consists almost exclusively of short phrases, titles, unprotected methods or procedures, or concepts that Dane admittedly took from others.” In the first place, the claim that Les Dane pilfered sales techniques from other salesmen misses the mark. Certainly, many of the sales techniques described in the book were nothing new to a profession that is one of the world’s oldest. What is relevant for the purposes of copyright law is that an abstract idea is never eligible for copyright protection. But while Les Dane could not have copyrighted the underlying sales technique, any original expression he used to describe that technique falls squarely into the realm of copyright. See Palmer v. Braun, 287 F.3d 1325, 1331 (11th Cir.2002) (noting that the idea “that people’s beliefs can alter how they experience and understand their fives” is not copyrightable, but “the question is whether [plaintiffs course] expresses this idea in a way that infringes on original expression of the same idea in the [defendant’s course] materials”); see also Barbour v. Head, 178 F.Supp.2d 758, 764 (S.D.Tex.2001) (noting that although recipes that are “nothing more than mere recitations of facts” in the form of “mechanical listings of ingredients and cooking directions” are not eligible for copyright protection, “at least a few” of defendant’s recipes “contain statements that may be sufficiently expressive to exceed the boundaries of mere fact,” such as anecdotal language and suggestions for food presentation); Kepner-Tregoe, Inc., 1992 WL 281474, at *2, 1992 U.S. Dist. LEXIS 12780, at *2 (“Both the Vroom/Yetton model and the Vroom/Jago model are tools used to train managers in better ways of making decisions. Although the theory utilized by both models is an idea taught worldwide, the actual models are expressions of a method by which to make decisions.”). We have previously recognized that “in many copyright cases, the fine between [idea] and expression is not easily drawn,” and is to be determined on the totality of the facts. Palmer, 287 F.3d at 1334; see also Suntrust Bank, 268 F.3d at 1266 (noting that although “stock scenes and hackneyed character types” at one end of the spectrum are considered ideas, “as plots become more intricately detailed and characters become more idiosyncratic, they at some point cross the fine into ‘expression’ ”). When drawing the fine, however, “it is useful to note the policy purposes served by the distinction”; to “encouragfe] the creation of original works on the one hand,” and to “promot[e] the free flow of ideas and information on the other.” Oravec, 527 F.3d at 1225. A reasonable fact-finder could conclude that this fine has been breached on more than one occasion by the course material. For example, both the book and the Professional Registration Course identify the “four basic buyer types” as “the professional buyer,” “the individual,” “the unattached female,” and “the family buyer.” With respect to the professional buyer, the book urges salesmen to “[s]ell him facts, hard pnces and, where possible, demonstration of the product or service,” as he is someone who “wants facts, demonstrations, and proof that yours is the best service or produce [sic] he can buy for the least money.” The sales drill states: “The student must make the close by showing with cold facts and demonstration that the service or item will produce the results required. Student must have such facts, proof and demonstration at his fingertips.” Another salient example of the appropriation of original expression follows from the book’s description of the “unattached female.” An unmarried woman, according to the book, is someone who is susceptible to “a dab of flattery here, some good, practical advice there.” The book then relates an anecdote from a salesman who confided to the author, “[Wjhat they really want is to be able to trust what I tell them.” The corresponding sales drill paraphrases this passage as follows: “The unattached female. The student must handle by using flattery, good sound practical advice, etc., so the prospect feels she can trust what the Registrar is telling her.” Defendants have submitted charts comparing the two works which further reflect a misguided understanding of what may constitute infringement. Defendants argue that short and unoriginal phrases such as “night shift,” “tag team,” and “scaredy cat” must be “filtered out of a court’s consideration” altogether. We decline to adopt defendants’ approach as one that unduly constricts the scope of copyright protection. A similar argument was advanced by the defendant in Salinger v. Random House, Inc., 811 F.2d 90, 92 (2d Cir.1987), in which the defendant wrote a biography of the author J.D. Salinger that borrowed from Salinger’s unpublished letters. In advancing the fair use defense, the defendant argued that he had used only a small proportion of copyrighted expression, excluding from his calculations several passages in which Salinger used clichs and mundane combinations of words. Id. at 98. In rejecting this argument, the court observed: [Copyright] protection is available for the “association, presentation, and combination of the ideas and thought which go to make up the [author’s] literary composition.” Or as we have recently stated, “What is protected is the manner of expression, the author’s analysis or interpretation of events, the way he structures his material and marshals his facts, his choice of words and the emphasis he gives to particular developments.” The “ordinary” phrase may enjoy no protection as such, but its use in a sequence of expressive words does not cause the entire passage to lose protection. And though the “ordinary” phrase may be quoted without fear of infringement, a copier may not quote or paraphrase the sequence of creative expression that includes such a phrase. Id. (second alteration in original) (internal citations omitted). Similarly, here, Les Dane’s inclusion of uncopyrightable short phrases in Big League Sales does not thereby cause the passage in which they are used to lose protection of its copyrightable elements — the original “sequence of thoughts, choice of words, emphasis, and arrangement.” Id. Defendants also argue that any copying that occurred was de minim-is. See 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, 8-24, § 8.01 [G] (2002) (“[F]or similarity to be substantial, and hence actionable, it must apply to more than simply a de minimis fragment”). We disagree. The extent of copying must be assessed with respect to both the quantitative and the qualitative significance of the amount copied to the copyrighted work as a whole. MiTek Holdings, Inc., 89 F.3d at 1560 & n. 26 (noting that substantial similarity in this respect involves a comparison of the works “as a whole, not constituent elements” thereof); see also Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 75 (2d Cir.1997) (noting that a finding of “substantial similarity,” to be legally actionable, requires that “the amount of the copyrighted work that is copied” must be “quantitatively and qualitatively sufficient”). In the first place, even if the borrowed expression from the book does not exceed one percent of defendants’ course materials (itself a questionable calculation in light of defendants’ overly narrow view of the book’s protected expression), that argument is not really on point, because it is the relative portion of the copyrighted work — not the relative portion of the infringing work — that is the relevant comparison. Taken to its extreme, such a view would potentially permit the wholesale copying of a brief work merely by inserting it into a much longer work. Moreover, though the amount of expression copied may be quantitatively small with respect to the length of the book (constituting approximately 180 prose pages), the qualitative importance of the portion copied — particularly as it appears in the sales drills — is significant enough to preclude the grant of summary judgment for defendants on this ground. Accordingly, PL&A has established a prima facie case of infringement of Big League Sales with respect to Counts 1 and 3. III. The district court’s decision largely eschewed the foregoing analysis and rested primarily on fair use grounds. Because the district court misconstrued the factors relevant to the defense of fan-use, we are at some pains to reiterate the doctrine’s underlying principles and to demonstrate their application “in separating the fair use sheep from the infringing goats” in this case. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586, 114 S.Ct. 1164, 1175, 127 L.Ed.2d 500 (1994). We find upon proper application of the factors that defendants are entitled to the defense at the summary judgment stage as to Count 3 only. A. The Copyright Act provides that: [T]he fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (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. Fair use doctrine is an “equitable rule of reason”; neither the examples of possible fair uses nor the four statutory factors are to be considered exclusive. Stewart v. Abend, 495 U.S. 207, 286-37, 110 S.Ct. 1750, 1768, 109 L.Ed.2d 184 (1990); Campbell, 510 U.S. at 577-78, 114 S.Ct. at 1170-71. Furthermore, the statutory factors are not to “be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell, 510 U.S. at 578, 114 S.Ct. at 1170-71. The district court explicitly adopted a “fifth” factor, which it described as “the copyright owner’s actual consent to the use of the copyrighted material.” The court pointed to record evidence showing that “both Dane and Plaintiff knew of, assented to, and participated in Defendants’ use of [Big League Sales] for decades,” namely, (1) the fact that in the 1980s, Les Dane taught the book and used sales drills in Church seminars, and (2) the fact that Letterese knew of Les Dane’s participation in Church seminars and, as a practicing Scientologist, took several courses teaching the book. In addition to creating a “consent” factor, the court further explained that these facts “permeate[d]” its evaluation of the four statutory factors. This was incorrect, both in terms of logic and precedent. As the district court itself recognized, the existence of actual consent negates the necessity of conducting a fair use analysis in the first place, as the existence of a license is an independent affirmative defense to a claim of copyright infringement. See Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 144 n. 2 (2d Cir.1998) (“The doctrine of ‘fair use’ allows the appropriation of a copyrighted work without consent under certain circumstances.”) (emphasis added). Actual consent therefore is not properly a factor in fair use analysis. Moreover, the district court erred in finding that defendants had obtained actual consent to copy the book during the relevant period. Did Les Dane, at one time, give implied consent to the use of the book in the course material? Perhaps so; he evidently knew of and permitted Hubbard’s use of the book to some extent, as he even taught seminars utilizing sales drills on behalf of the Church during the 1980s. See Korman v. HBC Fla., Inc., 182 F.3d 1291, 1293 (11th Cir.1999) (“While an exclusive license to use copyrighted material must be written, a nonexclusive license can be granted orally or can be implied from the conduct of the parties.”). But PL&A does not allege that defendants’ use during that time was infringing; rather, this case is concerned with a period of defendants’ use of the book that took place after any such grant of rights to defendants would have lapsed. Because Les Dane died before he could register for the book’s renewal term, he could not have consented to defendants’ use of the book in the renewal term, even had he wished it. See Stewart, 495 U.S. at 230, 110 S.Ct. at 1765. Les Dane’s “death, prior to the renewal period, terminate[d] his [contingent] interest in the renewal,” id. at 219, 110 S.Ct. at 1759, and the subsequent renewal of the copyright by his statutory heirs, the Dane family, created a “new estate” that was “clear of all rights, interests or licenses granted under the original copyright.” P.C. Films Corp. v. MGM/UA Home Video, 138 F.3d 453, 456-57 (2d Cir.1998) (quotation marks omitted). By finding that defendants’ use of Big League Sales was fair because of Les Dane’s earlier consent, the district court effectively contravened this principle by encumbering the renewal term. Nor does the fact that Letterese took several of the courses while he was still a practicing Scientologist mean that PL&A consented to defendants’ use of the book; PL&A was not then the exclusive licensee of the book. B. As PL&A did not actually consent to defendants’ use of Big League Sales, it is appropriate to consider whether defendants were entitled to the defense of fair use. We proceed through an analysis of the statutory factors. 1. Purpose and Character of the Use. “The first factor in the fair-use analysis, the purpose and character of the allegedly infringing work, has several facets.” Suntrust Bank, 268 F.3d at 1269. Two such facets are (1) whether the use serves a nonprofit educational purpose, as opposed to a commercial purpose; and (2) the degree to which the work is a “trans-formative” use, as opposed to a merely superseding use, of the copyrighted work. Id. Before illumining these facets, however, we observe that the Supreme Court has cautioned against the use of the facets to create “hard evidentiary presumption[s]” or “categories of presumptively fair use.” Campbell, 510 U.S. at 584, 114 S.Ct. at 1174 (“[T]he mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness.”). Rather, the commercial or non-transformative uses of a work are to be regarded as “separate factor[s] that tend[] to weigh against a finding of fair use,” and “the force of that tendency will vary with the context.” Id. at 585, 114 S.Ct. at 1174 (internal quotation marks omitted). And “[t]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Id. at 579, 114 S.Ct. at 1171. The Supreme Court has emphasized that “[t]he crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562, 105 S.Ct. 2218, 2231, 85 L.Ed.2d 588 (1985). The district court misconstrued this statement, concluding that because “Dane and Plaintiff knew about Defendants’ use of [Big League Sales] but never charged or demanded a fee for it[,] ... there appears to have been no ‘customary price’ at all for their particular use of [the book].” The question is not whether PL&A and defendants had set a price between themselves over a course of dealing (which defendants then neglected to pay); it is whether the nature of defendants’ use vis-a-vis the public was such that defendants stood to profit commercially from it. See Paramount Pictures Corp. v. Carol Publ’g Group, 11 F.Supp.2d 329, 334 (S.D.N.Y.1998), aff'd mem., 1999 WL 319328 (2d Cir. May 13, 1999) (noting that the first aspect “is whether the work is primarily commercial in nature or whether [it] aspires to serve broad public purposes”). That WISE charged $75 for each Sales Course pack clearly demonstrates the commercial purpose of the course materials. See Suntrust Bank, 268 F.3d at 1269 & n. 24 (noting that the fact that defendant “chose a method of publication designed to generate economic profit” weighed against a finding of fair use). CSI did not charge a monetary fee outright for consumption of the Professional Registration Course or Organization Executive Course, but it undeniably derived a commercial benefit therefrom by obtaining a promissory note for the fixed “donation amount of the course,” which became payable in the event that the student failed to render services to the Church for the full duration of his or her staff contract. Cf. Roy Export Co. Establishment v. Columbia Broad. Sys. Inc., 503 F.Supp. 1137, 1144 (S.D.N.Y.1980) (noting that although CBS’s broadcast of a tribute to Charlie Chaplin which included copyrighted film clips was not sponsored, CBS “stood to gain at least indirect commercial benefit from the ratings boost which it had reason to hope would (and in fact did) result from the special”). Nor may defendants’ course materials properly be deemed “transformative” of the book. A transformative work is one that “adds something new, with a further purpose or different character, altering the first [work] with new expression, meaning or message.” Campbell, 510 U.S. at 579, 114 S.Ct. at 1171. On the other hand, a work that is not transformative, and that “merely superseded] the objects of the original creation,” is less likely to be entitled to the defense of fair use because of the greater likelihood that it will “supplant” the market for the copyrighted work, “fulfilling demand for the original.” See id. at 579, 588, 114 S.Ct. at 1171, 1176 (alteration in original) (internal quotation marks omitted); Harper & Row, 471 U.S. at 562, 105 S.Ct. at 2231 (noting the defendant’s effect and intended purpose of “supplanting” the copyright owner’s commercial rights). The difference between a transformative use and a superseding use is illustrated by the contrast between two works derived from Margaret Mitchell’s novel, Gone With the Wind, (“GWTW”). Alice Randall’s novel, The Wind Done Gone, inverts the original storyline of GWTW in order “to explode the romantic, idealized portrait of the antebellum South during and after the Civil War.” Suntrust Bank, 268 F.3d at 1270. Whereas the original novel “describes how both blacks and whites were purportedly better off in the days of slavery,” Randall’s highly transformative parody “flips GWTW’s traditional race roles, portrays powerful whites as stupid or feckless, and generally sets out to demystify GWTW and strip the romanticism from Mitchell’s specific account of this period of our history.” Id. By contrast, despite the inclusion of several elements of parody or satire in the 1979 musical production, Scarlett Fever, the work “as a whole is not a critical commentary” of the original work, but rather a work that fulfills the same “overall function” — “to entertain.” Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Coop. Prods., Inc., 479 F.Supp. 351, 357, 361 (N.D.Ga.1979). The difference, then, is one of substance and not of degree. Viewed in this light, defendants’ use of Big League Sales in their course materials falls short of a transformative use. The book selects, orders, and describes a number of sales techniques with the purpose of educating its readers to become more effective salesmen. The same is true of the WISE and CSI course materials. As the district court noted, “Defendants’ courses and materials merely attempt to provide a user-friendly method of reading and learning from [Big League Sales].” The course materials do not reshape the instructional purpose or character of the book, or cast the book in a different light through a new meaning, message, or expression. Although the course materials adopt a different format, incorporate pedagogical tools such as sales drills, and condense the material in the book, these changes do not alter the educational character of the material taken from the book; they merely emphasize, rather than transform, the overall purpose and function of the book. See also Blanch v. Koons, 467 F.3d 244, 252 (2d Cir.2006) (noting that it would be futile for defendant to argue that a painting is transformative of a photograph, because such a defendant would have “done no more than And a new way to exploit the creative virtues of the original work”); Paramount Pictures Corp., 11 F.Supp.2d at 335 (finding the defendant’s work was not transformative because “it simply retells the story of Star Trek in a condensed version, albeit in a different order”; humorous asides interspersed throughout the summary did “not sufficiently transform” the Star Trek story). The further addition of Scientological terms or concepts likewise does not transform the overall educative purpose of the book. This is particularly true with respect to CSI’s course materials; in the corresponding sales drills, the use of Scientological terms is incidental. For example, students pretend to be registrars (rather than ordinary salesmen) and practice selling “E-meters” or “Academy training” (rather than cars or insurance policies). Accordingly, the first factor favors PL&A. 2. Nature of the Copyrighted Work. The second factor “recognizes that there is a hierarchy of copyright protection” depending upon the nature of the copyrighted work. Suntrust Bank, 268 F.3d at 1271. Works that are “closer to the core of intended copyright protection,” and thus merit greater protection, include original as opposed to derivative works; creative as opposed to factual works; and unpublished as opposed to published works. See Campbell, 510 U.S. at 586, 114 S.Ct. at 1175; Harper & Row, 471 U.S. at 563, 105 S.Ct. at 2232 (“The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.”); id. at 551, 105 S.Ct. at 2226-27 (“Publication of an author’s expression before he has authorized its dissemination seriously infringes the author’s right to decide when and whether it will be made public, a factor not present in fair use of published works.”); Suntrust Bank, 268 F.3d at 1271 (“[OJriginal, creative works are afforded greater protection than derivative works or factual compilations.”). Big League Sales is neither a derivative work nor a factual compilation. It does, however, fall roughly under the rubric of a factual work. But “within the field of fact works, there are gradations as to the relative proportion of fact and fancy. One may move from sparsely embellished maps and directories to elegantly written biography.” Harper & Row, 471 U.S. at 563, 105 S.Ct. at 2232 (quoting Gorman, Fact or Fancy ? The Implications for Copyright, 29 J. Copyright Soc. 560, 561 (1982)) (internal quotation marks omitted). While the underlying sales techniques in Big League Sales are not copyrightable, the original and creative expression in which they are couched may be. Our review of the book reveals that, notwithstanding its informational nature, the book contains a significant “proportion of fact and fancy,” and not merely in the subjective selection and arrangement of sales techniques; Les Dane utilizes original expression that surpasses the bare facts necessary to communicate the underlying technique. Although the techniques are presented by way of personal anecdote, it is hard to believe that such anecdotes feature actual persons and actual retellings of past events and eonver-sations, as opposed to composite characters and experiences served with a healthy dose of fiction. As for the publication status of Big League Sales, defendants characterize the book as out of print, which would tend to favor their claim of fair use. See Triangle Publ’ns, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1176 n. 14 (5th Cir.1980) (“[I]f the copyrighted work is out of print and cannot be purchased, a user may be more likely to prevail on a fair use defense.”). Pursuant to our review of the record, however, we are convinced that the publication status of the book requires further refinement. The book was published in 1971 and was subsequently withdrawn from the market by PL&A in the mid-1990s. Although the book’s withdrawal did not thereby render it an “unpublished” work, we find that the policies underlying the greater protection of unpublished works are implicated to a certain degree and counsel against lumping Big League Sales together with the kind of out-of-print works that might be more susceptible to the defense of fair use. The law provides greater copyright protection for unpublished works in recognition of the author’s property interest in the “commercially valuable right of first publication,” including the “exploitation of prepublication rights, which are valuable in themselves and serve as a valuable adjunct to publicity and marketing,” Harper & Row, 471 U.S. at 562, 555, 105 S.Ct. at 2231, 2228, and because of the author’s “personal interest” in “creative or quality control,” id. at 564, 105 S.Ct. at 2232. By contrast, out-of-print works are generally accorded less copyright protection. The relevant fact is not simply that the work is unavailable for purchase through normal channels. “Any copyright infringer may claim to benefit the public by increasing public access to the copyrighted work.” Id. at 569, 105 S.Ct. at 2235. Rather, that fair use is more likely to apply in the standard scenario of an out-of-print work reflects in large part the assumption that no market harm to the owner will come of the use, as presumably it was lack of demand for the work that led to its demise. Moreover, as it was the market mechanism that caused the work to become unavailable, the countervailing personal interest of the author is not implicated; the author presumably would wish for the work’s continued dissemination. Neither the personal nor the property interests of the author are thus strongly implicated with respect to the typical out-of-print work. Defendants’ characterization of Big League Sales as an out-of-print work obscures the actual nature of the book. It is not “out of print” in the typical sense, as it was the copyright owner’s decision to withhold the book, and not the dearth of sales, that led to its withdrawal from the market. Cf. id. at 553, 105 S.Ct. at 2227 (distinguishing unpublished works from out-of-print works because although “the work is unavailable, this is the result of a deliberate choice on the part of the copyright owner”). Nonetheless, the personal interests of the author are less compelling with respect to the withdrawn work; the author has already had ample opportunity to exercise creative and quality control over his work during the “critical stage” prior to “the first public appearance” of his work. Id. at 555, 105 S.Ct. at 2227-28 (noting the “obvious benefit to author and public alike of assuring authors the leisure to develop their ideas free from fear of expropriation” prior to publication). Moreover, the author of an already-published work is not altogether powerless to exert continued editorial control; the printing of retractions or of subsequent revised editions supply such further opportunity. Unlike the case of an out-of-print work, however, the application of fair use in this context may harm the copyright owner’s market, and not simply because demand for the original work is presumably still extant. PL&A claims that its decision to withdraw the book is accompanied by the reservation of “the decision as to when or whether to make [Big League Sales] public again.” As PL&A indicates, the decision to withdraw a work from the market and then re-release it can be a valuable marketing tool — taking advantage of timing and pent-up market demand, cf. Belushi v. Woodward, 598 F.Supp. 36, 37 (D.D.C.1984) (noting the importance of “carefully orchestrated and costly plans for selling and marketing the book” that “depends upon the coordination of advertising, serialization, author appearances, and reviews, and the release to the public of the book”) — that has been successfully utilized by others. See, e.g., Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co., 145 F.3d 481, 485 (2d Cir.1998) (noting that Walt Disney has re-released the film “Fantasia,” starring Mickey Mouse, for theatrical distribution at least seven times since its original release). We cannot agree, therefore, that the publication status of Big League Sales favors defendants’ claim of fair use. Similarly, the semi-factual nature of Big League Sales neither expands nor constricts the scope of the fair use defense. On balance, therefore, we conclude that this factor is neutral. S. Amount and Substantiality of the Portion Used. Whatever the use, the portion of the copyrighted work that is taken must be reasonable; in other words, this third factor examines whether defendants have “helped themselves overmuch” to the copyrighted work in light of the purpose and character of the use. Campbell, 510 U.S. at 587, 114 S.Ct. at 1175. Like the preceding factors, this factor is intertwined with the fourth factor and partly functions as a heuristic to determine the impact on the market for the original. A book reviewer who copies snippets of a book is likely to increase the demand for the book, but “were a book reviewer to quote the entire book in his review, or so much of the book as to make the review a substitute for the book itself, he would be cutting into the publisher’s market, and the defense of fair use would fail.” Ty, Inc. v. Publ’ns Int’l Ltd., 292 F.3d 512, 517 (7th Cir.2002). Two points bear particular emphasis. First, “the amount and substantiality of the portion used” is measured with respect to the “copyrighted work as a whole,” not to the putatively infringing work. Defendants therefore go astray in focusing on the argument that the copyrighted expression taken from Big League Sales amounts to a small fraction of the 127 pages of the course pack for the Sales Course, the 22 pages of checksheets and 2