ment has been upheld. Walt Disney Productions v. Air Pirates, 581 F.2d 751, 758 (9th Cir.1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1054, 59 L.Ed.2d 94 (1979). To a large degree, this factor involves the same analysis as that used when determining if the copy is substantially similar to the orig. inal. Sometimes wholesale copying may be permitted, while in other cases taking even a small percentage of the original work has been held unfair use. See Maxtone-Graham. 803 F.2d at 1263. "[W]hat is rele vant is the amount and substantiality of the copyrighted expression that has been used, not the factual content of the material in the copyrighted works." Salinger r. Random House, Inc., 811 F.2d 90, 97 (2d Cir.) (emphasis in original), reh'g denied. 818 F.2d 252, cert. denied, 484 U.S. 890. 108 S.Ct. 213. 98 L.Ed.2d 177 (1987). It is not fair use when more of the original is copied than necessary. Even more critical than the quantity is the qualitative degree of the copying: what degree of the essence of the original is copied in relation to its whole. Id. at 98; see also New Era Publi cations Int'l., 904 F.2d at 159.

Appellants claim that under a parody defense their use of Rogers' work did not exceed the level permitted under the fair use doctrine. As discussed previously, this Circuit has traditionally afforded parodists significant leeway with respect to the ex tent and nature of their copying See Ei smere. 623 F.2d at 253, n. 1; Berlin v ́EC Publications, Inc.. 329 F.2d 541. 545 (28 Cir.), cert. denied, 379 U.S. 822, 85 S Ct. 46. 13 L.Ed.2d 33 (1964). Yet, even under such a defense there are limitations on what constitutes fair use. See MCA & Wilson. 67 F.2d at 185. Here. the essence of Rogers' photograph was copied nearly im toto, much more than would have been necessary even if the sculpture had been a parody of plaintiff's work. In short, it is not really the parody flag that appellants are sailing under, but rather the flag of piracy. Moreover, because we have al ready determined that "String of Puppies" is not a parody of Rogers' work, appellants cannot avail themselves of this heightened tolerance under a parody defense

Nor does Sony Corp. of America, 464 U.S. at 449-50, 104 S.Ct. at 792-93, bear the weight that appellants place on it for the proposition that even 100 percent copying does not preclude a fair use finding. Although correct as a general statement, it applied in Sony to a narrow set of circumstances. Sony's copying equipment (Betamax VCRs) was used by members of the public to record television programs—the copyright of which was owned by plaintiffs. The question was whether Sony's selling of the copying equipment violated plaintiffs' rights under the Copyright Act. The Supreme Court said "no" because "time-shifting" for those watching a television program enlarges the viewing audience, and does not impair plaintiffs' commercial right in the value of the copyright. Hence, no basis existed under the Act upon which plaintiffs could hold Sony liable for selling VCR's to the general public. Id. at 421. 104 S.Ct. at 778.

Those are not the facts found here. Instead. Koons' copying of Rogers' work was the essence of the photograph, and designedly done as the notes to the Italian artisans conclusively reveal. Koons went well beyond the factual subject matter of the photograph to incorporate the very expression of the work created by Rogers. We find that no reasonable jury could conclude that Koons did not exceed a permissible level of copying under the fair use

doctrine

+ Effect of the L'se on the Market Val

we of the Original

The fourth factor looks at the effect of the use on the market value of the original. The Supreme Court in Stewart, 495 U.S. 207 1105 C 1750. 109 L.Ed.2d 184, stated that the fourth factor "is the 'most important, and indeed, central fair use factor.'' Id at 2:10 S.Ct. at 1769 (quoting 3 Simmer 1305[A]); see also Harper & Row. 47: 'S at 566, 105 S.Ct. at 2233. Under this factor a balance must be struck between the benefit gained by the copynght owner when the copying is found an unfair use and the benefit gained by the public when the use is held to be fair. The less adverse impact on the owner, the less

public benefit need be shown to sustain non-commercial fair use. It is plain that where a use has no demonstrable impact on a copyright owners' potential market, the use need not be prohibited to protect the artist's incentive to pursue his inventive skills. Yet where the use is intended for commercial gain some meaningful likelihood of future harm is presumed. See Sony Corp. of America, 464 U.S. at 451, 104 S.Ct. at 793.

A critical inquiry under this factor then is whether defendants Koons and Sonnabend planned to profit from their exploita tion of "Puppies" without paying Rogers for their use of his photo—that is, whether Koons' work is primarily commercial in nature. We have already concluded that it is. In this case, of course, the copy was in a different medium than the original: one was a three-dimensional piece of sculpture, and the other a two-dimensional black and white photo. But the owner of a copyright with respect to this market-factor need only demonstrate that if the unauthorized use becomes "widespread" it would prejudice his potential market for his work. See id: Harper & Row, 471 U.S. at 568, 105 S.Ct. at 2234. The reason for this rule

relates to a central concern of copyright law that unfair copying undercuts demand for the original work and, as an inevitable consequence, chills creation of such works. Hence the inquiry considers not only harm to the market for the original photograph. but also harm to the market for derivative works. It is obviously not implausible that another artist, who would be willing to purchase the rights from Rogers, would want to produce a sculpture like Rogers' photo and, with Koons' work extant, such market is reduced. Similarly, defendants could take and sell photos of "String of Puppies." which would prejudice Rogers potential market for the sale of the "Puppies" notecards, in addition to any other derivative use he might plan.

Further. in discussing this fourth factor. the leading scholar in this area of the law uses an example that closely parallels the facts of the present case and demonstrates the irrelevance of copying in a different medium when analyzing this factor: a mov

ie adaptation is made of a book. Even though the movie may boost book sales, it is an unfair use because of the effect on the potential sale of adaptation rights. 3 Nimmer, § 13.05[B]. The function of demand for each original work of art is a relevant facet in this factor's analysis; that is, fair use permits lyrics or music to be copied in a literary magazine, but where the same material is published in a song sheet magazine, purchased for playing and not simply for reading, it is an unfair use. Id.

Here there is simply nothing in the record to support a view that Koons produced "String of Puppies" for anything other than sale as high-priced art. Hence, the likelihood of future harm to Rogers' photograph is presumed, and plaintiff's market for his work has been prejudiced.

IV Infringing Profits

[14] The next issue concerns Rogers' claim for infringing profits in the amount of $367,000. Under 17 U.S.C. § 504(b) a copyright owner is entitled to recover actual damages suffered as a result of the

infringement as well as apportioned profits The section states: "In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work Alternatively, in place of actual damages and apportioned profits, a copynght owner may elect to recover an award of statutory damages. See 17 U.S.C. §304(0)

In Rogers cross-appeal he asserts, in response to defendants' argument that we lack appellate jurisdiction over this issue, that jurisdiction exists on two independent bases He further contends that there are no issues of fact and that the matter should be remanded simply to enter an award in his favor Although we agree with Rogers that jurisdiction over this aspect of the judgment appealed from exists, we are unable to grant the award he seeks.

The district court stated that deposition and documentary evidence regarding the deductible expenses referred to in § 504(b) are present in the record. We are satisfied that defendants have incurred deductible expenses in some amount and that they should have an opportunity to prove them as an offset to plaintiff's evidence of infringing damages. Further, the amount of actual damages incurred by Rogers, as well as the proper apportionment of Koons' profits between Rogers and Koons, remain to be determined on remand. With respect to the calculation of actual damages, "the primary measure of recovery is the extent to which the market value of the copyright ed work at the time of the infringement has been injured or destroyed by the infringement." Fitzgerald Pub. Co., Inc. v. Baylor Pub. Co., Inc.. 807 F.2d 1110, 1118 (2d Cir.1986). While we leave the ascer tainment of damages to the district court, under the circumstances of this case, we think that a reasonable license fee for the use of "Puppies" best approximates the market injury sustained by Rogers as a result of Koons' misappropriation. See Deltak. Inc. r. Advanced Systems, Inc.. 767 F.2d 357, 360-61 (7th Cir.1985) ("The value of the infringer's use is a permissible basis for estimating actual damages."); Sid & Marty Krofft Television Produc tions, Inc. v. McDonald's Corp., 562 F.2d 1157, 1174 (9th Cir.1977) (same).

On the subject of apportioning profits. the copyright law requires that Koons have the opportunity to establish those "elements of profit attributable to factors other than the copyrighted work." 17 U.S.C. $ 504(b) These "elements" may include Koons' own notoriety and his related ability to command high prices for his work. See Sheldon Metro-Goldwyn Corp.. 309 U.S. 390, 407-09, 60 S.Ct. 681, 687-88. 84 L.Ed. 825 (1940) (considering "the drawing power of the 'motion picture stars' the arustic conceptions... and ... the expert supervision and direction of the various processes which made possible the compos. ite result"): Frank Music Corp. v. MetroGoldwyn-Mayer Inc.. 886 F.2d 1545, 1549 (9th Cir.1989), cert. denied, 494 U.S. 1017. 110 S.Ct. 1321, 108 L.Ed.2d 496 (1990)

("Where a defendant alters infringing material to suit its own unique purposes, those alterations and the creativity behind them should be taken into account in apportioning the profits of the infringing work."); Abend v. MCA, Inc., 863 F.2d 1465, 1478, aff'd sub nom. Stewart v. Abend, 495 U.S. 207, 110 S.Ct. 1750, 109 L.Ed.2d 184. (1990) (considering outstanding performances and brilliant direction); ABKCO Music, Inc. v. Harrisongs Music, 508 F.Supp. 798, 801 (S.D.N.Y.1981), modified, 722 F.2d 988 (2d Cir.1983) (considering "international 'name' " of infringing recording artist). See also 3 Nimmer § 14.03[C]. To the extent that Koons is able to prove that the profits at issue derive solely from his own position in the art world, he should be allowed to retain them.

Finally, we note that Rogers remains at liberty to elect statutory damages in lieu of an award of actual damages and apportioned profits. See 17 U.S.C. § 504(c). In fact, given Koons' wilful and egregious behavior, we think Rogers may be a good candidate for enhanced statutory damages pursuant to 17 U.S.C. § 504(cX2). Fitzgerald Pub. Co., 807 F.2d at 1115. Of course, that determination remains for the district court to make in the first instance.

See

The case must be remanded therefore for the district court to determine the amount of the award, a matter which it had reserved to itself prior to the institution of this appeal.

V The Turn-Over Order

[15] Finally, the turn-over order of the artist's copy is an equitable remedy issued under the broad powers vested in a trial judge under 17 U.S.C. § 503(b) (court may order destruction or other reasonable disposition of infringing copies). In this case, after Judge Haight issued his turn-over order. Koons arranged to ship the fourth or artist's copy of "String of Puppies" from the United States to Germany. We see no abuse of the district court's discretion in directing turn-over and, under the circumstances, the contempt order for the direct violation of the turn-over order was entirely proper.

CONCLUSION

Accordingly, the judgment of the district court is affirmed in all respects.

Military analyst filed pro se age dis crimination suit against defense contractor that had discharged him. The United States District Court for the District of Connecticut. Alan H. Nevas. J., granted contractor's summary judgment motion. Analyst appealed. The Court of Appeals. Altimari, Circuit Judge, held that analyst had established prima facie case of age discrimination, and even raised genuine tr able issues of fact with regard to whether contractor's reasons for discharging him were pretextual, thus making summary judgment for contractor improper

Reversed and remanded.

1. Federal Civil Procedure 2543

In ruling on motion for summary judg. ment, court must resolve all ambiguities and inferences from the underlying facts in favor of the nonmoving party. Fed. Rules Civ.Proc. Rule 56(c), 28 U.S.C.A.

⚫ Judge Kaufman, originally a member of the panel, died on February 1, 1992. The appeal is

2. Federal Courts →776

Court of Appeals reviews district court's grant of summary judgment de

novo.

3. Civil Rights 388

Plaintiff establishes prima facie case of discharge based on age discrimination by showing that he or she is a member of protected age group, was qualified to perform duties required by position, and was discharged, and that discharge occurred under circumstances suggesting that age was a factor. Age Discrimination In Employment Act of 1967, § 2 et seq., 29 U.S.C.A. § 621 et seq.

4. Civil Rights 170

In meeting ultimate burden of demonstrating by preponderance of the evidence that employer's stated reasons for discharge are merely a pretext for discrimination, ADEA plaintiff need not show that age was the only factor in employer's discharge decision but that it was a determinative factor. Age Discrimination In Employment Act of 1967, § 2 et seq., 29 U.S.C.A. § 621 et seq.

5. Federal Civil Procedure

2497

Military analyst established prima facie case of age discrimination in connection with his discharge and even raised genuine triable issues of fact with regard to whether defense contractor's reason for that discharge were pretextual, thus making summary judgment for contractor in age discrimination suit improper. Age Discrimination In Employment Act of 1967, § 2 et seq., 29 U.S.C.A. § 621 et seq.; Fed.Rules Civ.Proc. Rule 56(c), 28 U.S.C.A.

Burt L. Levin, pro se.

Marc L. Zaken, Hartford, Conn. (Jay E. Bovilsky, William H. Narwold, Cummings & Lockwood, of counsel), for defendantappellee.

Before: MINER and ALTIMARI, Circuit Judges."

being decided by the remaining members of the panel pursuant to Local Rule § 0.14(b).

in April of 1987, which is more than three years after the last loan was made to those corporations. The action is therefore timebarred. See Fleet Factors, 114 A.D.2d at 997, 495 N.Y.S.2d at 436.

Plaintiffs argue that the statute of limitations must be tolled because the loans to the corporations were made at a 15% rate of interest which continues to accrue until the present date. They argue that the statute of limitations is tolled until they can demand that the entire debt, including interest, must be paid and that since the interest continues to accrue, such a demand may not be made. No authority has been cited for this novel proposition which would extend a statute of limitations indefinitely in any case where a borrower defaults upon a debt that continues to bear interest. Indeed, to accept such a contention would entirely subvert the policies of repose served by statutes of limitations. Accordingly, the Court rejects plaintiffs' argument.3

CONCLUSION

For the reasons stated above, defendant's motion for summary judgment is granted and the action is dismissed. The Clerk of the Court is directed to close the above-captioned action.

It is SO ORDERED.

KEY NUMBER SYSTEM

but must show by affidavit or other evidentiary material a genuine issue of fact which would justify a trial. See Fed.R.Civ.P. 56(e). Here, plaintiffs' testimony and documents show that the last loan to the corporations was November 13, 1982, not 1985. Moreover, both plaintiffs were requested to supplement their discovery responses if they recalled any other loans in addition to the ones they identified, See Deposi tion of Martin Cohen ("M. Cohen Dep.") at 6162 (annexed to Abrahams Aff. at Ex. D); Deposi. tion of Irene Cohen ("I. Cohen Dep.") at 12-14 (annexed to Abrahams Aff. at Ex. E), but have not produced any evidence of additional loans. 5. Immediately before defendant filed his motion, but after the motion had been discussed at

1. Copyrights and Intellectual Property 53.1

Reproduction of copyrighted photograph in sculpture form did not preclude finding of copyright infringement; sculp ture was derivative work based upon photograph. 17 U.S.C.A. §§ 101, 106, 106(2).

a Telephone Pre-Motion Conference, plaintiffs wrote to the Court seeking the Court's advice regarding procedures for taking a written deposition of defendant. However, in view of the fact that plaintiff was and is aware of all of the facts relevant to the defendant's defense that the statute of limitations bars his action, any further discovery of the defendant by written depo sition or otherwise could add nothing to the disposition of this motion on that ground. See Burlington Coat Factory Warehouse Corp. v. Esprit de Corp., 769 F.2d 919, 925-27 (2d Cir.1985); Federal Republic of Germany v. Elicofon, 536 F.Supp. 813, 827-28 (E.D.N.Y.1978), aff'd, 678 F.2d 1150 (2d Cir.1982).