dissenting:

The majority concedes that Moral Majority, Inc., Old Time Gospel Hour, and Jerry Falwell distributed or displayed Hustler Magazine’s copyrighted ad parody in an effort to raise money for themselves. Despite this commercial purpose, the majority concludes that their copying constituted “fair use.” I disagree.

Section 107 of the Copyright Act of 1976 specifies four factors this court must consider in analyzing the merits of a fair use defense:

17 U.S.C. § 107 . The proposed opinion analyzes these factors and concludes that the first and fourth factors support a finding of fair use while the second and third factors militate against such a finding. The opinion then summarily concludes “[wjeighing all four factors, we find that even after resolving all factual issues in favor of Hustler, the district court did not err in determining that the Defendants’ use constituted fair use and granting summary judgment.” Opinion at 1156. Since the key to this conclusion lies with factors one and four, I will focus on the majority’s analysis of those two factors.

A. The First Factor: the Purpose and Character of the Defendants’ Use

The opinion acknowledges that the parody was distributed by the defendants as an integral part of a financial appeal. Thus, the use is presumptively unfair. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 449 , 104 S.Ct. 774, 793 , 78 L.Ed.2d 574 (1984). The defendants attempt to rebut this presumption by claiming that their primary reason for sending the copies was to refute the personal attack upon Falwell and to make a political comment about pornography.

Assuming that the defendants were also motivated by such purposes, their actions in publishing the entire parody went beyond the limited boundaries of the fair use defense. As conceded by the majority, the defendants could copy only so much of the work as was necessary to permit understandable comment. There is no reason why Falwell needed to copy the entire parody to rebut the personal attack or to comment on what the “pornographers” were publishing. A summary of the parody, such as that contained in the factual summary of the majority opinion, would have sufficed. Quite clearly, the only reason for copying the entire parody would be to increase the chances that the parody would arouse such moral indignation that the members would be more likely to send in financial contributions to help support Falwell’s lawsuit against Hustler or to support his radio and television network. Accordingly, the majority’s conclusion that Falwell did not copy more of the parody than was reasonably necessary to make an understandable comment confuses Falwell’s true purpose in copying the entire work.

Moreover, I disagree with the legal conclusion by the majority that “the public interest in allowing an individual to defend *1158 himself against * * * derogatory personal attacks serves to rebut the presumption of unfairness.” Opinion at 1153. Such a sweeping generalization finds no support in either the case law or the purposes underlying the fair use defense. On the contrary, it is clear that the public’s interest in reading an author’s work is not alone sufficient to override the protections granted under the federal copyright laws. In Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 , 105 S.Ct. 2218 , 85 L.Ed.2d 588 (1985), the Court held that a magazine’s act of publishing verbatim excerpts from the unpublished memoirs of former President Gerald R. Ford did not constitute fair use. The Court rejected the magazine’s contention that the newsworthiness of the contents of the manuscript independently justified its unauthorized copying of the expression prior to publication by the copyright holder. Id. 105 S.Ct. at 2229 ; see Iowa State University Research Foundation, Inc. v. American Broadcasting Cos., Inc., 621 F.2d 57, 61 (2d Cir.1980) (“The fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance.”). It is not a license for assertedly religious or “moral” theft, either. Accordingly, Falwell’s alleged purpose of defending himself against the personal attack made by Hustler in its ad parody, if that were indeed his purpose, might certainly constitute some factor in the fair use analysis, but it does not excuse the infringement of Hustler’s copyright. Falwell’s claim, however, is belied by the manifestly financial gain which he hastened to secure.

As previously noted, Falwell went beyond simply criticizing and commenting on the ad parody and actively sought to exploit the emotional impact of the work to raise money. This commercial use of the copyrighted work is a separate factor that weighs against a finding of fair use. The fact that Falwell also had other motives in publishing the parody does not prevent the operation of this factor for “[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, 105 S.Ct. at 2231-32 . The defendants published Hustler’s parody in the hope of milking the possible indignation it would arouse for their own personal monetary benefit. This purpose weighs strongly against a conclusion that the defendants’ use of the parody was a fair use.

B. The Fourth Factor: Effect Upon Potential Market or Value

The majority also incorrectly analyzes the fourth factor listed in section 107 — the effect upon plaintiff’s potential market. This factor is concerned with whether if the challenged use “should become widespread, it would adversely affect the potential market for the copyrighted work.” Sony Corp., 464 U.S. at 451 , 104 S.Ct. at 793 .

If Falwell’s actions were to become widespread such that individuals were sending out copies of the ad parody to the public in order to solicit money to support campaigns against “the pornographers” such as Larry Flynt, then quite clearly the future potential market for the parody would be diminished. 1 This is because the act of *1159 distributing copies of the entire copyrighted work to the public would fulfill the demand of the original. See Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 96 (2d Cir.1977), cert. denied, 434 U.S. 1014 , 98 S.Ct. 730 , 54 L.Ed.2d 759 (1978). “Isolated instances of minor infringements, when multiplied many times, become in the aggregate a major inroad on copyright that must be prevented.” Harper & Row, 105 S.Ct. at 2235 (quoting S.Rep. No. 94-473, p. 65 (1975)).

Under what I believe to be the only sensible analysis, all four factors weigh against a finding of fair use. Consequently, I would reverse the district court’s decision and remand the case with directions that it enter summary judgment in favor of Hustler.

. I have problems with the district court’s conclusion, accepted by the majority opinion, that Moral Majority or Old Time Gospel Hour members would probably not be counted among Hustler’s readers. If such a showing was made or Hustler stipulated to this fact, then such a conclusion can be accepted. Otherwise, I do not think a court can take judicial notice of such a matter. Furthermore, Hustler’s future licensing rights with regard to the parody may be impaired nonetheless since these Moral Majority or Old Time Gospel Hour members may count themselves readers of a different publication which could contain this parody, e.g., a compilation of parodies of public figures which contains this parody, albeit probably a toned down version; Or the members, if they had not already seen the entire parody, may have become curious enough about its contents as to break down and purchase the back copy of Hustler magazine or a future copy wherein the magazine had republished the parody. Or, per *1159 haps the fact that the parody was included in that back copy might tempt some persons to use that fact as a justification for looking into the other contents of the magazine — in order to comprehend how shocking was the setting in which the parody appeared.