II. Standard of Review for Copyright and Trademark Infringement

      Summary judgment is appropriate only if the moving party can show that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The court "must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party." Garza v. Marine Transp. Lines, Inc., 861 F.2d 23, 26 (2d Cir. 1988). Although "fair use is a mixed question of law and fact," Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 560, 85 L. Ed. 2d 588, 105 S. Ct. 2218 (1985), this court has on a number of occasions "resolved fair use determinations at the summary judgment stage" where, as here, there are no genuine issues of material fact. Wright v. Warner Books, Inc., 953 F.2d 731, 735 (2d Cir. 1991); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. 1998) (affirming summary judgment awarded to defendants on basis of fair use defense); Harper & Row, 471 U.S. at 560. We review the district court's legal conclusions de novo and its findings of fact for clear error. See American Geophysical Union v. Texaco Inc., 60 F.3d 913, 918 (2d Cir. 1995).

III. Parody, Fine Art, and Fair Use

      Finally, Kostabi asserts that the Kostabi Dalis are protected by the fair use doctrine, and that the action should be dismissed on that basis. The doctrine of fair use is judicially created and dates to the eighteenth century beginnings of copyright. See Burnett v. Chatwood, 2 Meriv. 441, 35 Eng. Rep. 1008-09 (Ch. 1720); Gyles v. Wilcox, 26 Eng. Rep. 489 (Ch. 1740), Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841). The doctrine was codified in the Copyright Act of 1976. See 17 U.S.C. § 107 (1994). Section 107 describes the purposes for which the doctrine may be invoked, including "comment" and "criticism," id., as well as a list of factors that courts now commonly consider in determining whether a use is "fair." These factors are (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the work used, and (4) the effect of the use on the market for the original. See id.

      Section 107 does not specify that "parodies" are among the categories of potentially "fair" uses, we have traditionally

IV. The Fair Use Defense in Campbell

      "From the infancy of copyright protection," the fair use doctrine "has been thought necessary to fulfill copyright's very purpose, 'to promote the Progress of Science and useful Arts.'" Id., at 575, (quoting U.S. Const., art. I, § 8, cl. 8). In Campbell, defendants Luther R. Campbell, Christopher Wongwon, Mark Ross, and David Hobbs, members of the rap music group 2 Live Crew, created a song entitled "Pretty Woman" that parodied "Oh, Pretty Woman," a song copyrighted by Roy Orbison. Id., at 571-72. Copyright owner Acuff-Rose Music, Inc., sued defendants for copyright infringement. Id., at 573. The District Court for the Middle District of Tennessee granted summary judgment in favor of defendants, finding that 2 Live Crew's song was a fair use parody of the Orbison song and that the commercial purpose of 2 Live Crew's song was not a bar to a finding of fair use. Id. The Court of Appeals for the Sixth Circuit reversed, holding that a finding of fair use was barred by the song's commercial character and excessive borrowing of the Orbison song. Id., at 573-74.

      In reversing the Court of Appeals' decision, the United States Supreme Court held that a parody's commercial nature is not a bar to a finding of fair use and is in fact only one element to be considered in a fair use analysis. It held that the Court of Appeals gave insufficient consideration to the nature of a parody in assessing the degree to which a parody copies. Id., at 572, 594. Campbell clarified the fair use defense in general and its application to parodies in particular. The Court found that the fair use determination "calls for case-by-case analysis," id. at 577, and "is not to be simplified with bright-line rules." Id. The Court further clarified that all four of the statutory factors "are to be explored, and the results weighed together." Id. at 578.

      Campbell clarified that the first fair use factor to consider is "the purpose and character of the [allegedly infringing] use, including whether such use is of a commercial nature or is for nonprofit educational purposes." 17 U.S.C. § 107(1). It asserted that no one of the

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