235 F.3d 18 (1st Cir. 2000)
SIXTO NuNEZ, Plaintiff, Appellant,v.CARIBBEAN INTERNATIONAL NEWS CORP. (EL VOCERO DE PUERTO RICO), Defendant, Appellee.
No. 99-2266.
United States Court of Appeals, For the First Circuit.
Heard Nov. 15, 2000.Decided December 21, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Jaime Pieras, Jr., U.S. Senior District Judge.[Copyrighted Material Omitted]
Jose Guillermo Gonzalez, with whom Jose Manuel Urrutia-Velez,  was  on brief, for appellant.
Juan R. Marchand-Quintero, with whom Francisco Ortiz-Santini and Juan R. Marchand-Quintero Law Offices, were on brief, for appellee.
Before Torruella, Chief Judge, Lynch, Circuit Judge, and Garca-Gregory,* District Judge.
TORRUELLA, Chief Judge.


1
This appeal raises the question  whether the reproduction of independently newsworthy photographs  without permission is a "fair use" pursuant to 17 U.S.C. § 107 when  those photographs were acquired and reproduced in good faith and the  work had already been distributed on a limited basis.


2
Because we find that such use is fair, we affirm the district  court's grant of summary judgment.

BACKGROUND

3
Appellant Nunez, a professional photographer, took several  photographs of Joyce Giraud (Miss Puerto Rico Universe 1997) for use in  Giraud's modeling portfolio.  Nunez then distributed the photographs to  various members of the Puerto Rico modeling community in accordance  with normal practice.  After the photographs had been taken, some  controversy arose over whether they were appropriate for a Miss Puerto  Rico Universe, based on the fact that Giraud was naked or nearly naked  in at least one of the photos.  A local television program displayed  the photographs on screen and asked random citizens whether they  believed the photographs were "pornographic."  Giraud was interviewed  by two local television stations as to her fitness to retain the Miss  Universe Puerto Rico crown.  El Vocero then obtained several of the  photographs through various means.  Over the next week, without Nunez's  permission, three of his photographs appeared in El Vocero, along with  several articles about the controversy.


4
Nunez claimed that the reprint of his photographs in El  Vocero without his permission violated the Copyright Act of 1976.  The  district court applied the fair use test of 17 U.S.C. § 107.1  Focusing  on the "newsworthy" nature of the photographs, the difficulty of  presenting the story without the photographs, and the minimal effect on  Nunez's photography business, the court concluded that El Vocero had  met the requirements of § 107 and dismissed the complaint with  prejudice.

DISCUSSION
A.  Standard of Review

5
Fair use is a mixed question of law and fact.  Harper & Row,  Publishers, Inc. v. The Nation Enters., 471 U.S. 539, 560 (1985).  When  the district court, as here, has found sufficient facts to evaluate  each of the statutory factors, we need not remand but may determine  fair use as a matter of law.  Id.  Although the  factors enumerated by  Congress in § 107 are not meant to be exclusive, they are especially  relevant to the overall fair use inquiry.  Id.  We thus examine each  factor in turn.  The ultimate determination of whether a use is fair  requires a case-by-case analysis in which the four factors are to be  "weighed together in light of the purposes of copyright."  Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994).

B.  The Purpose and Character of the Use

6
The first factor in the fair use inquiry is "the purpose and  character of the use, including whether such use is of a commercial  nature or is for nonprofit educational purposes." 17 U.S.C. § 107(1). The focus of this analysis asks "whether the new work merely  'supersedes the objects' of the original creation or instead adds  something new."  Campbell, 510 U.S. at 579 (quoting Folsom v. Marsh, 9  F.Cas. 342, 348 (C.C.D. Mass. 1841)).  The more "transformative" the  new work, the less the significance of factors that weigh against fair  use, such as use of a commercial nature.  Id.


7
The district court found that appellee Caribbean both sought  to "inform" and "gain commercially," and that the two purposes offset  each other in the fair use analysis.  For a commercial use to weigh  heavily against a finding of fair use, it must involve more than simply  publication in a profit-making venture.2  See id. at 584; American  Geophysical Union v. Texaco, 60 F.3d 913, 921 (2d Cir. 1994)  (expressing wariness of emphasis on commercial use because most  secondary users seek commercial gain). After all, activities such as  news reporting (which is explicitly provided for in the preamble to §  107) "are generally conducted for profit in this country."  Campbell,  510 U.S. at 584 (quoting Harper & Row, 471 U.S. at 592).  We agree with  the district court that the commercial use here, however, constitutes  more than mere reproduction for a profitable use.  The photographs were  used in part to create an enticing lead page that would prompt readers  to purchase the newspaper.  Thus El Vocero used the photograph not only  as an ordinary part of a profit-making venture, but with emphasis in an  attempt to increase its revenue.  Cf. Haberman v. Hustler Magazine,  Inc., 626 F. Supp. 201, 210 (D. Mass. 1986) (pictures not displayed on  magazine cover or advertising, but reproduced in regular feature  section).  For this reason, the commercial nature of the reproduction  counsels against a finding of fair use.


8
However, the district court also found that the pictures were  shown not just to titillate, but also to inform.  Puerto Ricans were  generally concerned about the qualifications of Giraud for Miss Puerto  Rico Universe, as is demonstrated by the several television shows  discussing the photographs.  This informative function is confirmed by  the newspaper's presentation of various news articles and interviews in  conjunction with the reproduction.  Appellee reprinted the pictures not  just to entice the buying public, but to place its news articles in  context; as the district court pointed out, "the pictures were the  story."  It would have been much more difficult to explain the  controversy without reproducing the photographs.  And although such an  explanatory need  does not always result in a fair use finding, seeIowa State Univ. Research Found. v. American Broad. Cos., Inc., 621  F.2d 57, 60 n.6 (2d Cir. 1980), it weighs in the favor of appellee.


9
This is not to say that appellee's use of the photographs was  necessarily fair merely because the photographs were used for news  purposes, nor does it establish a general "newsworthiness" exception.  First, the Supreme Court has specifically frowned upon such an  exception.  See Harper & Row, 471 U.S. at 561 ("The fact that an  article arguably is 'news' and therefore a productive use is simply one  factor in a fair use analysis.").  Second, the problem with such an  approach (as the Supreme Court pointed out) is that it provides an  incentive for the infringer to create "news,"  so that its infringement  falls within the exception.  See id. at 562.  Were a "newsworthy" use  per se fair, journalists and news photographers would be left with  little assurance of being rewarded for their work.  See id. at 558.  It  suffices to say here that El Vocero did not manufacture newsworthiness,  as it sought not to "scoop" appellant by publishing his photograph, but  merely to provide news reporting to a hungry public.  And the fact that  the story is admittedly on the tawdry side of the news ledger does not  make it any less of a fair use.  See id. at 561 ("Courts should be  chary of deciding what is and what is not news.").


10
Rather, what is important here is that plaintiffs'  photographs were originally intended to appear in modeling portfolios,  not in the newspaper; the former use, not the latter, motivated the  creation of the work.  Thus, by using the photographs in conjunction  with editorial commentary, El Vocero did not merely "supersede[] the  objects of the original creation[s]," but instead used the works for "a  further purpose," giving them a new "meaning, or message."  Campbell,  510 U.S. at 579.  It is this transformation of the works into news -  and not the mere newsworthiness of the works themselves - that weighs  in favor of fair use under the first factor of § 107.  See id. (central  inquiry is whether defendant's use is transformative"); see also Sony  Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 478  (1984) (Blackmun, J., dissenting) (key question is whether defendant's  use "result[s] in some added benefit to the public beyond that produced  by the first author's work").


11
Appellee's good faith also weighs in its favor on this prong  of the fair use test.  See Harper & Row, 471 U.S. at 562-63; Haberman,  626 F. Supp. at 211.  First, El Vocero attributed the photographs to  Nunez. Although acknowledgment does not excuse infringement, the  failure to acknowledge counts against the infringer.  See Narell v. Freeman, 872 F.2d 907, 914 (9th Cir. 1989).  Second, El Vocero obtained  each of the photographs lawfully.  An unlawful acquisition of the  copyrighted work generally weighs against a finding of fair use; no  such theft occurred here.  See Haberman, 626 F. Supp. at 211.  Third,  as the district court explicitly found, El Vocero did not aim to use  the photographs to compete with Nunez, nor to supplement his right of  first production, as the photographs had already been distributed to  the modeling community.  See id. at 212.  Finally, appellee asserts  that it believed in good faith that the photographs were available for  general, unrestricted circulation and redistribution, and appellant  offers little evidence to rebut this assertion.


12
In sum, the highlighting of the photograph on the front cover  of El Vocero exposes the commercial aspect of the infringing use, and  counts against the appellee.  However, the informative nature of the  use, appellee's good faith, and the fact that it would have been  difficult to report the news without reprinting the photograph suggest  that on the whole, this factor is either neutral or favors a finding of  fair use.

C.  Nature of the Copyrighted Work

13
The second factor focuses on "nature of the copyrighted  work."  17 U.S.C. § 107(2).  Courts have generally considered two  aspects of the work in evaluating this factor: first, the extent to  which it is a creative work enjoying broader copyright protection as  opposed to a factual work requiring broader dissemination, see  Harper  & Row, 471 U.S. at 563-64, and second, whether it is unpublished, in  which case the right of first publication is implicated, see id. at  564.


14
The district court suggested, and we agree, that Nunez's  pictures could be categorized as either factual or creative: certainly,  photography is an art form that requires a significant amount of skill;  however, the photographs were not artistic representations designed  primarily to express Nunez's ideas, emotions, or feelings, but instead  a publicity attempt to highlight Giraud's abilities as a potential  model.  Cf. Haberman, 626 F. Supp. at 211 (reproduction of surrealistic  art in magazine, where creativity counted against fair use finding). Given the difficulty of characterizing the "nature" of the photographs,  we find that the impact of their creativity on the fair use finding is  neutral.


15
This reproduction, however, does not threaten Nunez's right  of first publication.  Although these photographs had not before been  published in a book or public portfolio, they were hardly confidential  or secret, as was the manuscript in Harper & Row prior to its serial  publication.  Giraud had commissioned the pictures for the very purpose  of semi-public dissemination.  Moreover, their release had created a  scandal, and the photographs had already been shown on the evening news  by the time of their publication in El Vocero.  Finally, Nunez had not  sought to control further dissemination during his limited  distribution: he had not registered the copyright prior to publication  in El Vocero, required recipients to sign non-disclosure or no-resale  agreements, or even sought oral promises from recipients not to re-distribute the photographs.


16
In sum, this factor favors appellee.

D.  Amount and Substantiality of the Use

17
The third factor is the "amount and substantiality of the  portion used in relation to the copyrighted work as a whole." 17 U.S.C.  § 107(3).  However, such an inquiry must be a flexible one, rather than  a simple determination of the percentage used.  See Campbell, 510 U.S.  at 588-89 (acknowledging that for a parody to be effective, it had to  take enough material to evoke the original); Harper & Row, 471 U.S. at  565-67 (emphasizing the importance rather than the amount of material  copied).  The "inquiry must focus upon whether 'the extent of . . .  copying' is consistent with or more than necessary to further 'the  purpose and character of the use.'"  Castle Rock, 150 F.3d at 144  (quoting Campbell, 510 U.S. at 586-87).  In this case, El Vocero  admittedly copied the entire picture; however, to copy any less than  that would have made the picture useless to the story.  As a result,  like the district court, we count this factor as of little consequence  to our analysis.  Cf. Amsinck v. Columbia Pictures Indus., Inc., 862 F.  Supp. 1044, 1050 (S.D.N.Y. 1994) (fact that entire mobile included in  film did not hurt defendants).

E.  Effect on the Market

18
The fourth statutory factor requires us to consider "the  effect of the use upon the potential market for or value of the  copyrighted work." 17 U.S.C. § 107(4).  The district court, when  assessing this factor, examined "whether [Nunez's] business as a  photographer could be hurt," rather than "the market for the pictures,"  and concluded that no evidence of damage to Nunez's overall business  had been adduced.  We cannot agree with this approach.  The statute  explicitly points to the "potential market for or value of the  copyrighted work."  17 U.S.C. § 107(4) (emphasis added).  This  statutory language suggests that we should limit our analysis to the  effect of the copying on the market for the reproduced photographs. The overall impact to Nunez's business is irrelevant to a finding of  fair use.  See Harper & Row, 471 U.S. at 568.  In fact, to the extent  that the copying damages a work's marketability by parodying it or  criticizing it, the fair use finding is unaffected.  See Campbell, 510  U.S. at 590.  In short, this factor is "concerned with secondary uses  that, by offering a substitute for the original, usurp a market that  properly belongs to the copyright holder."  Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 110 (2d Cir. 1998).


19
Our inquiry, therefore, is restrained to: (i) "the extent of  market harm caused by the particular actions of the alleged infringer";  and (ii) "whether unrestricted and widespread conduct of the sort  engaged in by the defendant . . . would result in a substantially  adverse impact on the potential market."  Id.  In other words, we  examine the effect of this publication on the market, and we also  determine whether wide-scale reproduction of professional photographs  in newspapers (for similar purposes) would in general affect the market  for such photography.  As to the first, we find little impact on the  market for these specific pictures.  The district court noted that the  purpose of dissemination of the pictures in question is not to make  money, but to publicize; they are distributed for free to the  professional modeling community rather than sold for a profit.3  The  fact that a relatively poor reproduction was displayed on the cover of  a newspaper should not change the demand for the portfolio. If  anything, it might increase it.  Cf. Amsinck, 862 F. Supp. at 1049  (noting possible increase in demand after reproduction); Haberman, 626  F. Supp. at 212-14 (same).  The analysis is comparable in the abstract:  even if there was widespread conduct of this sort, it would have little  effect on the demand for disseminated pictures because a newspaper  front page is simply an inadequate substitute for an 8" x 10" glossy.


20
However, the potential market for the photographs might also  include the sale to newspapers for just this purpose: illustrating  controversy.  It is true that El Vocero's use of the photograph without  permission essentially destroys this market. There is no evidence,  however, that such a market ever existed in this case.  Nunez does not  suggest that he ever tried to sell portfolio photographs to newspapers,  or even that he had the right to do so under the contract with Giraud. See Ringgold v. Black Entm't Television, Inc., 126 F.3d 70, 81 (2d Cir.  1997).  Although it is more likely that other photographers do engage  in such sales, and thus that widespread conduct of the type committed  by El Vocero could destroy the newspaper sale market as a whole, we  note again the context of this case.  Surely the market for  professional photographs of models publishable only due to the  controversy of the photograph itself is small or nonexistent.  SeeInfinity, 150 F.3d at 111 (the market must be "likely to be  developed"); Ringgold, 126 F.3d at 81 (avoiding the problem of  circularity in this factor by considering only "traditional,  reasonable, or likely to be developed" markets).


21
Although our analysis of the effect of this reproduction on  the market is slightly different than that conducted by the district  court, we reach the same result.  Because the only discernible effect  of the publication in El Vocero was to increase demand for the  photograph, and because any potential market for resale directly to the  newspaper was unlikely to be developed, this factor favors a finding of  fair use.

CONCLUSION

22
In sum, the first, second, and fourth factors generally favor  a finding of fair use.  The third factor does not seem particularly  relevant in this context.  Again, we note that the finding of fair use  always entails a case-by-case analysis, see Campbell, 510 U.S. at 578,  and the present case is no exception.  Unauthorized reproduction of  professional photographs by newspapers will generally violate the  Copyright Act of 1976; in this context, however, where the photograph  itself is particularly newsworthy, the newspaper acquired it in good  faith, and the photograph had already been disseminated, a fair use  exists under 17 U.S.C. § 107.  As a result, we affirm the decision of  the district court.



Notes:


*
   Of the District of Puerto Rico, sitting by designation.


1
   In full, 17 U.S.C. § 107 provides:
Notwithstanding the provisions of sections 106 and  106A, the fair use of a copyrighted work, including such use  by reproduction in copies or phonorecords or by any other  means 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.
The fact that a work is unpublished shall not itself  bar a finding of fair use if such finding is made upon  consideration of all of the above factors.


2
   Before the Supreme Court's decision in Campbell, several courts had  suggested that any commercial use was presumptively unfair.  SeeCampbell, 510 U.S. at 572, 577-78.  As the Court noted, however, to  follow such a presumption would contradict the examples of fair use  provided for in the preamble to § 107.  Id. at 584.


3
   Although photographs such as these are generally commissioned  directly by the model or the model's agent, and paid for accordingly,  these particular photographs were taken as a favor to Giraud's agent.


