now being used as a trademark by Chrysler. Cf. Crescent Tool Co. v. Kilborn & Bishop Co., 247 F. 299 (2d Cir.1917) (protecting plaintiff's use of the trademark "Crescent," which originally described a certain kind of wrench). [5] A trademark may even be used lawfully in a way that many people, including the trademark owner, may find offensive. Consider Girl Scouts v. Personality Posters Mfg. Co., 304 F.Supp. 1228 (S.D.N.Y.1969): Defendants published a poster showing "a smiling girl dressed in the well- known green uniform of the Junior Girl Scouts, with her hands clasped above her protruding, clearly pregnant abdomen. The caveat `BE PREPARED' appears next to her hands." Id. at 1230. The court found no infringement: "[R]ational analysis of the situation does not indicate a likelihood that the public will believe that the Girl Scouts are the authors of the poster to which they understandably take such violent exception." Id. at 1231. [6] The common law has recognized a fair use defense to claims of copyright infringement involving relatively harmless violations for centuries. See Gyles v. Wilcox, 26 Eng.Rep. 489, 490 (Ch. 1740); William F. Patry, The Fair Use Privilege in Copyright Law 6-17 (1985). While fair use has been part of American copyright law for over a century and a half, see Folsom v. Marsh, 9 F.Cas. 342, 344-49 (C.C.D.Mass.1841) (Story, J.), and Gray v. Russell, 10 F.Cas. 1035, 1038- 39 (C.C.D.Mass.1839) (Story, J.), the doctrine was only codified in the 1976 revision of the copyright laws. Pub.L. No. 94-553, 90 Stat. 2546 (1976); see 17 U.S.C. § 107. Sound policies underlie the fair use defense. The copyright holder has a property interest in preventing others from reaping the fruits of his labor, not in preventing the authors and thinkers of the future from making use of, or building upon, his advances. The process of creation is often an incremental one, and advances building on past developments are far more common than radical new concepts. See Lewis Galoob Toys, Inc. v. Nintendo, Inc., 964 F.2d 965 (9th Cir.1992). Where the infringement is small in relation to the new work created, the fair user is profiting largely from his own creative efforts rather than free-riding on another's work. A prohibition on all copying whatsoever would stifle the free flow of ideas without serving any legitimate interest of the copyright holder. [7] Thus, a soft drink competitor would be entitled to compare its product to Coca-Cola or Coke, but would not be entitled to use Coca-Cola's distinctive lettering. See Volkswagenwerk, 411 F.2d at 352 ("Church did not use Volkswagen's distinctive lettering style or color scheme, nor did he display the encircled `VW' emblem"); cf. Walt Disney Productions v. Air Pirates, 581 F.2d 751, 758 (9th Cir.1978) (taking "more than was necessary" can defeat copyright fair use defense). [8] The New Kids effectively concede as much. See Opening Brief at 17 n. 11 ("plaintiffs showed a genuine issue of material fact as to whether defendants' use of the New Kids' name and likeness was likely to cause confusion regarding [the] existence of such an `implied endorsement'"); Reply Brief at 14 (same). [9] Consider, for example, a cartoon which appeared in a recent edition of a humor magazine: The top panel depicts a man in medieval garb hanging a poster announcing a performance of "The New Kids on the Block" to an excited group of onlookers. The lower panel shows the five New Kids, drawn in caricature, hands tied behind their backs, kneeling before "The Chopping

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