The non-transformative commercial use of the entirety of a creative work is an infringement even without proof of damage

In referring to non-transformative appropriations of entire creative works for commercial purposes, Judge Leval has made clear that the failure to show damage will not make the appropriation into a fair use:

Quotation of the original may substantially augment its value and yet be a clear infringement. This would occur, for example, if a famous disc jockey, without authorization, regularly used an obscure song as the theme melody of her program. The value of the copyright for the song would be greatly enhanced. But such use would unquestionably be an infringement. No serious argument can be made that fair use should be found because the value of the copyright was increased, rather than harmed.

Pierre Leval, Fair Use Rescued, 44 U.C.L.A. L. Rev. 1449, 1459 (1997)(Westlaw)