Editing Fair use (section)

=== 1. Purpose and character of the use ===
The first factor is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new.

In the 1841 copyright case ''[[Folsom v. Marsh]]'', [[Joseph Story|Justice Joseph Story]] wrote:
{{blockquote|"[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a [[piracy]]."<ref>{{cite court|litigants=Harper & Row v. Nation Enterprises|vol=723 |reporter=F.2d |opinion=195 |court=2d Cir.|date=1985-05-20|url=https://caselaw.findlaw.com/us-supreme-court/471/539.html|access-date=2018- 01-01}}</ref>}}

A key consideration in later fair use cases is the extent to which the use is ''[[transformation (law)|transformative]]''. In the 1994 decision ''[[Campbell v. Acuff-Rose Music Inc]]'',<ref name="510 US 569" /> the U.S. Supreme Court held that when the purpose of the use is transformative, this makes the first factor more likely to favor fair use.<ref name=Unbundling>{{cite journal|last1=Samuelson|first1=Pamela|title=Unbundling Fair Uses|journal=Fordham Law Review|date=2009|volume=77|url=http://fordhamlawreview.org/assets/pdfs/Vol_77/Samuelson2_Vol_77_Apr.pdf|access-date=November 18, 2015|archive-date=January 19, 2013|archive-url=https://web.archive.org/web/20130119052441/http://fordhamlawreview.org/assets/pdfs/Vol_77/Samuelson2_Vol_77_Apr.pdf|url-status=dead}}</ref> Before the ''Campbell'' decision, federal Judge Pierre Leval argued that transformativeness is central to the fair use analysis in his 1990 article, [[Toward a Fair Use Standard]].<ref name="Leval">{{cite journal|last=Leval|first=Pierre N.|year=1990|title=Toward a Fair Use Standard|journal=[[Harvard Law Review]]|volume=103|issue=5|pages=1105–1136|doi=10.2307/1341457|jstor=1341457}}</ref> ''[[Blanch v. Koons]]'' is another example of a fair use case that focused on transformativeness. In 2006, [[Jeff Koons]] used a photograph taken by commercial photographer [[Andrea Blanch]] in a collage painting.<ref>{{cite court|litigants=Blanch v. Koons|vol=467|reporter=F.3d|opinion=244|court=2d Cir.|date=October 26, 2006|url=https://caselaw.findlaw.com/us-2nd-circuit/1374144.html|access-date=November 15, 2015|archive-url=https://web.archive.org/web/20171209072319/http://caselaw.findlaw.com/us-2nd-circuit/1374144.html|url-status=live}}</ref> Koons appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. Koons prevailed in part because his use was found transformative under the first fair use factor.

The ''Campbell'' case also addressed the subfactor mentioned in the quotation above, "whether such use is of a commercial nature or is for nonprofit educational purposes." In an earlier case, ''[[Sony Corp. of America v. Universal City Studios, Inc.]]'', the Supreme Court had stated that "every commercial use of copyrighted material is presumptively ... unfair." In ''Campbell'', the court clarified that this is not a "hard evidentiary presumption" and that even the tendency that commercial purpose will "weigh against a finding of fair use ... will vary with the context." The ''Campbell'' court held that hip-hop group [[2 Live Crew]]'s parody of the song "[[Oh, Pretty Woman]]" was fair use, even though the parody was sold for profit. Thus, having a commercial purpose does not preclude a use from being found fair, even though it makes it less likely.<ref name=Reclaiming />

Likewise, the noncommercial purpose of a use makes it more likely to be found a fair use, but it does not make it a fair use automatically.<ref name=Reclaiming>{{cite book|last1=Aufderheide|first1=Patricia|last2=Jaszi|first2=Peter|title=Reclaiming Fair Use: How to Put Balance Back in Copyright|date=2011|publisher=University of Chicago Press|location=Chicago|chapter=Appendix D: Myths and Realities About Fair Use}}</ref> For instance, in ''[[L.A. Times v. Free Republic]]'', the court found that the noncommercial use of ''Los Angeles Times'' content by the Free Republic website was not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for. [[Richard Story]] similarly ruled in ''Code Revision Commission and State of Georgia v. [[Public.Resource.Org]], Inc.'' that despite the fact that it is a non-profit and did not sell the work, the service profited from its unauthorized publication of the [[Official Code of Georgia Annotated]] because of "the attention, recognition, and contributions" it received in association with the work.<ref name="ars-georgiacopy">{{cite web|title=If you publish Georgia's state laws, you'll get sued for copyright and lose|url=https://arstechnica.com/tech-policy/2017/03/public-records-activist-violated-copyright-by-publishing-georgia-legal-code-online/|website=Ars Technica|access-date=March 30, 2017|date=March 30, 2017|archive-date=March 30, 2017|archive-url=https://web.archive.org/web/20170330133242/https://arstechnica.com/tech-policy/2017/03/public-records-activist-violated-copyright-by-publishing-georgia-legal-code-online/|url-status=live}}</ref><ref>Judge Story's decision was reversed on appeal by the [[United States Court of Appeals for the Eleventh Circuit]], which did not consider the question of fair use. {{cite court | litigants=Code Revision Comm'n v. Public.Resource.Org, Inc. | vol=906 | reporter=F.3d | opinion=1229 | pinpoint=1233 | court=11th Cir. | date=2018 | url=https://advance.lexis.com/api/permalink/92843008-66b0-412b-bd2c-025480a70e86/?context=1000516 | archive-url=https://web.archive.org/web/20241008080258/https://signin.lexisnexis.com/lnaccess/app/signin?back=https%3A%2F%2Fadvance.lexis.com%3A443%2Flaapi%2Fpermalink%2F92843008-66b0-412b-bd2c-025480a70e86%2F%3Fcontext%3D1000516&aci=la | url-status=live }}, ''cert. granted'', {{cite court | vol=139 | reporter=S. Ct. | opinion=2746 | date=2019 | url=https://advance.lexis.com/api/permalink/9c591014-7c80-4e52-9426-014d2e775f0c/?context=1000516 | archive-url=https://web.archive.org/web/20241008080311/https://signin.lexisnexis.com/lnaccess/app/signin?back=https%3A%2F%2Fadvance.lexis.com%3A443%2Flaapi%2Fpermalink%2F9c591014-7c80-4e52-9426-014d2e775f0c%2F%3Fcontext%3D1000516&aci=la | url-status=live }}</ref>

Another factor is whether the use fulfills any of the preamble purposes, also mentioned in the legislation above, as these have been interpreted as "illustrative" of transformative use.<ref>{{cite court | litigants=Campbell v. Acuff-Rose Music, Inc. | vol=510 | reporter=U.S. | opinion=569 | pinpoint=584 | date=1994 | url=https://advance.lexis.com/api/permalink/a5fa374f-da05-4ac4-8da7-152a0b0828b4/?context=1000516 | archive-url=https://web.archive.org/web/20241008080205/https://signin.lexisnexis.com/lnaccess/app/signin?back=https%3A%2F%2Fadvance.lexis.com%3A443%2Flaapi%2Fpermalink%2Fa5fa374f-da05-4ac4-8da7-152a0b0828b4%2F%3Fcontext%3D1000516&aci=la | url-status=live }}</ref>

In determining that Prince's appropriation art could constitute fair use and that many of his works were transformative fair uses of Cariou's photographs, the Second Circuit in [[Cariou v. Prince|''Cariou v. Prince'', 714 F.3d 694 (2d. Cir. 2013)]] shed light on how transformative use is determined.<ref name="casetext.com">{{Cite web |title=Cariou v. Prince, 714 F.3d 694 {{!}} Casetext Search + Citator |url=https://casetext.com/case/cariou-v-prince-2 |access-date=October 27, 2022 |website=casetext.com |archive-date=October 8, 2024 |archive-url=https://web.archive.org/web/20241008080258/https://casetext.com/case/cariou-v-prince-2 |url-status=live }}</ref> "What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work."<ref name="casetext.com"/> The district court's conclusion that Prince's work was not transformative is partly based on Prince's deposition testimony that he "do[es]n't really have a message," and that he was not "trying to create anything with a new meaning or a new message."<ref name="Cariou v. Prince 2013">''Cariou v. Prince'', 714 F.3d 694, 707 (2d. Cir. 2013).</ref> However, the artist's intended message "is not dispositive."<ref name="Cariou v. Prince 2013"/> Instead, the focus of the transformative use inquiry is how the artworks will "reasonably be perceived".<ref name="Cariou v. Prince 2013"/>

The transformativeness inquiry is a deceptively simple test to determine whether a new work has a different purpose and character from an original work. However, courts have not been consistent in deciding whether something is transformative. For instance, in Seltzer v. Green Day, Inc., 725 F.3d 1170 (9th Cir. 2013), the court found that Green Day's use of Seltzer's copyrighted Scream Icon was transformative. The court held that Green Day's modifications to the original Scream Icon conveyed new information and aesthetics from the original piece.

Conversely, the Second Circuit came to the opposite conclusion in a similar situation in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d. Cir. 2021). In that case, the Warhol Foundation sought a declaratory judgment that Warhol's use of one of Goldsmith's celebrity photographs was fair use. The court held that Warhol's use was not transformative because Warhol merely imposed his own style on Goldsmith's photograph and retained the photograph's essential elements.