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 than others. The Court observed in Harper & Row Publishers, Inc. v. Nation Enterprises that the fourth factor, which assesses the harm the secondary use can cause to the market for, or the value of, the copyright for the original, “is undoubtedly the single most important element of fair use.” 471 U.S. 539, 566, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (citing, 3 § 13.05[A], at 13-76 (1984)). This is consistent with the fact that the copyright is a commercial right, intended to protect the ability of authors to profit from the exclusive right to merchandise their own work.

In Campbell, the Court stressed also the importance of the first factor, the “purpose and character of the secondary use.” 17 U.S.C. § 107(2). The more the appropriator is using the copied material for new, transformative purposes, the more it serves copyright’s goal of enriching public knowledge and the less likely it is that the appropriation will serve as a substitute for the original or its plausible derivatives, shrinking the protected market opportunities of the copyrighted work. 510 U.S. at 591, 114 S.Ct. 1164 (noting that, when the secondary use is transformative, “market substitution is at least less certain, and market harm may not be so readily inferred.”).

With this background, we proceed to discuss each of the statutory factors, as illuminated by Campbell and subsequent case law, in relation to the issues here in dispute.


 * A. Factor One

(1) Transformative purpose. Campbell’s explanation of the first factor’s inquiry into the “purpose and character” of the secondary use focuses on whether the new work, “in Justice Story’s words, … merely ‘supersede[s] the objects’ of the original creation, … or instead adds something new, with a further purpose. … [I]t asks, in other words, whether and to what extent the new work is ‘transformative.’ ” 510 U.S. at 578–579, 114 S.Ct. 1164 (citations omitted). While recognizing that a transformative use is “not absolutely necessary for a finding of fair use,” the opinion further explains that the “goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works” and that “[s]uch works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.” Id. at 579, 114 S.Ct. 1164. In other words, transformative uses tend to favor a fair use finding because a transformative use is one that communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge.

The word “transformative” cannot be taken too literally as a sufficient key to understanding the elements of fair use. It is rather a suggestive symbol for a complex thought, and does not mean that any and all changes made to an author’s original text will necessarily support a finding of fair use. The Supreme Court’s discussion in Campbell gave important guidance on assessing when a transformative use tends to support a conclusion of fair use. The defendant in that case defended on the ground that its work was a parody of the original and that parody is a time-honored category of fair use. Explaining why parody makes a stronger, or in any event more obvious, claim of fair use than satire, the Court stated,

[T]he heart of any parodist’s claim to quote from existing material … is the use of … a prior author’s composition to … comment[] on that author’s works…. If, on the contrary, the