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 response, plaintiff amended his complaint to include a defamation claim. Following a period of discovery, both parties have now moved for summary judgment.

II. LEGAL PRINCIPLES


 * a.

Summary judgment may be granted when a movant shows, based on admissible evidence in the record, “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of demonstrating “the absence of a genuine issue of material fact.”, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In reviewing a motion for summary judgment, the Court construes all evidence in the light most favorable to the nonmoving party, and draws all inferences and resolves all ambiguities in its favor. , 604 F.3d 732, 740 (2d Cir. 2010). The Court’s role is to determine whether there are any triable issues of material fact, not to weight the evidence or resolve any factual disputes. , 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).


 * b.

Fair use is an affirmative defense to copyright infringement. It “is a judicially created doctrine … first explicitly recognized in statute in the Copyright Act of 1976.”, 246 F.3d 152, 173 (2d Cir. 2001). In determining whether “the use of a work in any particular case” is fair use, courts must consider non-exhaustive factors: "(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."

17 U.S.C. § 107. No single factor is categorically determinative in this “open-ended and context-sensitive inquiry.”, 467 F.3d 244, 251 (2d Cir. 2006). The task of determining fair use “is not to be simplified with bright-line rules, for the statute … calls for case-by-case analysis.” (quoting, 510 U.S. 569, 577, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994)). The Second Circuit has held that when the material facts in the record are undisputed, the fair use factors are properly considered as a matter of law and therefore may be decided on motion for summary judgment. , 803 F.2d 1253, 1257–59 (2d Cir. 1986);, 467 F.3d at 250 (“Although fair use is a mixed question of law and fact, this court has on a number of occasions resolved fair use determinations at the summary judgment stage where … there are no genuine issues of material fact.”) (internal quotations and alterations omitted); , 756 F.3d 73, 93 (2d Cir. 2014) (affirming district court’s  grant of summary judgment for defendants on basis of fair use).

Although no factor is independently determinative, “[t]he heart of the fair use inquiry” is the first factor—whether the use is “transformative” by “add[ing] something new, with a further purpose or different character[.]”, 246 F.3d at 174 (quoting , 510 U.S. at 579, 114 S.Ct. 1164). “The central purpose of this investigation is to see … whether the new work merely supersedes the objects of the original creation, or instead adds