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 new, with a further purpose or different character, altering the first with new expression, meaning, or message.”, 510 U.S. at 579, 114 S.Ct. 1164 (internal quotations and alterations omitted);, 755 F.3d 87, 96 (2d Cir. 2014) (“A use is transformative if it does something more than repackage or republish the original copyrighted work.”). “In other words, the would-be fair user of another’s work must have justification for the taking.”, 804 F.3d 202, 214–15 (2d Cir. 2015), , — U.S. —, 136 S.Ct. 1658, 194 L.Ed.2d 800 (2016).

It is well-established that “[a]mong the best recognized justifications for copying from another’s work is to provide comment on it or criticism of it.” Indeed, the Second Circuit has held “there is a strong presumption that factor one favors the defendant if the allegedly infringing work fits the description of uses described in section 107,” including “criticism” and “comment.”, 953 F.2d 731, 736 (2d Cir. 1991);  , 839 F.3d 168, 179 (2d Cir. 2016) (“[T]he uses identified by Congress in the preamble to § 107—criticism, comment, news reporting, teaching, scholarship, and research—might be deemed ‘most appropriate’ for a purpose or character finding indicative of fair use.”); , 364 F.3d 471, 477 (2d Cir. 2004) (“Where the defendants’ use is for the purposes of criticism [or] comment … factor one will normally tilt in the defendants’ favor.”) (internal quotation omitted). Accordingly, courts have regularly found fair use after holding that the purpose or character of an allegedly infringing work was criticism and/or comment. ,, 364 F.3d at 482 (affirming district court denial of preliminary injunction after finding that defendants’ allegedly infringing writings were “undoubtedly transformative secondary uses intended as a form of criticism”); , 156 F.Supp.3d 425, 444–45 (S.D.N.Y.), , 674 Fed.Appx. 16 (2d Cir. 2016) (holding defendant’s line of tote bags made fair use of plaintiff’s copyright in part because “[p]arody, like other forms of comment or criticism, has an obvious claim to transformative value”) (internal quotations omitted);, 97 F.Supp.3d 512, 531 (S.D.N.Y. 2015) (holding the play “3C” makes fair use of the television series “Three’s Company” in part because the play “criticizes and comments upon Three’s Company by reimagining a familiar setting in a darker, exceedingly vulgar manner.”).

The second factor, which is “rarely found to be determinative,” “call for recognition that some works are closer to the core of intended copyright protection thatthan [sic] others;” a work that “is in the nature of an artistic creation … falls close” to that core. , 246 F.3d at 174 (quoting, 510 U.S. at 586, 114 S.Ct. 1164). Thus, a determination that an allegedly infringed work is fictional or creative weights against a finding of fair use.

The third factor is a consideration of the “amount and substantiality of the portion [of the copyrighted work] used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). This requires courts to “consider not only the ‘quantity of the materials used’ but also ‘their quality and importance.’ ”, 839 F.3d at 185 (quoting , 510 U.S. at 587, 114 S.Ct. 1164). “[T]he extent of permissible copying varies with the purpose and character of the use.”, 714 F.3d 693, 710 (2d Cir. 2013) (quoting , 448 F.3d 605, 613 (2d Cir. 2006);