Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/60

44 (4) the effect of the use upon the potential market for or value of the copyrighted work.

The first factor examines two different things—the purpose of the use, and the character of the use. With regard to purpose, a court will consider whether the use is of a commercial nature or, instead, for non-profit educational purposes. Although non-profit educational uses are favored over commercial uses, this means neither that all non-profit educational uses are fair, nor that all commercial uses are infringing. For example, a court has held that extensive copying of PBS programs by a public school system for distribution to schools within the system—an obvious educational use—was infringing. Another court ruled that it was not a fair use when a teacher copied eleven pages from a thirty-five-page copyrighted booklet on cake decorating, and incorporated those eleven pages into a twenty-four-page booklet she prepared for her class.

The second part of the first factor requires an examination of the character of the use, including whether the use is transformative. The character/transformative issue was discussed at great length in Campbell v. Acuff-Rose Music, where the U.S. Supreme Court found that the band 2 Live Crew’s parody of Roy Orbison’s “Oh Pretty Woman” was a fair use. The Court wrote that the central purpose of the first factor is whether