Page:White v. West (memorandum opinion).pdf/5

 above factors weigh in favor of a finding of fair use, while one of the factors is neutral.

Regarding the first factor, a key issue is: “whether and to what extent the new work is ‘transformative,’” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994), that is, whether how the defendants have altered and used plaintiff’s work has effectively transformed it into a different kind of work. The Court finds that West and Lexis’s use of the briefs was transformative for two reasons. First, while White created the briefs solely for the purpose of providing legal services to his clients and securing specific legal outcomes in the Beer litigation, the defendants used the brief toward the end of creating an interactive legal research tool. See Blanch v. Koons, 467 F.3d 224, 251 (2d Cir. 2006) (“The sharply different objectives that Koons had in using, and Bland had in creating [the work] confirms the transformative nature of the use.”). Second, West and Lexis’s processes of reviewing, selecting, converting, coding, linking, and identifying the documents “add[] something new, with a further purpose or different character” than the original briefs. Campbell, 510 U.S. at 579. While, to be sure, the transformation was done for a commercial purpose, “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Campbell, 510 U.S. at 579. Thus, on net, the first factor weighs in favor of a finding of fair use.