344, but the review may not quote extensively from the “heart” of a forthcoming memoir in a manner that usurps the right of first publication and serves as a substitute for purchasing the memoir, Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985).
In 1976, as part of a wholesale revision of the Copyright Act, Congress codified the judicially created fair-use doctrine at 17 U.S.C. § 107. See Copyright Act of 1976, Pub. L. No. 94-553, § 107, 90 Stat. 2541, 2546 (1976) (codified as amended at 17 U.S.C. § 107). Section 107 requires a court to consider four nonexclusive factors which are to be weighed together to assess whether a particular use is fair:
(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.
An important focus of the first factor is whether the use is “transformative.” A use is transformative if it does something more than repackage or republish the original copyrighted work. The inquiry is whether the work “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message….” Campbell, 510 U.S. at 579, 114 S.Ct. 1164 (citing Leval, 103 Harv. L. Rev. at 1111). “The more transformative the new work, the less will be the significance of other factors … that may weigh against a finding of fair use.” Id. Contrary to what the district court implied, a use does not become transformative by making an “invaluable contribution to the progress of science and cultivation of the arts.” HathiTrust, 902 F.Supp.2d at 464. Added value or utility is not the test: a transformative work is one that serves a new and different function from the original work and is not a substitute for it.
The second factor considers whether the copyrighted work is “of the creative or instructive type that the copyright laws value and seek to foster.” Leval, 103 Harv. L. Rev. at 1117; see also Folsom, 9 F. Cas. at 348 (“[W]e must often … look to the nature and objects of the selections made….”). For example, the law of fair use “recognizes a greater need to disseminate factual works than works of fiction or fantasy.” Harper & Row, 471 U.S. at 563, 105 S.Ct. 2218.
The third factor asks whether the secondary use employs more of the copyrighted work than is necessary, and whether the copying was excessive in relation to any valid purposes asserted under the first factor. Campbell, 510 U.S. at 586–87, 114 S.Ct. 1164. In weighing this factor, we assess the quantity and value of the materials used and whether the amount copied is reasonable in relation to the purported justifications for the use under the first factor. Leval, 103 Harv. L. Rev. at 1123.
Finally, the fourth factor requires us to assess the impact of the use on the traditional market for the copyrighted work. This is the “single most important element of fair use.” Harper & Row, 471 U.S. at 566, 105 S.Ct. 2218. To defeat a claim of fair use, the copyright holder must point to market harm that results because the secondary use serves as a substitute for the original work. See Campbell, 510 U.S. at 591, 114 S.Ct. 1164 (“cognizable market harm” is limited to “market substitution”); see also NXIVM
