Cite as 714 F.3d 694 (2nd Cir. 2013)
II.
The purpose of the copyright law is “[t]o promote the Progress of Science and useful Arts….” U.S. Const., Art. I, § 8, cl. 8. As Judge Pierre Leval of this court has explained, “[t]he copyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public.” Pierre N. Leval, Toward a Fair Use Standard, 108 Harv. L.Rev. 1105, 1107 (1990) (hereinafter “Leval”). Fair use is “necessary to fulfill [that] very purpose.” Campbell, 510 U.S. at 575, 114 S.Ct. 1164. Because “ ‘excessively broad protection would stifle, rather than advance, the law’s objective,’ ” fair use doctrine “mediates between” “the property rights [copyright law] establishes in creative works, which must be protected up to a point, and the ability of authors, artists, and the rest of us to express them—or ourselves by reference to the works of others, which must be protected up to a point.” Blanch, 467 F.3d at 250 (brackets omitted) (quoting Leval at 1109).
The doctrine was codified in the Copyright Act of 1976, which lists four non-exclusive factors that must be considered in determining fair use. Under the statute,
[T]he fair use of a copyrighted work … for purposes such as criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
- (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. As the statute indicates, and as the Supreme Court and our court have recognized, the fair use determination is an open-ended and context-sensitive inquiry. Campbell, 510 U.S. at 577–78, 114 S.Ct. 1164; Blanch, 467 F.3d at 251. The statute “employs the terms ‘including’ and ‘such as’ in the preamble paragraph to indicate the illustrative and not limitative function of the examples given, which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses.” Campbell, 510 U.S. at 577–78, 114 S.Ct. 1164 (quotation marks and citation omitted). The “ultimate test of fair use … is whether the copyright law’s goal of ‘promoting the Progress of Science and useful Arts’ … would be better served by allowing the use than by preventing it.” Castle Rock, 150 F.3d at 141 (brackets and citation omitted).
The first statutory factor to consider, which addresses the manner in which the copied work is used, is “[t]he heart of the fair use inquiry.” Blanch, 467 F.3d at 251. We ask
whether the new work merely ‘supersedes the objects’ of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message[,] … in other words, whether and to what extent the new work is transformative. … [T]ransformative works … lie at the heart of
