i. Commercial Use
Whether the use in question is “of a commercial nature or is for nonprofit educational purposes” is an explicit part of the first fair use factor. Id. at 253; see 17 U.S.C. § 107(1). The “crux of the profit/nonprofit distinction,” however, “is not whether the sole motive for the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 612 (2d Cir.2006). “[C]ourts are more willing to find a secondary use fair when it produces a value that benefits the broader public interest. The greater the private economic rewards reaped by the secondary user (to the exclusion of broader public benefits), the more likely the first factor will favor the copyright holder and the less likely the use will be considered fair.” Blanch, 467 F.3d at 253. Moreover, “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, 114 S.Ct. 1164.
Defendants in this case concede that “Expelled” is a commercial film from which they seek to profit. (Craft Decl. ¶ 13.) As discussed in what follows, however, the movie’s use of “Imagine” is highly transformative, and not merely exploitative, and accordingly, the fact that the use is also commercial receives less weight in the analysis. Moreover, defendants have established for purposes of this motion that the movie contributes to the broader public interest by stimulating debate on an issue of current political concern. (Craft Decl. ¶¶ 16, 18.) Therefore, the commercial purpose of “Expelled” weighs only weakly against a finding of fair use.
ii. Transformative Use
A work is transformative if it does not “merely supersede[] the objects of the original creation” but “instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Id. (internal quotation marks omitted). Although transformative use “is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” Id. (citation omitted). Thus, transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.” Id. There is a strong presumption that this factor favors a finding of fair use where the allegedly infringing work can be characterized as involving one of the purposes enumerated in 17 U.S.C. § 107: “criticism, comment, news reporting, teaching . . ., scholarship, or research.” See NXIVM Corp. v. Ross Inst., 364 F.3d 471, 477 (2d Cir.2004).
Defendants’ use is transformative because the movie incorporates an excerpt of “Imagine” for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” (“Imagine” lyrics, Ex. D to Weber Decl.) As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.”[1]
- ↑ Although defendants’ reasons for using “Imagine” in the movie and their ability to articulate those reasons ease the analysis, neither “is sine qua non for a finding of fair use.” Blanch, 467 F.3d at 255 n. 5. Indeed, much of defendants’ asserted purpose for excerpting the song is apparent from a viewing of the movie.
