Opinion of the Court
factor considers the reasons for, and nature of, the copier’s use of an original work. The “central” question it asks is “whether the new work merely ‘supersede[s] the objects’ of the original creation … (‘supplanting’ the original), or instead adds something new, with a further purpose or different character.” Campbell, 510 U. S., at 579 (quoting Folsom v. Marsh, 9 F. Cas. 342, 348 (No. 4,901) (CC Mass. 1841) (Story, J.), and Harper & Row, 471 U. S., at 562). In that way, the first factor relates to the problem of substitution—copyright’s bête noire. The use of an original work to achieve a purpose that is the same as, or highly similar to, that of the original work is more likely to substitute for, or “ ‘supplan[t],’ ” the work, ibid.
Consider the “purposes” listed in the preamble paragraph of §107: “criticism, comment, news reporting, teaching … , scholarship, or research.” Although the examples given are “ ‘illustrative and not limitative,’ ” they reflect “the sorts of copying that courts and Congress most commonly ha[ve] found to be fair uses,” and so may guide the first factor inquiry. Campbell, 510 U. S., at 577–578 (quoting §101). As the Court of Appeals observed, the “examples are easily understood,” as they contemplate the use of an original work to “serv[e] a manifestly different purpose from the [work] itself.” 11 F. 4th, at 37. Criticism of a work, for instance, ordinarily does not supersede the objects of, or supplant, the work. Rather, it uses the work to serve a distinct end.[1]
Not every instance will be clear cut, however. Whether a use shares the purpose or character of an original work, or instead has a further purpose or different character, is a matter of degree. Most copying has some further purpose,
- ↑ Take a critical book review, for example. Not only does the review, as a whole, serve a different purpose than the book; each quoted passage within the review likely serves a different purpose (as an object of criticism) than it does in the book. That may not always be so, however, and a court must consider each use within the whole to determine whether the copying is fair. W. Patry, Fair Use §3:1, pp. 129–130 (2022).
