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Syllabus

educational purposes,” §107(1), considers the reasons for, and nature of, the copier’s use of an original work. The central question it asks is whether the use “merely supersedes the objects of the original creation … (supplanting the original), or instead adds something new, with a further purpose or different character.” Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 579 (internal quotation marks and citations omitted). As most copying has some further purpose and many secondary works add something new, the first factor asks “whether and to what extent” the use at issue has a purpose or character different from the original. Ibid. (emphasis added). The larger the difference, the more likely the first factor weighs in favor of fair use. A use that has a further purpose or different character is said to be “transformative,” but that too is a matter of degree. Ibid. To preserve the copyright owner’s right to prepare derivative works, defined in §101 of the Copyright Act to include “any other form in which a work may be recast, transformed, or adapted,” the degree of transformation required to make “transformative” use of an original work must go beyond that required to qualify as a derivative.

The Court’s decision in Campbell is instructive. In holding that parody may be fair use, the Court explained that “parody has an obvious claim to transformative value” because “it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” 510 U. S., at 579. The use at issue was 2 Live Crew’s copying of Roy Orbison’s song, “Oh, Pretty Woman,” to create a rap derivative, “Pretty Woman.” 2 Live Crew transformed Orbison’s song by adding new lyrics and musical elements, such that “Pretty Woman” had a different message and aesthetic than “Oh, Pretty Woman.” But that did not end the Court’s analysis of the first fair use factor. The Court found it necessary to determine whether 2 Live Crew’s transformation rose to the level of parody, a distinct purpose of commenting on the original or criticizing it. Further distinguishing between parody and satire, the Court explained that “[p]arody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.” Id., at 580–581. More generally, when “commentary has no critical bearing on the substance or style of the original composition, … the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.” Id., at 580.

Campbell illustrates two important points. First, the fact that a use is commercial as opposed to nonprofit is an additional element of the first fair use factor. The commercial nature of a use is relevant, but not dispositive. It is to be weighed against the degree to which the use