the new work merely supplants the original—a non-transformative use—or instead
adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” … [T]he more transformative the new work, the less the significance of the other factors, like commercialism, that may weigh against a finding of fair use.”[1]
The concept of transforming a work was explored in great detail by a federal appeals court in American Geophysical Union v. Texaco,[2] which is discussed below.
The second fair use factor is the nature of the work copied. Because the purpose of copyright is to “promote the progress of science and the useful arts,” there is more freedom to copy or otherwise use informational, scientific, or factual works than there is for creative or expressive works.[3] For example, articles on the First Amendment, Google, and the Middle East may be more freely copied than a short story from the New Yorker or a Charles Schultz comic strip. This does not mean that a person may copy a “favored” work anytime he or she wants, nor that someone may never copy a Peanuts comic strip. A fair use analysis requires examination of all four factors, and sometimes others.
For example, courts often consider whether the work is published, unpublished, or out of print. In 1987, a federal appeals court ruled that a biographer of J.D. Salinger could not include Salinger’s private letters because, even though they were deposited in the archives of several university libraries, they were unpublished.[4] Following the Salinger decision, after several other courts also restricted copying from unpublished works, it became apparent that some tinkering with the fair use provision was necessary. Consequently, in 1992 Congress amended section 107 with the following, simple clause: “The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
