First Factor — The Purpose and Character of Use
Under this factor, non-profit or educational uses and uses that transform the underlying material are more likely to be considered fair. Transformative uses might be considered fair even if they are commercial.
A good example of a transformative use is parody. A parody uses the original work in order to make fun of it. From court cases decided to date, several elements emerge. For a parody to be considered fair use:
It must comment on the original.
It should use only as much of the original material as is needed and not so much that the consumer will be confused or the commercial value of the original will be diluted.
It should not seek to replace the original in the market place.
In Campbell v. Acuff Rose Music, the owners of the copyright in Roy Orbison’s song, “Oh, Pretty Woman”, sued the rap group 2 Live Crew, claiming that the group’s parody song infringed their copyright by using the first line of the lyrics and the song’s opening bass riff. The Supreme Court found that because 2 Live Crew’s song added significant amounts of new material and criticized the underlying work, the use was transformative and qualified for fair use. The court reached this conclusion even though 2 Live Crew’s use was for commercial purposes.
