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 Courts have stressed also the importance of the first factor, the 'purpose and character of the secondary use.' The more the appropriator is using the copied material for new, transformative purposes, the more it serves copyright's goal of enriching public knowledge and the less likely it is that the appropriation will serve as a substitute for the original or its plausible derivatives, shrinking the protected market opportunities of the copyrighted work. 510 U.S. at 591 (noting that, when the secondary use is transformative, 'market substitution is at least less certain, and market harm may not be so readily inferred.').


Campbell's explanation of the first factor's inquiry into the 'purpose and character' of the secondary use focuses on whether the new work, 'in Justice Story's words, . . . merely 'supersede[s] the objects' of the original creation, . . . or instead adds something new, with a further purpose . . . . [I]t asks, in other words, whether and to what extent the new work is 'transformative.'' 510 U.S. at 578-579 (citations omitted). While recognizing that a transformative use is 'not absolutely necessary for a finding of fair use,' the opinion further explains ...

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