Keywords
fair use; copyright law; intellectual property
Abstract
Fair use has always been an important element of copyright law. The first fair use factor, “the purpose and character of the use,” has become especially important after the U.S. Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The “purpose and character” is typically analyzed by determining if a secondary work is “transformative,” but lower courts do not agree on what it means to be transformative. There is also disagreement on how to balance a secondary work’s transformative nature with its commercial nature when deciding whether the first factor favors fair use.
This Note offers a proposed standard for determining whether a secondary work is transformative and how to balance a transformative nature with a commercial one. This Note argues that a transformative analysis should focus on the purpose of the specific use at issue and consider the author’s claimed meaning of the use and industry norms in the analysis. Additionally, this Note argues that when a secondary work possesses both a transformative and a commercial nature, the transformative nature of a work should outweigh the commercial nature and the first factor should favor fair use.
Recommended Citation
Taylor Gluckman,
It’s a Balancing Act: Analyzing the First Fair Use Factor,
94 Fordham L. Rev. 685
(2025).
Available at: https://ir.lawnet.fordham.edu/flr/vol94/iss2/12