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Under the first fair use factor, the purpose and character of the use, the court considers the extent to which the new work is transformative. The new work is transformative if it adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message. While transformative use is not absolutely necessary for a finding of fair use, transformative works advance the goals of copyright law, and thus they are at the heart of the fair use doctrine's breathing space within the confines of copyright. Examples of fair use include social commentary, criticism, and news reporting. The court also considers whether the new work is for commercial or noncommercial use. Typically, a work created for commercial use is less likely to bear fair use protection; however, the commercial/noncommercial distinction is less significant the more transformative the work is.
Plaintiff Northland Family Planning Clinic, Inc. ("Northland") claims that Defendants Center for Bio-Ethical Reform ("CBR"), Gregg Lee Cunningham ("Cunningham"), Donald Cooper ("Cooper"), Seth Gruber ("Gruber"), Todd Bullis ("Bullis"), Reel to Real Ministries, Inc., doing business as The Apologetics Groups ("TAG"), and Eric Holmberg ("Holmberg") (collectively, "Defendants"), infringed Northland's copyrighted video, "Every Day, Good Women Choose Abortion" (the "Northland Video"), by creating three videos that feature excerpts of the Northland Video. Defendants claim fair use. The parties have brought cross motions for summary judgment. Northland seeks a partial judgment finding that Defendants infringed Northland's copyright and cannot avail themselves of the fair use defense. Defendants move for summary judgment finding that certain individuals did not infringe Northland's copyright, and that any use of the Northland Video is insulated by the fair use defense.
Was the defense of fair use available to the Defendants?
The court held that the Defendants were entitled to the fair use defense and granted summary judgment. The court found that the videos were transformative in character, did not use an excessive amount of the clinic's video to create a parody, and did not create a cognizable market injury to the clinic's video.