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creation of transformative works,” 127 but these works tend to present “little or no risk of market substitution” due to the differences in purpose between the original and subsequent creation.128 Author parodies are undoubtedly transformative works. By using a copyrighted work as a tool by which to lampoon the work’s author, the author parodist “adds something new, with a further purpose or different character.”129 In accord with the foregoing, Judge Pierre Leval, an originator of the “transformative” term, noted that “exposing the character of the original author” can create the sort of “new information, new aesthetics, [and] new insights and understandings” that are indicative of transformative works.130 Therefore, in a manner similar to Campbell-type work parodies, the transformative nature of author parodies mitigates the use’s commerciality, leading to a strong performance on the purpose/character factor. B. The Nature of the Copyrighted Work Author parodies typically borrow from expressive, original, and creative works, a fact well exemplified by the district court cases that have adjudicated fair use claims in this area. 131 The Nature factor “recognizes that there is a hierarchy of copyright protection in which original, creative works are afforded greater protection than derivative works for factual compilations.” 132 Since creative works “fall[] within the core of . . . copyright’s protected purposes,”133 the non-factual nature of author parody’s source material appears to weaken the fair use claim of these works. However, work parodies, which also primarily exploit creative works to accomplish their purposes, almost always attain fair use protection.134 This is partially due to the fact that courts tend to discount the importance of the second factor when analyzing work parodies because such uses “almost invariably
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Id. Id. at 581 n.14. 129 Id. at 579. 130 Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1111 (1990). 131 See supra Part III.A. Every author parody case referenced in this Article used a fictional work as its source material: Burnett (“The Charwoman,” fictional character), Bourne (“When You Wish Upon a Star,” song), Salinger (“The Catcher in the Rye,” fictional novel), and Henley (“The Boys of Summer,” song). 132 Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1271 (11th Cir. 2001). 133 Campbell, 510 U.S. at 586. 134 See Simon, supra note 15 and accompanying text. 128