The first factor calls for consideration of “the purposes and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” “The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely ‘supersede[s] the objects’ of the original creation [citations omitted] or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is `transformative.'” … PCG’s copying of WCG’s MOA in its entirety bespeaks no “intellectual labor and judgment.” It merely “supersedes the object” of the original MOA, to serve religious practice and education. Although “transformative use is not absolutely necessary for a finding of fair use,” where the “use is for the same intrinsic purpose as [the copyright holder’s] . . . such use seriously weakens a claimed fair use.” …
[Moreover,] MOA’s use unquestionably profits PCG by providing it at no cost with the core text essential to its members’ religious observance, by attracting through distribution of MOA new members who tithe ten percent of their income to PCG, and by enabling the ministry’s growth. During the time of PCG’s production and distribution of copies of MOA its membership grew to some seven thousand members….
The second statutory factor, “the nature of the copyrighted work,” turns on whether the work is informational or creative. While it may be viewed as “factual” by readers who share Armstrong’s religious beliefs, the creativity, imagination and originality embodied in MOA tilt the scale against fair use….
The third factor directs us to consider “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” PCG copied the entire MOA verbatim …. [In the Sony case,] the Supreme Court held that reproduction of the entire work “[did] not have its ordinary effect of militating against a finding of fair use” under the unique circumstances of that case, to wit: copying of videotapes for time-shifting for personal use to “enable[ ] a viewer to see such a work which he had been invited to witness in its entirety free of charge.” No such circumstances exist here to justify PCG’s reproduction of the entire work….
The fourth factor considers “the effect of the use upon the potential market for or value of the copyrighted work.” … [I]t cannot be inferred from that fact that the absence of a conventional market for a work, the copyright to which is held by a nonprofit, effectively deprives the holder of copyright protection…. The statute by its terms is not limited to market effect but includes also “the effect of the use on the value of the copyrighted work.” … “[E]ven copying for noncommercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have.” Those rewards need not be limited to monetary rewards; compensation may take a variety of forms
WCG points out that those who respond to PCG’s ads are the same people who would be interested in WCG’s planned annotated version or any future republication of the original version. With an annotated MOA, WCG hopes to reach out to those familiar with Armstrong’s teachings and those in the broader Christian community. PCG’s distribution of its unauthorized version of MOA thus harms WCG’s goodwill by diverting potential members and contributions from WCG…. [U]ndisputed evidence shows that individuals who received copies of MOA from PCG are present or could be potential adherents of WCG. MOA’s value is as a marketing device; that is how PCG uses it and both PCG and WCG are engaged in evangelizing in the Christian community.
PCG argues that WCG’s failure to exploit MOA for ten years and its lack of a concrete plan to publish a new version show that “MOA has no economic value to the WCG that the PCG’s dissemination of the work would adversely affect.” We disagree. Even an author who had disavowed any intention to publish his work during his lifetime was entitled to protection of his copyright, first, because the relevant consideration was the “potential market” and, second, because he has the right to change his mind….