(“[A] transformative work is one that serves a new and different function from the original work and is not a substitute for it.”). Though it is not strictly necessary for a fair use to be transformative, “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Campbell, 510 U.S. at 579. Similarly, where a work is not transformative, the commercial nature of an allegedly infringing use takes on greater significance. TCA Television Corp. v. McCollum, 839 F.3d 168, 183 (2d Cir. 2016).
Defendants claim that they posted the I-Codes as Adopted and I-Code Redlines for the purpose of educating the AEC community and public at large about their legal obligations. (See Defendants’ Memo at 35–39; Defendants’ Opposition at 27–28.) As an initial matter, this alleged purpose seems consistent with illustrative purposes articulated in the Copyright Act, including teaching, scholarship, and research. Posting enacted laws for the purpose of educating members of the public as to their legal obligations may be transformative, even if the enacted laws are identical to other copyrighted works. See ASTM, 896 F.3d at 450 (suggesting that “in certain
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