Commercial Purpose
When analyzing the first fair use factor, the purpose and character of a use, the question of whether a use is commercial or noncommercial is highly relevant. This does not, however, mean that all nonprofit and educational uses are fair, and that all commercial uses are not fair. The Court has stated, “the crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price" (Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539, 562 (1985)).
The following are two case examples; in the first, a work was determined to be highly commercial and subsequently ruled as infringement. In the second, the use was noncommercial and ultimately, fair use was found.
Commercial Purpose
Basic Books, Inc. v. Kinko's Graphics Corporation, 758 F. Supp. 1522 (S.D.N.Y. 1991)
Kinko's photocopied excerpts of books from course reading lists, compiled them into course packs, and sold them to college students for a profit. The court ultimately found that Kinko's copied crucial and significant portions of the work for an expressly commercial purpose that would harm publishers' sales. For these reasons, fair use was not found.
Noncommercial Purpose
NRA of Am. v. Handgun Control Fed'n of Ohio, 15 F.3d 559 (6th Cir. 1994)
The NRA sent newsletters to its members urging opposition to gun control legislation. The Handgun Control Federation of Ohio (HCF), a non-profit organization, photocopied material from the NRA newsletters and included that material in mailings to HCF’s members urging support of gun control legislation. HCF used the material only to further its own lobbying goals and made no attempt to sell the material. The material was used primarily in exercising HCF’s First Amendment speech rights to comment on public issues and to petition the government regarding legislation. In noting this, the Court likewise indicated that the scope of fair use is wider when related to public interest issues. The use's noncommercial nature, along with details associated with other fair use factors, led to a fair use ruling.