Because anyone that is familiar with fair use knows that the purpose prong and the commerciality aspect of it is not one of the more important prongs of the fair use analysis, whereas transformation is. Transformation adjusts what is a purpose that falls under fair use. Did you read Warhol??
Yes. Warhol is an example where the commercial nature of the secondary use was the deciding factor in its failure to pass the purpose prong.
> In sum, if an original work and secondary use share the same or highly similar purposes, and the secondary use is commercial, the first fair use factor is likely to weigh against fair use, absent some other justification for copying.
(P4). It’s very likely that a noncommercial secondary use would have passed under the reasoning in Warhol. I don’t understand the point you’re trying to make.
Read what you quoted - the commerciality of the use comes after whether or not the use was transformational. That's the entire of point Warhol - when the use is not transformational, there is very little space for a commercial fair use.
