Commercial use

Commercial use of copyrighted material cuts against a finding of fair use. According to the U.S. Supreme Court, "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 the exploitation of the copyrighted material without paying the customary price." This standard does not require courts to make a clear-cut choice between two absolute choices &mdash; i.e., making a dispositive decision of whether a use is a "commercial" or "non-profit" per se. Rather, "the commercial nature of a use is a matter of degree, not absolute." Maxtone-Graham v. Burtchaell, 802 F.2d 1253, 1262 (2d Cir. 1986). This places the question of commercial use on a continuum between two extremes: (1) a use that serves a non-commercial purpose by a non-commercial entity charging no fee whatsoever, and (20 a use that serves a commercial purpose by a commercial entity deriving its revenue directly from a fee charged for the copyrighted material.