Actually, number three and four are the ones heavily weighted against us. Number one is entirely on our side, but number two is a coin toss really; that one hasn't nearly as much impact. The best argument to offset our disadvantage is that our work is transformative, which automatically constitutes fair use if the first factor in particular is met. That is the argument we have been doing research on. Findings are mixed though, with the most ominous case precedent being Rogers v. Koons.
In that case, Rogers, a small time pro photographer, took a photo of a couple holding puppies in their arms and it was used for greeting card covers and other small things. Koons, a famous sculptor, saw the photo and decided to do a sculpture of it, ordering his assistants to match the photo perfectly except the puppies were to be blue and the couple was to have flowers in their hair. The sculpture was a huge success and he sold each for over $300,000. However, Rogers saw the sculptures and realized what Koons had done and filed a lawsuit for copyright infringement. Koons made a two fold argument, that first the work was transformative (since it had gone from photo to sculpture and because of its new appearance) and that it was parody. However, the court found that the work was not sufficiently transformed in Koons's version, as any common lay person could spot that it was a copy of Roger's photo. Also, they found that the change from photo to sculpture did not constitute transformative either. They also found that since the parody Koons had aspired to create did not require that he so perfectly replicate Roger's photo, they found that argument moot as well. Koons lost the suit and had to pay reparations and also give Rogers the last of his sculptures.
So the changing of mediums alone does not constitute transformation of the work. But the lawyer we are in contact with from OTW still thinks we might have a chance.
"You've got to jump off cliffs all the time and build your wings on the way down." -Ray Bradbury's advice for writers.