The is and the ought in fair use get further apart

Or maybe in this context it's the will and the won't. Fair use presumes that copyright owners won't authorize critical, transformative or parodic uses of their works. But increasingly, they will, as this ad for the Lord of the Rings trilogy (available at YouTube as well) makes clear. "Secret Lovers" directly challenges the Eleventh Circuit's conclusion that copyright owners won't allow reworkings of default-heterosexual texts into queer ones.

Does this mean that Lord of the Rings slash is no longer transformative fair use? Obviously I think the answer is no, but current fair use doctrine needs to figure out why.

(It's possible that TBS exceeded the scope of its license in creating these ads, but I wouldn't bet on it.)