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Fair Use of Copyrighted Works

Factor 2: The Nature of the Original Work

In analyzing the second factor, courts look at the nature of the original work: Is it primarily factual or primarily creative? Is it published or unpublished? Is it out-of-print, or of historical importance?

Because copyrights don't protect "facts" or "ideas", but only "expression", if a work is primarily factual, then uses of the work are more likely to be considered fair. Indeed, if a work is only a compilation of facts, it is not protected by copyright at all, although the selection or organization of material might be original enough to have a copyright.

Unpublished letters, or other writings that the author chose to keep private, have a stronger claim against unauthorized uses than works the creator has released to the public. When J.D. Salinger sued to stop the publication of a biography that quoted from his unpublished letters, the court ruled that unpublished writings "normally enjoy complete protection against copying". (Salinger v. Random House). After the Salinger case, Congress amended the law to make it clear that even if a work is unpublished, using it could still be fair.

Even where a work is just about to be released, the fact that it is still unpublished argues against a finding of fair use. When The Nation reprinted a portion of former President Gerald Ford's memoirs shortly before their publication date, the Supreme Court held the "scoop" against the magazine in rejecting its claim to fair use. The use was unfair, the Supreme Court said, despite the fact that only a small excerpt from the memoirs was quoted, and The Nation article was newsworthy because it reported Ford's comments about his pardon of Richard Nixon. (Harper & Row v. Nation Enterprises.)

But courts do also consider the value of the particular work to the public. In one case, a film of the Kennedy assassination was found to be of such historical importance that copying and distributing it to the public was considered fair use. (Time v. Bernard Geis).

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