What’s up with Fair Use? Part III: The second factor

I’ve written before about Fair Use in general and the first factor that courts use to make their Fair Use determination. This week, we will continue our deep dive into the Fair Use defense with a look at the second factor.

The Nature of the Copyrighted Work:

The second factor is “the nature of the copyrighted work.” This is the least important of the four factors in many analyses, sort of a “black sheep” of the Fair Use factors. This factor looks at whether the copyrighted work, by its nature, is the type of work that those who drafted the copyright statute meant to protect.

Creative versus Factual/Functional:

Figuring out whether the work is, indeed, something that was intended to get protection by copyright involves a determination of where the work falls on the Creative/Functional spectrum. On one side of the spectrum is highly creative works. On the other side are factual or functional works.

As you can imagine, greater protection is given to creative works, while it is more likely that a court will find Fair Use in cases of compilations or factual works. However, as always, you can never tell what a court is going to see as “creative” or “functional.” Architecture, for instance, while being mainly functional by its very nature, has been found to be creative when looking at this factor.

While this is often the least important factor, it should never be discounted and should always be given the proper weight in the Fair Use analysis.

Unpublished works:

I just want to throw a word in here about works that are not published at the time of the infringing use, and how they fit into the analysis of this factor.

For out-of-print works, courts have a tendency to find that there is a fair use in order to keep those works in the public. However, if the owner of the copyright is keeping the work out of print for a reason (sort of how Disney holds back video releases to keep scarcity and make them more valuable), this would weigh against an infringer in a Fair Use analysis.

Congress takes action:

For a time, courts were hesitant to find fair use when an unpublished work had been used, even going so far as to have a presumption against fair use in cases where a work had not yet been published. However, Congress amended the copyright statute in 1992. The amendment made it clear that there is no per se rule against a finding of fair use for unpublished works. If the balance of the four factors finds that the use is fair, even the unpublished nature of the work can’t change that.

Next week, we will discuss the third factor, which deals with the amount of the copyrighted material used. In the meantime, if you need assistance with a fair use analysis or any game development legal needs, contact a game lawyer for a free consultation.

And don’t forget to sign up for my FREE game development eBook on my website.

photo credit: josemanuelerre via photopin cc