recognizes a greater need to disseminate factual works than works of fiction or fantasy.”[1] Use of works that incorporate significant unprotectable elements is also favored.[2] Courts have found that the second factor weighs against the use for unpublished works for which the owner intentionally withheld publication in anticipation of some later public release. Use in those cases risks undercutting the economic incentives that are at the core of the copyright system by allowing others to scoop the initial publication of the work. Similarly, courts have found that use of out-of-print works that are unavailable in the marketplace would tend to weigh in favor of the use under the second factor.[3]
For CDL, application of the second factor in the abstract is difficult. Library collections include a wide variety of works for which CDL may be used, some of which will fare more or less favorably under the second factor. Given the limited usefulness of this factor in the overall fair use assessment, we do not believe the nature of the work should be determinative. Nevertheless, some considerations about the nature of the selected works may be helpful for libraries that seek to bolster their overall fair use assertion. These considerations may include applying CDL to works that are out of print, either in print or digitally; of a scholarly or scientific nature, as opposed to popular literature or fiction works; compilations of data (e.g., city directories); works with significant unprotectable elements (e.g., genealogical materials). We offer some operational suggestions about these practices in Part IV of this paper.
- C.The Amount and Substantiality of the Work Used
The third factor looks at the “amount and substantiality of the work used.” More than any other factor, the assessment under the third factor has tended to gravitate toward numerical guidelines, though courts have shunned their use.[4] The clear implication is that the more content of the original used, the less likely
- ↑ Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 563 (1985).
- ↑ Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1526 (9th Cir. 1992).
- ↑ Harper & Row, 471 U.S. at 553 (“If the work is ‘out of print’ and unavailable for purchase through normal channels, the user may have more justification for reproducing it.”) (quoting S. Rep. No. 94-473, at 64 (1975)); Hofheinz v. A & E Television Networks, 146 F. Supp. 2d 442, 447–48 (S.D.N.Y. 2001) (use of trailer for a film released nearly 50 years earlier and not available on the market was favored under the second factor); Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1264 n.8 (2d Cir. 1986) (“[a] key, though not necessarily determinative, factor in fair use is whether the work is available to the potential user”); Peter Letterese & Assocs., Inc. v. World Inst. of Scientology Enters., 533 F.3d 1287, 1313–14 (11th Cir. 2008). But see Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522, 1533 (S.D.N.Y. 1991).
- ↑ Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1272 (11th Cir. 2014).
should look closely at “evaluative, analytical, or subjectively descriptive material” in such a work which may rebalance the second factor either neutrally or against the use).
