consequence that fair use is more difficult to establish when the former works are copied.’” Castle Rock, 150 F.3d at 143 (quoting Campbell, 510 U.S. at 586). This factor tends to favor findings of fair use for factual works, which are further from the core of intended copyright protection than fictional ones. Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913, 925 (2d Cir. 1994). But “courts have hardly ever found that the second factor in isolation played a large role in explaining a fair use decision,” and the second factor is best assessed in tandem with the first. Authors Guild, 804 F.3d at 220.
The ASTM court stated that standards “fall at the factual end of the fact–fiction spectrum, which counsels in favor of finding fair use.” 896 F.3d at 451. “[B]ecause the express text of the law falls plainly outside the realm of copyright protection … standards incorporated by reference into law are, at best, at the outer edge of copyright’s protective purposes.” Id. (internal quotation marks omitted). After emphasizing that this proposition must be considered standard-by-standard, the court summarized that “[w]here the consequence of the incorporation by reference is virtually indistinguishable from a situation in which the standard had been expressly
83
