copied into law, this factor weighs heavily in favor of fair use. But where the incorporation does not lend to such easy substitution, fair use is harder to justify.” Id. at 452.
The nature of model building codes plainly puts them at the periphery of copyright protection rather than its core. Bearing in mind that the “express text of the law” falls plainly outside the realm of copyright protection, the Court readily concludes that the second factor heavily favors a finding of fair use as to the I-Codes as Adopted. And though the I-Code Redlines feature model code text that was not incorporated into law, that text is nevertheless factual rather than fictional. Though the second fair use factor proves little in isolation, it weighs in favor of finding Defendants’ copying is a fair use.
- 3. Third Factor: Amount and Substantiality
“The third factor asks whether the secondary use employs more of the copyrighted work than is necessary, and whether the copying was excessive in relation to any valid purposes asserted under the first factor.” HathiTrust, 755 F.3d at 96. “The inquiry must focus upon whether ‘[t]he extent of … copying’ is consistent with or more than necessary to further ‘the purpose and character of the
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