Case 1:12-cv-01340-JSR Document 84 Filed 07/03/14 Page 6 of 8
Regarding the second factor (the nature of the copyrighted work), “[i]n general, fair use is more likely to be found in factual works than in fictional works.” Stewart v. Abend, 495 U.S. 207, 237 (1990). Here, the briefs at issue are functional presentations of fact and law, and this cuts towards finding in favor of fair use. It is true that “the scope of fair use is narrower with respect to unpublished works [because] …. the author’s right to control the first public appearance of his expression weighs against use of the work before its release.” Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 564 (1985). However, while White’s briefs were in some sense unpublished, this factor is made less significant by the fact that White intentionally made the briefs publicly available by filing them with the court; thus the circumstances of this case do not implicate the rationales for protecting unpublished works. On net, the second factor also weighs in favor of a finding of fair use.
Regarding the third factor, which looks at “‘the quantity and value of the materials used … in relation to the purpose of the copying,’” Blanch, 467 F.3d at 257 (quoting Campbell, 510 U.S. at 586), although “copying of an entire work [does not] favor[] fair use[,] … courts have concluded that such copying does not necessarily weigh against fair use because copying the entirety of a work is sometimes necessary to make a fair use of the image.” Bill Graham Archives v. Darling Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006). Although defendants here copied the entirety of White’s
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