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particular facts of each case. Because this is not a mechanical determination, a party need not “shut-out” her opponent on the four factor tally to prevail.[1]
The Committee believes that the Wright opinion properly balanced all the fair use factors. The Committee also notes that the Wright opinion did not reach the outer limits of what might be regarded as fair use. The Wright opinion affirmed the trial court’s grant of defendant’s motion for summary judgment, a procedural posture in which all ambiguities and reasonable inferences were resolved in favor of the non-moving party, in this instance the copyright owner of the unpublished letters. Certainly uses beyond those permitted in Wright may also be fair use, depending upon the facts of a particular case. For example, in some circumstances it would be a fair use to copy an author’s unpublished expression where necessary to report fairly and accurately a fact set forth in the author’s writings.[2] Additionally, as Judge Leval has written: “Often, it is the words used by [a] public figure (or the particular manner of expression) that are the facts calling for comment.”[3]
Post-Wright Concerns
While the Wright opinion takes major steps in the direction of ending the Second Circuit’s flirtation with a per se rule, concern has been expressed that the Wright decision did not disavow certain troublesome language in the Salinger opinion, in particular, Salinger's statement that unpublished works “normally enjoy complete protection against copying any protected expression.”[4]
The origins of this passage were explored by the Copyright Office in its written statement for the joint 1992 hearings and are worth reviewing since they bear directly on the perceived per se rule in the Second Circuit.
The Salinger passage is the result of the court of appeals’ conclusion that the Supreme Court’s holding in Harper & Row, Pub., Inc. v. Nation Enterprises that “the scope of fair use is narrower with respect to unpublished works”[5] contains an ambiguity. According to the Salinger court, the term “scope” could mean either that “the circumstances in which copying will be found to be fair use will be fewer in number for unpublished works than for published works,” or, that “the amount of copyrighted material that may be copied as fair use is a lesser quantity for unpublished works than for published works.”[6] The Salinger court opted for the first interpretation, holding that “[n]arrower ‘scope’ seems to refer to the diminished likelihood that copying will be fair use when the copyrighted material is unpublished.”[7]
The Copyright Office disagreed with this interpretation. Moreover, the Office saw in the disagreement over the proper interpretation of Harper &. Row’s passage “the crux of the concern that
- ↑ 953 F.2d at 740.
- ↑ See New Era Publications International, ApS v. Henry Holt & Company, 884 F.2d 565, 660 (2d Cir. 1989) (Newman, J., with whom Oakes, C.J., Kearse and Winter, JJ., joined, dissenting from denial or rehearing en banc), cert. denied, 110 S.Ct. 1168 (1990).
- ↑ Id., New Era, 695 F. Supp. 1493, 1502 (S.D.N.Y 1988).
- ↑ 811 F.2d at 97.
- ↑ 471 U.S. at 564.
- ↑ 811 F.2d at 97.
- ↑ Id.
