Editing Fair use (section)

=== 2. Nature of the copyrighted work ===
[[File:J. D. Salinger Signature.svg|thumb|alt=Signature of J.D. Salinger in 1950|The unpublished nature of [[J. D. Salinger]]'s letters was a key issue in the court's analysis of the second fair use factor in ''[[Salinger v. Random House]]''.]]

Although the Supreme Court has ruled that the availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it is fictional or non-fictional.<ref>''[[Warner Bros. and J. K. Rowling v. RDR Books]]'', 575 F. Supp. 2d 513 (S.D.N.Y. 2008)</ref>

To prevent the private ownership of work that rightfully belongs in the public domain, [[idea-expression divide|facts and ideas are not protected by copyright]]—only their particular expression or fixation merits such protection. On the other hand, the social usefulness of freely available information can weigh against the appropriateness of copyright for certain fixations. The [[Zapruder film]] of the [[assassination of President Kennedy]], for example, was purchased and copyrighted by ''Time'' magazine. Yet its copyright was not upheld, in the name of the public interest, when ''Time'' tried to [[enjoin]] the reproduction of stills from the film in a history book on the subject in ''Time Inc v. [[Bernard J. Geis|Bernard Geis]] Associates''.<ref>293 F. Supp. 130 (S.D.N.Y. 1968)</ref>

In the decisions of the [[Second Circuit]] in ''[[Salinger v. Random House]]''<ref>{{cite court |litigants=Salinger v. Random House, Inc. |vol=811 |reporter=F.2d |opinion=90 |court=2d Cir. |date=1987 |url=https://www.law.cornell.edu/copyright/cases/811_F2d_90.htm |access-date=November 18, 2015 |archive-url=https://web.archive.org/web/20151119070802/https://www.law.cornell.edu/copyright/cases/811_F2d_90.htm |url-status=live }}</ref> and in ''New Era Publications Int'l v. Henry Holt & Co'',<ref>''New Era Publications Int'l v. Henry Holt & Co'', 695 F. Supp. 1493 ([[S.D.N.Y.]] 1988)</ref> the aspect of whether the copied work has been previously published was considered crucial, assuming the right of the original author to control the circumstances of the publication of his work or preference not to publish at all. However, Judge Pierre N. Leval views this importation of certain aspects of France's ''droit moral d'artiste'' ([[Moral rights (copyright law)|moral rights]] of the artist) into American copyright law as "bizarre and contradictory" because it sometimes grants greater protection to works that were created for private purposes that have little to do with the public goals of copyright law, than to those works that copyright was initially conceived to protect.<ref name="Leval" /> This is not to claim that unpublished works, or, more specifically, works not intended for publication, do not deserve legal protection, but that any such protection should come from laws about privacy, rather than laws about copyright. The statutory fair use provision was amended in response to these concerns by adding a final sentence: "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."