Page:H.R. Rep. No. 102-836 (1992).pdf/7

 passages in Salinger should have been phrased to read that under ordinary circumstances the consequence of copying more than a minimal amount of unpublished expression is to be considered an infringer (as opposed to being enjoined, as the original passage read).

While legislative efforts to clarify that there is no per se rule barring fair use of unpublished works were being debated in the Congress, a third case was wending its way through the Second Circuit, Wright v. Warner Books, Inc. The trial judge this time was then-district (subsequently Circuit) Judge John Walker. The Wright case involved unpublished letters of famous author Richard Wright sent to the biographer. Suit was brought by Wright’s widow.

Judge Walker found, on a motion for summary judgment, that fair use protected the biographer’s quotation of excerpts from the letters. The Second Circuit affirmed in an opinion by Judge Meskill. Judge Meskill’s opinion carefully analyzed both the purpose of the fair use defense and each of the four statutory factors. Regarding the first factor—the purpose of the use—Judge Meskill agreed with Judge Walker that biographies “fit comfortably” within the statutorily enumerated fair use purposes and that this factor “clearly favors” the biographer. The second factor—the nature of the work, here unpublished material—led to the only disagreement with Judge Walker. Judge Walker had weighed this factor in the biographer’s favor. Unpublished works, are, according to the court of appeals, “the favorite sons of factor two.” After quoting from the Supreme Court’s Harper & Row opinion and the Second Circuit’s Salinger and New Era opinions, the Wright panel concluded: “Our precedents, then, leave little room for discussion of this factor once it has been determined that the copyrighted work is unpublished.” The third factor—the amount and substantiality of the material used—and the fourth factor—the market effect of the use—were both weighed in the biographer’s favor.

In summary, three of the four factors weighed in the biographer’s favor. The only factor weighed against the biographer was the unpublished nature of the work, thereby joining the very issue addressed by H.R. 4412. The court of appeals’ discussion on this issue is instructive:

The district court correctly held that defendants were entitled to summary judgment. Three of the four fair use factors clearly favor the defendants. The one that does not—the nature of the copyrighted work—raises an obstacle to this conclusion, but not an insurmountable one. * * * Neither Salinger, Harper & Row, nor any other case, however erected a per se rule regarding unpublished works. The fair use test remains a totality inquiry, tailored to the