Page:Hachette Book Group v. Internet Archive (2023).pdf/35

 are relevant to this analysis: (1) “whether the work is expressive or creative, such as a work of fiction, or more factual, with a greater leeway being allowed to a claim of fair use where the work is factual or informational,” and (2) “whether the work is published or unpublished, with the scope of fair use involving unpublished works being considerably narrower.”, 467 F.3d 244, 256 (2d Cir. 2006).

The second factor favors the Publishers. “[C]reative expression for public dissemination falls within the core of the copyright’s protective purposes.”, 510 U.S. at 586. The Works in Suit are published works of fiction and non-fiction. The fiction books, as paradigmatic creative works, are close to the core of intended copyright protection. ,, 2015 WL 11170727, at *5. But the Copyright Act also values and seeks to protect the non-fiction Works in Suit, which contain “subjective descriptions and portraits … whose power lies in the author’s individualized expression,”, 471 U.S. at 563, and are “far removed from the … factual or descriptive work more amenable to fair use,” , 92 F. Supp. 2d at 351;, 166 F.3d 65, 72–73 (2d Cir. 1999) (explaining that “predominantly factual news articles” are “less close to the core