Fair Use : Factor Two
(2) The nature of the copyrighted work;
This second factor focuses upon the copyrighted work, not the subsequent, "infringing" work. Courts have examined whether the original work is published or unpublished. Additionally, courts have considered whether the original work was "creative, imaginative, and original" and whether it "represented a substantial investment of time and labor made in anticipation of a financial return."
In
Newton v. Diamond, (a.k.a.
The Beasties Boys "Pass the Mic" case), the court began its
discussion by noting that "not every element of a song is per se
protected." Only the "original and non-trivial" portions
of the plaintiff's composition may receive copyright protection. It should
be noted here that the Beastie Boys licensed the sound record rights to
the sample but the plaintiff sued for composition
infrigement. The court's focus was whether the sound recording of
an abstract three note flute sequence was protected by copyright.
The court determined that while a "musical composition's copyright protects the generic sound that would necessarily result from any performance of the piece," the defendant's own unique performance techniques of the three note sequence made it distinguishable. Those performance techniques received protection only from the sound recording which the Beastie Boys properly licensed. The court then attempted to determine if three note sequence itself could receive protection and whether the defendant's use of the sequence, which had lasted six seconds in the original song constituted infringement.
The court held that the three note sequence of the plaintiff's song was not protectable though. The court also distinguished cases where as few as three words received protection, stating that "unusual words or sounds are necessarily more distinctive than a few generic notes of music."
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