Authors and scholars would love to be able to use unpublished works in their own works, but they must do so carefully so that they do not run afoul of copyright law and publisher restrictions. Historically, it has been tough to prove a fair use when dealing with unpublished works. There is no per se rule against finding a fair use of an unpublished work, but the holding of Harper & Row v. Nation Enterprises is applicable. It states, “that for the purposes of the second statutory factor, the unpublished nature of the work is ‘a key, though not necessarily determinative factor tending to negate a defense of fair use.'”
There are four factors of fair use:
- The purpose and character of the use.
- The nature of the copyrighted work – Scope of fair use broader for factual work. Look at creativity, imagination, investment of time in anticipation of financial return.
- The amountnt and substantiality of the work used.
- The effect of the use on the market value of the original.
Even if the second factor weighs in favor of the person who owns the copyright to the unpublished work, if the first, third, and fourth factors weigh heavily in favor of the claimed infringer, he may still prevail under a finding of fair use.
But then there is the chilling effect that cases have had on the publishing industry. Even if an author wishes to take a chance and challenge his ability to make a fair use of an unpublished work, he will likely be blocked by a major publisher. That is because many publishers are requiring authors to get written permission from copyright holders before using any unpublished works, even though it is likely that they would fall under the fair use doctrine.
Be careful when using any unpublished works and make sure to consult an attorney about this and any other intellectual property concern you may have.