This Comment will analyze how courts should interpret the four statutory factors in determining a fair use defense for once private documents, such as love letters, and how the courts need to add First Amendment and public policy concerns in deciding whether to allow the fair use. First, this Comment addresses the current definition of the fair use doctrine and its impact on unpublished works. This Comment will also address the need to create a new fair use defense test to include the First Amendment concerns of secondary authors who cannot create their works without the copyrighted information. Secondly, this Comment discusses the Second Circuit's rationale in applying a per se ban on the use of unpublished, copyrighted materials by secondary authors through the application of the four fair use statutory factors. Moreover, this Comment will provide the Second Circuit's rationale in protecting unpublished works, including the amendment to the fair use defense that was created to stop the per se ban on the use of unpublished materials. Further, the analysis will show the absolute necessity for the courts to include a secondary author's First Amendment concerns and the importance of the public policy concerns. Finally, this Comment will provide a rationale on how the fair use test should be applied in the future.
Sonali R. Kolhatkar, Yesterday's Love Letters are Today's Best Sellers: Fair Use & the War Among Authors, 18 J. Marshall J. Computer & Info. L. 141 (1999)