The second statutory factor is the nature of the copyrighted work. 17 U.S.C. § 107. “This factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.” Campbell, 510 U.S. 569 at 586; see, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 455, n.40 (contrasting motion pictures with news broadcasts). The second factor requires courts “to consider two elements: (1) whether the [copyrighted works at issue] are factual or creative, and (2) whether the [works] have previously been published.” Soc'y of Holy Transfig., 689 F.3d at 61.
The works at issue in this case fall closer to the factual end of the copyright spectrum than the creative end. See id. at 62. The copyrighted videos, which essentially consist of three men in a recording studio with a few lounge chairs and microphones recording a podcast on current events in popular culture and their personal lives, and which are basically the contemporary analog to television talk show clips, and which include reactions to the copyrighted material of others, are more factual than creative. See Nat'lAss'n of Gov't Emps/Int'l Bhd. of Police Officers v. BUCI Tel., Inc., 118 F.Supp.2d 126, 129 (D. Mass. 2000) (the use of a clip from a talk show without the copyright owner's consent was fair). The copyrighted works have also been published. 17 U.S.C. § 101 (“Publication is the distribution of copies ... of a work to the public.”); BUCI Tel., 118 F.Supp.2d at 129 (a live video is published when it airs); (ECF No. 51 at 16) (“[T]he Original Works ... have ... been publicly performed.”).
Because the copyrighted works at issue are published works that are more factual than creative, the second statutory fair use factor weighs in Mr. Swindelles' favor.