Respecting the Second Factor
By Eric Harbeson | February 25, 2026
Rodney Dangerfield got so little respect even modern computer screens don’t give him any color.Check out our series of posts marking the 50th anniversary of the Copyright Act of 1976, as well as a variety of other Fair Use Week blogs and events around the country.
Like Rodney Dangerfield, the second factor gets no respect. It deserves better.
Everyone loves an underdog, and one of my favourites is the second fair use factor—“The nature of the copyrighted work.” The Second Circuit’s Judge Pierre Leval, in Authors Guild v. Google, neatly summed up the view of nearly every court that has taken up a fair use question: “The second factor has rarely played a significant role in the determination of a fair use dispute.” At best, most fair use opinions devote no more than a couple of paragraphs to the second factor.
I’m imagining a personified second factor, sitting on a bar stool in front of a stand-up mic: “I tell ya, I don’t get no respect. A judge tried to write about me and even he ran out of things to say.” (don’t worry, I’m not quitting my day job).