This element examines the work that is being used, and might be interpreted more narrowly or widely depending on the type of work. Unpublished works, such as email or manuscripts not yet published can weigh against a ruling of fair use. The courts believe that the originator of the work (copyright owner) gets to determine when it is 'first published.'

Courts also tend to protect works of art more broadly than nonfiction works. Hence, art, music, feature films, poetry and other creative endeavors are more likely to be protected from reuse under the 'fair use' doctrine.