This factor will generally weigh in favor of fair use if the work to be used is factual in nature (scholarly, technical, scientific, etc.), as opposed to works involving more creative expression, such as plays, poems, fictional works, photographs, paintings, and so on. Fair use does not apply to some works, such as standardized tests, workbooks, and works that are meant to be consumed. The case for fair use becomes even stronger when there are only a few ways to express the ideas or facts contained in a factual work. The line between unprotected “facts and ideas” on the one hand and protected “expression” on the other, is often difficult to draw. If there is only one way or very few ways to express a fact or an idea, the expression is said to have merged into the fact/idea, and there is no copyright protection for the expression.
Fair use applies to unpublished works as it does to published works, but the author's rights of first publication may be a factor weighing against fair use if a work is unpublished.