(2) the nature of the copyrighted work
While the Court agreed with Navasky that the law generally recognizes a greater need to disseminate factual works than fiction the fact it was unpublished gave Ford more rights than if it had already been disseminated.
The author gets the right of first publication.
The fact that a work is unpublished is a critical element of its "nature."
The memoir was essentially facts and “the law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy,” but Ford’s work was also unpublished and this was “key.”