[rayiner]

Obviously, non-copyrightability is the best possible outcome, because then such cases wouldn't even be worth bringing. But the opposite holding doesn't necessarily mean every such case has to go to a jury trial. If the facts are such that no possible jury could find in favor of one party, a fair use question may be disposed of on summary judgment: https://www.eff.org/document/opinion-granting-summary-judgme....

Getting a case to summary judgment isn't cheap, but the fair-use factors aren't super fact intensive: http://fairuse.stanford.edu/overview/fair-use/four-factors. They center around the nature of the work itself, which can be described in pleadings, rather than specific facts about the creative process that might require extensive discovery.