Circuit’s decision in Substance, Inc., here the plaintiff has not even bothered to address the substance of the fair use question, providing this court with absolutely no indication of any evidence or factors outside of the episode in question that could even possibly influence the resolution of the fair use issue in the plaintiffs favor. Brownmark has not provided a reason, nor can this court speculate as to why this matter cannot be resolved by looking to the pleadings and the materials incorporated by reference in the pleadings. Consequently, the court finds nothing wrong with addressing the substance of the fair use issue through the Fed.R.Civ.P. 12(b)(6) motion. See generally Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (<HOLDING>); see also Fisher v. Dees, 794 F.2d 432, 435-36
holding that a court may conduct a fair use analysis as a matter of law where the facts are presumed or admitted holding that fair use is an affirmative defense holding that public use of a beach was presumed to have originated by permission and to have continued as a license until some act  of the public or public official asserted the use to be exercised as a matter of right rather than privilege holding that it may be decided as a matter of law recognizing that when the facts alleged in the administrative complaint are not disputed this leaves only conclusions of law to be drawn as to whether the admitted facts constitute a violation of the statutes as charged and penalties to be imposed