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Fair Use of Copyrighted Works

Factor 3: The Amount and Substantiality Taken

The third factor courts consider is the amount of the original work that is taken, and its "substantiality"--that is, how important it is to the original work. The less of a work that is taken, the more likely it is to be fair. But even the whole work can be taken, if it is for a fair and legitimate purpose. The Supreme Court has held, for instance, that copying an entire TV show for purposes of home viewing at a later hour is fair use. (Sony v. Universal City Studios).

On the other hand, a use might be unfair even if it only takes a small percentage of the work, if that part is the "heart of the work". When The Nation reprinted only about 300 words from ex-President Gerald Ford's memoirs in the course of a news article, the Supreme Court said it was not fair use, in large part because The Nation had taken the "heart of the work". (Harper & Row v. Nation Enterprises.)

Parodies present a unique issue under the third factor. Courts often allow parodists to take at least enough to "conjure up" the original work. be taken. And since it is often the most distinctive, identifiable aspects — the heart of the work — that most effectively conjure up the work, the heart-of-the-work rule does not weigh against parodies. Instead, following the Supreme Court's decision in a case where 2 Live Crew parodied a Roy Orbison song, courts examine how much more was taken than necessary — although parodists need not necessarily restrict themselves to the minimum necessary. (Campbell v. Acuff-Rose Music.)

This is the source of the infamous parody-satire distinction: a parody, since it is making fun of the original work, must use the original work to some extent. But a satire is making fun of some aspect of society or culture, and presumably need not rely on the original copyrighted work at all -- so, according to this theory, even a small amount of copying is unnecessary for the purpose of satirizing society.

Just because a work is a satire, though, does not necessarily mean it's not a fair use; a court must still balance the four factors. But some courts have looked askance at satires, reasoning that any "unnecessary" use of a work should be considered unfair. In one case, for example, a court found that a satire of the O.J. Simpson case that borrowed the rhyme scheme from the Dr. Seuss books was not a fair use. (Dr. Seuss Enterprises v. Penguin Books).

If the amount taken is so small that it is trivial, or not even recognizable, then the copying is considered de minimis -- meaning too small to be a legal issue at all. Since de minimis copying is not a violation of copyright at all, courts don't need to consider a fair use defense. When only a small amount is taken, a defendant would ordinarily claim that the use was de minimis, and if not de minimis, then fair.

In music sampling, one court has taken the extreme view that the de minimis rule simply does not apply, so that copying even three notes was infringing. (Bridgeport Music v. Dimension Films). The court left open the possibility of a fair use defense. But other courts have recognized that three notes is likely de minimis. (Newton v. Diamond.)

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