Copyright Fair Use: How Much Copying is Too Much Copying?

“…no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” These words were written by Judge Learned Hand in 1936. His point was that a taking of someone else’s expression will not be excused merely because it is insubstantial in quantity when held up for comparison to the infringing work.

Years back a copyright defendant client related copyright lore as a defense to his actions. He swore up and down that copying was permissible as long as not more than 10 percent of the source work was taken. Many times that belief has been mistakenly repeated. Many of the older, bedrock, principles of copyright practice are worth repeating. Perhaps this repetition comes from being the teacher that I suspect is part of my DNA.

The “ancient” case of Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) should absolutely disabuse anyone of this silly notion. Here, the Nation lifted verbatim quotes from an author’s original and yet to be published work, totaling 300 to 400 words, and being a small percent of the total Nation’s article at issue. The quotes were Gerald Ford’s own words written to lend authenticity to his about to be published memoirs.

The Court analyzed whether the use of Ford’s quotes in the Nation’s article was a fair use, as the Nation contended it was. One of the statutory factors involved in a fair use analysis as expressed in Section 107 is the question of “amount and substantiality” of the portion used. Here, the Nation attempted to defend on the basis of its use of only 300-400 words from a 7,500 word article, claiming its taking was not substantial. In fact, it had successfully convinced the Second Circuit the amount taken was qualitatively insignificant, and therefore its taking was unsubstantial as a whole.

The trial court and the Supreme Court both found that although the quantitative taking was small, the effect was mighty; the words taken were “essentially the heart of” Ford’s memoirs. What was taken was described as the “most interesting and moving parts of the entire manuscript;” the “most powerful passages in those chapters.” The Nation’s article was written around the published quotes which served as the article’s focal point. While the Second Circuit measured the taking only quantitively, by holding the taking up against the work from which it was taken, the Supreme Court focused not on the number of words in each work, but on the qualitive value of those words to the work from which they were taken and the value of those words to the taker.

Clearly, it’s not the number of words that count, but their importance to the work from which they were copied. These copied words dealt with Ford’s pardon of Richard Nixon. While a few might have bought his book to learn about his college football efforts, it is much more likely his readers were primarily, if not only, interested in the pardon.

So much, then, for the urban lore that it is okay to take someone’s work as long as you only take less than 10 percent of the copied work. If Beethoven’s 5th Symphony was protectable by copyright, would anyone argue that a taking of the first four notes was not infringement?