HOW MUCH IS TOO MUCH?: CAMPBELL AND THE THIRD FAIR USE FACTOR
R. Anthony Reese(fn*)
Abstract: The Supreme Court's decision in Campbell v. Acuff-Rose Music, Inc. is probably best known for articulating the importance of transformativeness in analyzing fair use claims. The opinion gave less-noticed but important guidance on the third statutory fair use factor, which looks at the amount and substantiality of the portion of the plaintiff's copyrighted work that the defendant used. Campbell explained that courts should evaluate this factor by inquiring whether the amount the defendant used was reasonable in light of her purpose. This Article examines the appellate fair use decisions since Campbell to investigate whether and how lower courts have used Campbell's reasonableness approach. The Article pays particular attention to cases in which the defendant claiming fair use has used the plaintiff's entire work, including in ways only recently made possible by new technologies.
INTRODUCTION ................................................................................ 756
I. FACTOR THREE IN THE SUPREME COURT ........................ 757
A. Fair Use Cases Before Campbell ........................................ 757
1. Sony .............................................................................. 758
2. Harper and Row .............................................................. 760
3. Stewart v. Abend .......................................................... 762
4. Factor Three on the Eve of Campbell .......................... 762
B. Campbell's Factor Three Analysis ..................................... 763
II. FAIR USE IN THE CIRCUIT COURTS AFTER CAMPBELL .. 766
A. Methodology ...................................................................... 766
B. Distribution Among Circuit Courts .................................... 766
C. Distribution Over Time ...................................................... 767
D. Procedural Posture of the District Court Decisions Reviewed ............................................................................ 768
E. Appellate Disposition of the District Court Decisions ....... 769
F. Fair Use Outcomes on Appeal ............................................ 771
III. FACTOR THREE IN THE CIRCUIT COURTS AFTER CAMPBELL .................................................................................. 773
A. How to Weight Factor Three .............................................. 773
B. Analyzing the Reasonableness of the Portion Copied in Light of the Purpose for the Copying ................................. 778
C. Illegitimate Purposes .......................................................... 782
D. What Is "the Copyrighted Work"? ..................................... 784
E. Summary ............................................................................ 788
IV. FACTOR THREE AND "ENTIRE WORK" CASES ................. 788
A. Weighting Factor Three in Entire Work Cases .................. 789
B. Analyzing Defendant's Use of the Plaintiff's Entire Work ................................................................................... 791
1. Quotation or Citation of Campbell ............................... 792
2. Types of Work Used .................................................... 794
a. Still Images ............................................................ 794
b. Literary Works ....................................................... 798
c. Other Types of Works ........................................... 801
3. Reasonableness and Use of Entire Visual Work .......... 802
C. Factor Three and New Technological Uses of Entire Works ................................................................................. 804
CONCLUSION .................................................................................... 812
INTRODUCTION
Fair use limits the rights of copyright owners. Someone who uses a copyrighted work without permission in a way that would ordinarily come within one of the copyright owner's exclusive rights nevertheless does not infringe if the use qualifies as fair use. Fair use originated as a judge-made doctrine, and was only codified in the statute with the passage of the 1976 Copyright Act, which took effect on January 1, 1978. Section 107 of the Act sets out a nonexhaustive list of four factors that courts are to consider in determining whether any particular use qualifies as a fair use.(fn1)
The Supreme Court's most recent and sustained attention to copyright's fair use doctrine came in 1994 in Campbell v. Acuff-Rose Music, Inc.,(fn2) a case in which the owner of the copyright in the musical work "Pretty Woman" (made famous in Roy Orbison's recording) sued 2 Live Crew for creating a rap version of the song. Academics and courts have paid substantial attention to the way the Supreme Court in Campbell developed the analysis of the first of the four statutory fair use factors and gave a prominent role to the question of whether a defendant's allegedly infringing use was "transformative."(fn3)
This Article explores an aspect of the Campbell decision that has attracted less attention-the Court's articulation of how courts should analyze the third fair use factor. That factor calls for considering "the amount and substantiality of the portion used [by the defendant] in relation to the [plaintiff's] copyrighted work as a whole."(fn4) In other words, how much of the plaintiff's copyrighted work did the defendant use? And how substantial was the portion that the defendant used when compared to the plaintiff's entire copyrighted work.
Part I traces the relatively short history of fair use in the Supreme Court. Before Campbell, the Supreme Court had provided little guidance on how to apply factor three in the fair use analysis. Campbell filled that gap by announcing that the third factor calls for considering whether the defendant used a reasonable amount of the plaintiff's copyrighted work. The remainder of the Article looks at how this reasonableness analysis has fared in the circuit courts in the two decades since Campbell was decided. It studies the sixty-one post-Campbell appellate decisions that have engaged in fair use analysis. Part II details the methodology of the study and describes a number of general characteristics of appellate fair use decisions since Campbell. Part III looks specifically at the treatment of the third factor in the opinions in the study-both at how appellate courts weight that factor, and to what extent those courts expressly articulate Campbell's reasonableness approach in their analysis. Finally, Part IV focuses on the relatively large portion of the appellate fair use decisions that involve a defendant's use of the plaintiff's entire work. In particular, this Part argues that courts have used Campbell's reasonableness approach in finding fair use when a defendant's use of entire copyrighted works involves a relatively new technological use.
I. FACTOR THREE IN THE SUPREME COURT
A. Fair Use Cases Before Campbell
Before the Campbell decision, only three Supreme Court opinions addressed the application of Section 107's factors to a fair use claim. In Sony Corp. of America v. Universal City Studios, Inc.,(fn5) owners of copyrights in movies and television shows charged the makers and distributors of videocassette recorders (VCRs) with liability for copyright infringement allegedly committed when the defendants' customers used their VCRs to record television programming broadcast over the air. In deciding the case, the Court considered whether VCR users were engaged in noninfringing fair use.(fn6) In Harper and Row, Publishers, Inc. v. Nation Enterprises,(fn7) the Court considered fair use in the context of a claim that the magazine The Nation infringed when, shortly before the publication of former President Gerald R. Ford's memoir, the magazine published an article that quoted passages from the memoir without permission.(fn8) And in Stewart v. Abend,(fn9) the Court considered whether the continued showing of Alfred Hitchcock's movie Rear Window infringed on the copyrighted short story on which the movie was based once the license to use the short story expired. The "amount and substantiality" of the guidance that each of those opinions provided on the application of the third factor was relatively modest.
1. Sony
The first of the three pre-Campbell opinions only briefly addressed how to consider the "amount . . . of the portion used" by the defendant in comparison to the plaintiff's entire work.(fn10) The 1984 decision in Sony Corp. of America v. Universal City Studios, Inc.,(fn11) the Supreme Court's first interpretation of Section 107, considered whether "time shifting" a television program using a VCR was fair use. The Court defined time shifting as recording a television show when it was broadcast by an over-the-air television station and then later watching the recorded program and erasing it.(fn12) The Court concluded that a VCR user's time-shifting constituted fair use.(fn13)
The Sony majority opinion offered little analysis of the third factor. Indeed, the majority analyzed both the second and third factors together in a single sentence:Moreover, when one considers the nature of a televised copyrighted audiovisual work, see 17 U.S.C. § 107(2) (1982 ed.), and that time-shifting merely...
