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What's up with Fair Use? Part 4: The Third Factor (How much can you use?)

California game lawyer continues his look at the Fair Use doctrine in copyright law with an examination of the third factor, the amount and substantiality of the portion used.
While this may seem simple, it often isn’t.

Here we are. Part four. We’ve looked at Fair Use in general, as well as the first and second factors that courts use to analyze a Fair Use defense. Now we’ve reached the third factor –

The Amount and Substantiality of the Portion Used:

The third factor, derived from Section 107 of U.S. copyright law, looks at “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” While this may seem simple, it often isn’t. What is the “copyrighted work as a whole,” when there are multiple individual works within that whole, such as a collection of photographs? If they use one entire photograph, do we consider that all of the thing, or just one small portion of the greater collection?

To answer this, courts use two factors (we’ll call them sub-factors).

The “quantitative” sub-factor:

If nothing else, this just illustrates the inconsistency inherent in a Fair Use analysis. You never really know what you will get.

On one hand, the court will look at the portion in a strictly quantitative way. Usually (and there are, of course, exceptions) if one takes the entire work, that will not be seen as a Fair Use. When Google or Amazon does it by using thumbnails of book covers and photographs in search results, courts have found that this factor falls in favor of a Fair Use.

However, copyright scholars Melville and David Nimmer note that the quantitative analysis “should be weighed using as metrics works that comprise self-contained units, rather than against arbitrarily small or large mixtures.”

As an example of this gone wrong, they point out a case where a magazine published photos from a secret wedding ceremony. The dissenting opinion used the entirety of the collection of photos taken from the couple’s trash can, including photos not of the wedding, as the “copyrighted work.” The majority opinion used the collection of wedding photos themselves as the work.

The Nimmers argue that both were wrong, and that the better option is to use each photograph as its own individual work. If nothing else, this just illustrates the inconsistency inherent in a Fair Use analysis. You never really know what you will get.

 

Round and Round we go on the Fair Use analysis Merry-go-Round!

Round and Round we go on the Fair Use analysis Merry-go-Round!

 

The “qualitative” sub-factor:

Nearly as inconsistent is the other sub-factor, looking at the qualitative amount used.

Nearly as inconsistent is the other sub-factor, looking at the qualitative amount used. One famous case from the Supreme Court found that this factor weighed against a publisher who used just 300 words from a 200,000 word book. Those 300 words, however, were the “heart” of the book. Therefore, they were qualitatively substantial.

Other case law finds that using seven seconds of an Ed Sullivan Show clip in Jersey Boys weighs toward Fair Use, while repeating a clip throughout a biographical film is no longer fair.

I know it when I see it:

Again, the seemingly inconsistent (or at least, difficult to predict) rulings on some of these cases illustrates the importance of not relying on anything but a slam dunk Fair Use case when building your game development business. For help with such an analysis or anything other game dev legal needs, contact a game lawyer for a free consultation or check out my FREE eBook to get a handle on game development legal issues.

photo credit: Billy Wilson Photography and Mark J P via photopin cc

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