How Much Is Too Much?: Campbell and the Third Fair Use Factor

INTRODUCTIONFair 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.1The Supreme Court's most recent and sustained attention to copyright's fair use doctrine came in 1994 in Campbell v. Acuff-Rose Music, Inc.,2 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."3This 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."4 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 COURTA. Fair Use Cases Before CampbellBefore 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., 5 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.6 In Harper & Row, Publishers, Inc. v. Nation Enterprises,7 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. …