“The clear implication of the third factor is that a finding of fair use is more likely when small amounts, or less important passages, are copied than when the copying is extensive, or encompasses the most important parts of the original.” Authors Guild, Inc. v. Google Inc., 804 F.3d 202. “In general, it does not constitute a fair use if the entire work is reproduced. Nonetheless, exceptions exist.” 4 Nimmer on Copyright § 13.05 (2018).
Substantial Amount Used – Examples
Authors Guild, Inc. v. Google Inc., 804 F.3d 202 (2d Cir. 2015) - Google created a text-searchable database of millions of books by making digital scans of the entirety of each book.
Fox News Network, LLC v. TVEyes, Inc., 883 F.3d 169 (2d Cir. 2018) - TVEyes, an internet media company, continuously recorded all of the content on about 1,400 television and radio stations and imported the content into a text-searchable database. TVEyes' business and professional clients searched the database to locate and view video segments that mentioned their searched terms.
Non-Substantial Amount Used – Example
Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991) - A scholarly biography of poet Richard Wright quoted from unpublished letters and journal entries. The quotations amounted to less than 1% of the letters or of the journals. The Court noted, "It is clear that [the defendant] utilized a very small portion of those letters."