Entire Work

Regarding the third factor, amount and substantiality, courts have agreed that “the clear implication ... 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). On copying works in their entirety, it has been said that “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)).

The following are three case examples; in the first two, works were copied in their entirety, while in the third, only a small amount of a work was copied. The second example of copying an entire work showcases the type of "exception" that Nimmer refers to.

Copying Entire Works
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 over 1,400 television and radio stations and imported the content into a text-searchable database. TVEyes' business and professional clients could search the database to locate and view video segments that mentioned their searched terms. The circuit court found that the searching function was fair use, but that the watching function, and additional functions like downloading and sharing, were not. Further, the courts weighed the third factor against fair use because “TVEyes makes available virtually the entirety of the Fox programming that TVEyes users want to see and hear.” Ultimately, because of the additional functions, and the third and fourth factors, the court ruled against TVEyes and against a fair use finding.

Authors Guild, Inc. v. Google Inc., 804 F.3d 202 (2d Cir. 2015)
Google created a text-searchable database of millions of books by digitally scanning entire books. The circuit court agreed with the district court that in this case, copying entire texts did not definitively merit an unfair use. This is because even though Google reproduced full texts, it did limit the amount of text displayed to users. Additionally, Google's digitization was found to be transformative, and the market effect was deemed to be relatively low. For these reasons, both the Second Circuit and the district court ruled that Google's use was fair, demonstrating an exception to Nimmer's above statement on copying entire works not constituting fair use.

Not Copying Entire Works
Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991)
A scholarly biography by Margaret Walker on the 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 noting, "it is clear that [the defendant] utilized a very small portion of those letters." Because the excerpts were neither the "heart" of the work nor of a substantial amount, the third factor weighed in favor of fair use. Likewise, the first and fourth factors also favored fair use.