Heart of the Work

When evaluating the third fair use factor, the amount and substantiality of a use, courts do not rely solely on the size of the portion, but also its significance to the work. Using a particularly significant portion of a work — the “heart” of the work as stated in Harper — even if it’s a small portion, may weigh against fair use. The following are two case examples; in the first, the use constituted the "heart" of the work, weighing against fair use, while in the second, despite the significance of the portion, the court determined the third factor to be neutral.

Heart of the Work
Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985)
The Nation, a political magazine, quoted about 300 words from President Gerald Ford's unpublished 454-page autobiography. The quotations were primarily from the chapters on Nixon's pardon— the most interesting and moving parts of the book. The Court claimed that the excerpt constituted the "heart" of the work, and that although the portion was small, the substantiality was significant. This factor, among others, led to the ruling that The Nation's use was not protected under fair use.

Not the Heart of the Work
L.A. News Serv. v. CBS Broad., Inc., 305 F.3d 924 (2002)
Court TV broadcasted a few seconds of riot footage filmed by Los Angeles News Service (LANS), "Beating of Reginald Denny," to promote its coverage of a trial involving those in the video. Concerning the third factor the court stated, "we do not gainsay the importance of the frames that Court TV used — if not the heart, they amount at least to a ventricle — but we think that this factor weighs less in LANS's favor ... Indeed, weighing the brevity of the portion copied against its significance, this factor appears neutral." When weighing the use's amount compared to its substantiality, the court determined these considerations to balance out, and ultimately ruled in favor of fair use.