The Third Fair Use Factor

 The third fair use factor reads:

“The amount and substantiality of the portion used in relation to the copyrighted work as a whole.”

The phrasing of this assumes the whole work isn’t copied since the section uses the word “portion,” but the copying of entire works has long been permitted when the context and the other fair use factors weigh in favor of doing so, the Sony Betamax decision being the first prominent example, where copying of entire audiovisual works for time-shifting was found to be fair use.  At the other end of the spectrum, copying a small portion of the work but which is deemed to be the “heart” of the work usually weighs against fair use. 

Debates over what is the “work” can influence how the third factor is weighed, as seen in a March ruling 12, 2025 from the Second Circuit, Wilder v. Holland, 2025 WL 783642.  This case, like many fair use cases, is between two authors, here two faculty members at the City University of New York (CUNY), although at difference branches and levels.  Plaintiff had written material for a developmental course intended to improve faculty members’ ability to teach quantitative reasoning. Defendant was a co-director of the faculty development program plaintiff’s work was intended for.  Defendant used portions of plaintiff’s work in a breakout session at a community college to 12-20 attendees. The purpose of the presentation was to assess best practices for recruiting and compensating faculty members. The opinion does not explain how the use of plaintiff’s work fit into this purpose, but the court of appeals agreed with the trial court that this purpose was transformative since it was for comment, teaching, and scholarship. 

The second factor weighed in defendant’s favor since the material was factual in nature.  Given the academic nature of the material, the potential market as deemed small. The only possible disagreement the Second Circuit had with the trial court was on the third factor. The material at issue was one subunit of a larger 8 unit work. Defendant had copied two thirds of this subunit. This, for the trial court, tipped the third factor in plaintiff’s favor. The circuit had a slightly different approach:

As a preliminary matter, we question whether Unit 7H is the appropriate denominator against which to measure Hoiland's use. Unit 7H is a subunit of one of eight units comprising a cohesive course curriculum on quantitative reasoning. In NXIVM Corp. v. Ross Institute, we rejected plaintiffs' attempt to “narrow the denominator ... by conceptualizing [a] single course manual as separate ‘modules.’ ” 364 F.3d 471, 480–481 (2d Cir. 2004). We said that allowing such gamesmanship would make the third fair use factor “depend ultimately on a plaintiff's cleverness in obtaining copyright protection for the smallest possible unit of what would otherwise be a series of such units intended as a unitary work.” Id. at 481. Wilder, who claims to have “developed and created most of the instructional material” in the program herself seems to have intended the course material as a unitary work and—eight years later—registered a copyright over a single subunit to facilitate this suit against Hoiland. The record does not specify exactly what portion or percentage of the course came from Wilder's pen. But even assuming as Wilder argues that Unit 7H is the proper denominator, we would agree with the district court that the third factor at best weighs slightly in favor of Wilder and is not enough to overcome a finding of fair use.

Seems like the very scenario NXIVM cautioned against, but in the end it didn’t matter since fair use was found. 



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