Copyright Questions of the Month. Copy It All?

by Carol Simpson, January 2016

Q: I have heard that fair use rarely, if ever, covers the use of a whole work. To qualify for fair use, someone can only use so many pages or passages or seconds but not the whole work. Is that correct?

A: While it is generally true that the less you use the more likely your use is to be fair, you might be amazed at how many times use of an entire work is fair. For example, in one of the most important copyright court cases, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), the U.S. Supreme Court found that if use of the entire work is required to make a resulting, sufficiently transformative, derivative work, that such amounts to be used can be fair (taking into consideration all four fair use factors, of course). The case involved the use, by the rap band 2 Live Crew, of a famous Roy Orbison song, Oh Pretty Woman. One of the four copyright fair use factors is "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." The opinion explained that "even if 2 Live Crew's copying of the original's first line of lyrics and characteristic opening bass riff may be said to go to the original's 'heart,' that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim." Note that 2 Live Crew didn't copy the entire work, but it used the "heart" of the work (the instantly recognizable bass line introduction and first line of the lyrics) to allow the listener to apply his own schema of the work to the parody. It creatively adjusted the original lyrics to suit its parody plan.

Section 108(e) of the copyright statute allows a library to copy an entire work for a patron if 1) the library determines that a copy (even a used copy) cannot be obtained at a fair price; 2) the copy becomes the property of the patron; 3) the library has no notice that the copy will be used for a purpose other than private study, scholarship, or research; and 4) the library displays and has on its order form a "Warning of Copyright."

Under the Guidelines for Off-the-Air Recording of Broadcast Programming for Educational Purposes, teachers can record or request to have recorded entire television programs for use in their classes. There are restrictions on how long the recordings may be retained, but there is no limitation on the amount of the program that can be recorded.

Certain works may be copied in their entirety by a library when the purpose is to replace a copy that cannot be purchased at a fair price, and if the copy is digital, the copy is not made available outside the library. 17 U.S.C. § 108(c). An "authorized entity" (generally meaning a state library or other organization named in a law or regulation) may reproduce in their entirety previously published, nondramatic literary works when the purpose is to make those works available to those whose physical disability makes them unable to use standard print. 17 U.S.C. § 121(a). The works must be reproduced in formats designed specifically for those who are handicapped, and must not be otherwise accessible to the general public. 17 U.S.C. §121(b)(1).

So you see, the correct answer to whether one can copy "all" of anything will generally be "it depends."

This column is designed to provide accurate and authoritative information regarding application of copyright law in schools. Nothing in this column is intended to constitute legal advice, and nothing herein should be considered legal advice. If legal advice is required, the reader should consult a licensed attorney in his or her own state. Neither ABC-CLIO, LLC, nor the author makes any warranties or representations concerning the information contained in this column or the use to which it is put.