TALKERS Legal Series on Fair Use (Part 4): The Amount and Substantiality Factor
By Matthew B. Harrison
TALKERS, VP/Associate Publisher
Harrison Media Law, Senior Partner
Goodphone Communications, Executive Producer
With the growing popularity of talk media programs utilizing segments of other shows as key elements of scrutiny and commentary in their programming (“Clip Jockey Format” as coined by Michael Harrison), it is important that media content creators be aware of the subtle and often ambiguous rules applying to the legal aspects of this practice under the heading of fair use.
This is the fourth installment of a multi-part TALKERS Legal Series on Fair Use for the Media Creator. The first installment is here. The second installment is here. The third installment is here.
The “amount and substantiality” factor in fair use focuses on how much of the copyrighted material is used and whether that portion is essential to the original work. Despite seeming obvious, this factor can be nuanced, and determining how much use is fair can be challenging because it’s not just about the quantity but also about the significance of the portion used.
Is It Difficult to Distinguish?
In many cases, it’s not always obvious what qualifies as a “small” or “insignificant” portion. Courts often consider both the quantity, and the quality of the material used:
• Quantity: This factor asks if only a small part of the work has been used. Using a shorter clip from a video or a few sentences from a book could be more justifiable as fair use. But what qualifies as “small” can vary depending on the work—10 seconds from a short film may be seen differently from 10 seconds in a longer documentary.
• Quality: Even if a creator only uses a small part of the original work, using its “heart” or most memorable part might still count as substantial. For example, a few lines from a song’s chorus, though short, could be considered significant enough to impact fair use status.
Example Cases Highlighting Amount and Substantiality
To better understand this, it’s useful to look at cases that illustrate when the amount used was deemed fair or not:
• Harper & Row v. Nation Enterprises (1985): This case involved a magazine that used a few hundred words from an unpublished memoir by President Gerald Ford. Although this was a small percentage of the memoir, the excerpt contained key insights into Ford’s decision to pardon Nixon. The court held that this use was not fair because it included the most “substantial” and critical part of the memoir, even though the total percentage of text used was minimal.
• Campbell v. Acuff-Rose Music, Inc. (1994): Here, the hip-hop group 2 Live Crew used portions of Roy Orbison’s song “Oh, Pretty Woman” to create a parody. Even though the song’s recognizable parts were used, the new work was transformative in its purpose (a parody rather than a love song). Because the group’s use was a small part relative to the song’s total content and had a new purpose, the court found it was fair use.
Many books and law school classes have been devoted to this question – so let’s focus on Application in Media and Broadcasting
In radio and broadcasting, this factor is often relevant when using clips, songs, or interview segments from other sources. Using a small clip to support commentary or criticism is more likely to be considered fair use, especially if it does not contain the “heart” of the original work:
• Commentary on a Speech: If a talk show uses a brief part of a public figure’s speech to critique it, the fair use factor may weigh in favor of the radio station if it doesn’t take the most memorable segment.
• Use of Music in Shows: Music clips used for thematic transitions or commentary must be kept brief, as lengthy or highly recognizable parts can affect fair use status. Playing just a few bars might qualify, but a chorus or instrumental hook would likely cross the line. This is less of a mine field in traditional broadcast radio as existing license agreements, such as with ASCAP or BMI, may allow for such uses anyway. However, when focusing on the internet – it’s a completely different matter as no licenses have been formally given, yet there is an incentive for the copyright holder to have their work shared. It’s not cut and dry – which is why the following takeaways should be helpful when navigating forward.
Key Takeaways for Media Creators
• Use Minimal Amounts: The less you use, the more defensible your case for fair use, especially if you avoid the most recognizable parts.
• Avoid the “Heart” of the Work: Select portions that serve your purpose without including critical or memorable parts of the original material.
• Transformative Purpose Matters: If the use adds new meaning or serves a different function (e.g., satire, critique), it’s more likely to be deemed fair, even if it includes some key elements.
Summary
Understanding how much of the work a media creator can use while staying within fair use guidelines can be tricky, as this factor requires balancing quantity and significance. Media creators should focus on minimal use that contributes meaningfully to commentary, criticism, or other transformative purposes.
Media attorney, Matthew B. Harrison is VP/associate publisher, TALKERS; Senior Partner, Harrison Media Law; and executive producer, Goodphone Communications. He is available for private consultation and media industry contract representation. He can be reached by phone at 724-484-3529 or email at matthew@harrisonmedialaw.com
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