How Much Is Too Much?: <i>Campbell</i> and the <i>Third</i> Fair Use Factor

The Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc. is probably best known for articulating the importance of transformativeness in analyzing fair use claims. The opinion gave less-noticed but important guidance on the third statutory fair use factor, which looks at the amount and substantiality of the portion of the plaintiff’s copyrighted work that the defendant used. Campbell explained that courts should evaluate this factor by inquiring whether the amount the defendant used was reasonable in light of her purpose. This Article examines the appellate fair use decisions since Campbell to investigate whether and how lower courts have used Campbell’s reasonableness approach.

The Article pays particular attention to cases in which the defendant claiming fair use has used the plaintiff’s entire work, including in ways only recently made possible by new technologies.