Factor 3, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, addresses how much of a copyrighted work was copied? If you included excerpts from an existing book in your new book, did you use a paragraph? a page? a chapter? multiple chapters? The larger the portion of the copyrighted work used, the more likely this factor is going to favor the copyright holder.
When it comes to photographs, the entire image is often used, which comes as no great surprise since a photo isn’t very big to begin with. As with the nature of the copyrighted work factor, this factor is often given little weight in a Fair Use case concerning photographs. In Fitzgerald v. CBS Broadcasting, the court noted that:
…this factor weighs less when considering a photograph—where all or most of the work often must be used in order to preserve any meaning at all—than a work such as a text or musical composition, where bits and pieces can be excerpted without losing all value.”
In Bill Graham Archives v. Dorling Kindersley, Ltd., for its new book Grateful Dead: The Illustrated Trip, Dorling Kindersley Publishing used images of the entire posters and tickets designed by artist Bill Graham for the band The Grateful Dead. In analyzing the first factor, the court ruled that using Graham’s artwork, which was originally meant for promotion, in a book documenting history was indeed transformative, and because of this, it did not weigh against fair use to show the entire artwork because it was necessary to do so.
In Kelly v. Arriba Soft Corporation, the Ninth Circuit Court of Appeals noted that using the full image does not weigh against Fair Use if the entire image is needed to serve the creator’s purpose. In this case, thumbnails were created from photographs and used as navigational aids in a photo search engine (just like Google returns thumbnails in the results of its photo searches). The thumbnail must be comprised of the entire image, otherwise nobody can know what they will see when they click the photographic link to view the full-size image.
Using only a portion of a photograph, however, does not always weigh in favor of Fair Use, particularly if the portion used is the most important part. Brammer v. Violent Hues Productions, LLC is a recent and infamous case in which Russell Brammer’s photo was used on a website to advertise a for-profit film festival. After a completely inept judge for the District Court for the Eastern District of Virginia found the use of Brammer’s photo fair for every one of the four factors—which left the entire legal community stunned—an appeals court overturned every point of his ruling. In regard to Factor 3, the appeals court reasoned that because Violent Hues cropped the insignificant parts of the photo and kept only the most important subject matter, despite only using a small portion of the image, the use was not fair. (Brammer v. Violent Hues is a shining example of what I said earlier about federal judges oftentimes having no clue about the laws they are judging.)