“Everything about Isherwood is boyish … his looks, his laugh, his candor, even the Americanisms—‘gee,’ ‘gosh,’ in his speech…. His eyes are his most striking feature; they look through you and beyond—all the way up to Karma….” [No. 155.]
In support of Kobler’s quotation of such examples of Stravinsky’s wit and power of description, the defendants argue that for a biography or critical study of an author, the doctrine of fair use gives latitude to quote protected matter for the purpose of illustrating and communicating the subject’s powers of observation and expression.
Surely there is merit to the argument. Nor is it contradicted by the recent admonition of the Court of Appeals in Salinger: “This dilemma [of choosing between loss of accuracy and vividness and risking an injunction] is not faced by the biographer who elects to copy only the factual content of letters. The biographer who copies only facts incurs no risk of an injunction; * * * [W]hen dealing with copyrighted expression, a biographer … may frequently have to content himself with reporting only the fact of what the subject did, even if he thereby pens a ‘pedestrian’ sentence. The copier is not at liberty to avoid ‘pedestrian’ reportage by appropriating his subject’s literary devices.” 811 F.2d at 96–97. Taken out of context this passage appears to bar the biographer of an author from using any of his subject’s protected expression whether done to achieve accuracy in the rendition of the subject’s idea or to illustrate comments on the subject’s writing style, skill and power. The biographer would be restricted to telling his readers, “This Mickey Spillane, boy, he sure can write.”[1] He would not be permitted to take examples of protected material to illustrate the point. A full reading of the Salinger opinion makes clear, however, that this discussion refers only to takings from unpublished copyrighted material, as to which the court ruled there is little opportunity for fair use.
I agree with the defendants that the fair use doctrine gives latitude to the biographer of an author to quote limited excerpts of published copyrighted work to illustrate the descriptive skill, wit, power, vividness, and originality of the author’s writing.
But the license is not unlimited. In assessing claims of fair use, we must consider the number, size and importance of appropriated passages, as well as their individual justifications.
The quantity of appropriated material is expressly raised by the third statutory factor, which considers “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3) (1982). Defendants argue that the appropriated segments are but a tiny percentage of the extensive Craft-Stravinsky Writings of over 2 million words, and, likewise, that the appropriations from each Craft-Stravinsky title are but a tiny fraction of that work.
The argument is not convincing. In the first place, the factors listed in the statute are not exclusive. The fact that the statute speaks in terms of the relationship between “the portion used” and “the copyrighted work as a whole” does not mean that a word count fraction derived from those numbers is the only relevant approach to the issue of the substantiality of the appropriation. In Nation Enterprises, the Supreme Court gave no importance to the fact that the appropriated words were “an insubstantial portion” of the copyrighted whole. It employed a qualitative rather than a numerical assessment, agreeing with District Judge Owen’s finding that the portion taken “was essentially the heart of the book.” 105 S.Ct. at 2233, quoting 557 F.Supp. 1067, 1072 (S.D.N.Y.1983). The Court noted also that the quoted passage constituted a substantial portion (13%) of the infringing article and was the most significant part of it. 105 S.Ct. at 2233–34.
