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$\Pr {[{\mathcal {T}}_{\mathcal {A}}(x)=t]} \over \Pr {[{\mathcal {T}}_{\mathcal {A}}(x^{\prime })=t]}$ $\sum ^{\infty }{(-1)^{n} \over {2n-1}}\Delta {}n$

Factor three addresses the amount and substantiality of the portion used in relation to the copyrighted work, not to the allegedly infringing work. ^[1] "There are no absolute rules as to how much of a copyrighted work may be copied and still be considered a fair use." ^[2] This factor has both a quantitative and a qualitative component, so that courts have found that use was not fair where the quoted material formed a substantial percentage of the copyrighted work,^[3] or where the quoted material was "essentially the heart of" the copyrighted work. ^[4]

Here, the book uses overall a small percentage of Hubbard's works. Appellant calculates that the book quotes only a minuscule amount of 25 of the 48 works that appellee claimed were infringed, 5-6% of 12 other works and 8% or more of 11 works, each of the 11 being only a few pages in length. (Appellee has accepted these figures "for purposes of discussion," although it adds that they may understate the true amount taken.) In the context of quotation from published works, where a greater amount of copying is allowed, ^[5] this is not so much as to be unfair. ^[6]

Nor is the use qualitatively unfair. Appellee asserts that "key portions" of Hubbard's works are taken "[i]n many cases." But the district court found that the quotations in the book's text — which amount to the bulk of the allegedly infringing passages — do not take essentially the heart of Hubbard's works. ^[7] And our review of the remaining 17 passages, ^[8] which are "set off by themselves at the beginning of a part or chapter" and "set the tone for the sections they precede,"^[9] persuades us that they too do not take essentially the heart of Hubbard's works.

Appellee also argues that factor three weighs in its favor because the quotations are an important ingredient of the book, pointing out that 2.7% of the book is made up of quotations from Hubbard's works. Appellee asserts that, because of the length of Hubbard's works and because so many of his writings were quoted from, it would be of little value to focus on the amount of infringing material in relation to the copyrighted works, and cites various cases^[10] in which courts discussed the amount used in relation to the infringing work, not the infringed work.

We do not agree with appellee's argument. Section 107 plainly commands us to consider "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" ^[11], and contains no exception for lengthy works or quotations from multiple works. Furthermore, to the extent that courts have looked to the infringing work, the use here is not as significant as the use alleged in those cases. In Salinger, for example, the quoted materials "[t]o a large extent ... ma[de] the book worth reading." ^[12]^[13]^[14] By contrast, the use of the quotes here is primarily a means for illustrating the alleged gap between the official version of Hubbard's life and accomplishments, and what the author contends are the true facts. For that purpose, some conjuring up of the copyrighted work is necessary. ^[15]

We find that factor three favors appellant.

D. Factor Four: Effect on the Market

Factor four of § 107 concerns the "effect of the use upon the potential market for or value of the copyrighted work." ^[16] According to the Supreme Court, this "is undoubtedly the single most important element of fair use." ^[17] In evaluating this factor, courts do not focus solely on the market for the work itself, but also on the "harm to the market for derivative works." ^[18]

^ Harper & Row, 471 U.S. at 564-65, 105 S.Ct. at 2232-33.
^ Maxtone-Graham, 803 F.2d at 1263.
^ See, e.g., Salinger, 811 F.2d at 98 (factor three favors copyright holder where one-third of 17 letters and 10% of 42 letters used)
^ Harper & Row, 471 U.S. at 565, 105 S.Ct. at 2233 (quoting the district court opinion in that case, 557 F.Supp. 1067, 1072 (D.C.N.Y.1983)).
^ See Harper & Row, 471 U.S. at 564, 105 S.Ct. at 2232.
^ Cf. Maxtone-Graham, 803 F.2d at 1263 (inclusion of 4.3% of published copyrighted work "is not incompatible with a finding of fair use"); Iowa State Univ. Research Found., Inc. v. American Broadcasting Co., 621 F.2d 57, 61-62 (2d Cir.1980) (fair use defense not available where broadcast was made containing 8% of a videotape that apparently had never been broadcast before).
^ 729 F.Supp. at 1000.
^ Id. at 996.
^ id.
^ e.g. Harper & Row, 471 U.S. at 566, 105 S.Ct. at 2233; Salinger, 811 F.2d at 98-99; Meeropol v. Nizer, 560 F.2d 1061, 1070-71 (2d Cir.1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978)
^ (emphasis added)
^ 811 F.2d at 99.
^ See also Harper & Row, 471 U.S. at 565-66, 105 S.Ct. at 2233-34 (quotes constituted 13% of the infringing work and played a "key role" in it)
^ Meeropol, 560 F.2d at 1070-71 (quoted material figured prominently in the promotional work for the book).
^ Cf. Cliffs Notes, Inc. v. Bantam Doubleday Dell Publishing Group, Inc., 886 F.2d 490, 497 (2d Cir.1989) (trademark case; parody "must to some extent resemble the original").
^ Harper & Row, 471 U.S. at 566, 105 S.Ct. at 2233 (footnote omitted).
^ Id.
^ Id. at 568, 105 S.Ct. at 2234.

[1] Harper & Row, 471 U.S. at 564-65, 105 S.Ct. at 2232-33.

[2] Maxtone-Graham, 803 F.2d at 1263.

[3] See, e.g., Salinger, 811 F.2d at 98 (factor three favors copyright holder where one-third of 17 letters and 10% of 42 letters used)

[4] Harper & Row, 471 U.S. at 565, 105 S.Ct. at 2233 (quoting the district court opinion in that case, 557 F.Supp. 1067, 1072 (D.C.N.Y.1983)).

[5] See Harper & Row, 471 U.S. at 564, 105 S.Ct. at 2232.

[6] Cf. Maxtone-Graham, 803 F.2d at 1263 (inclusion of 4.3% of published copyrighted work "is not incompatible with a finding of fair use"); Iowa State Univ. Research Found., Inc. v. American Broadcasting Co., 621 F.2d 57, 61-62 (2d Cir.1980) (fair use defense not available where broadcast was made containing 8% of a videotape that apparently had never been broadcast before).

[7] 729 F.Supp. at 1000.

[8] Id. at 996.

[9] .

[10] .g. Harper & Row, 471 U.S. at 566, 105 S.Ct. at 2233; Salinger, 811 F.2d at 98-99; Meeropol v. Nizer, 560 F.2d 1061, 1070-71 (2d Cir.1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978)

[11] (emphasis added)

[12] 811 F.2d at 99.

[13] See also Harper & Row, 471 U.S. at 565-66, 105 S.Ct. at 2233-34 (quotes constituted 13% of the infringing work and played a "key role" in it)

[14] Meeropol, 560 F.2d at 1070-71 (quoted material figured prominently in the promotional work for the book).

[15] Cf. Cliffs Notes, Inc. v. Bantam Doubleday Dell Publishing Group, Inc., 886 F.2d 490, 497 (2d Cir.1989) (trademark case; parody "must to some extent resemble the original").

[16] Harper & Row, 471 U.S. at 566, 105 S.Ct. at 2233 (footnote omitted).

[17] Id.

[18] Id. at 568, 105 S.Ct. at 2234.

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