Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.
Today, we tackle the third criterion of the Fair Use doctrine: the amount and substantiality of the copyrighted material used in the new material.
The amount of the original used is pretty straightforward. If you use the entire copyrighted work, you need a license or legal permission. If you aren’t, then courts will review how much of the original copyrighted work you are using against how you’re using it and why you’re using it. For those who enjoy gaming systems, there really is no magical number here; it really does depend on how you’ve met other Fair Use criteria. I’ve seen people try to claim “points of difference” (enumerating the ways your work deviates from the original), but there’s no actual law supporting that. If you find yourself trying to argue points of difference in your work, stop. The only reason someone does that is because they know they’re in the wrong and trying to assuage their guilt. Your best options are to make right what you know is wrong, or to drop it and move along.
Substantiality is a bit more challenging, and not just because that’s a hard word to say…or type out, for that matter. What’s really being looked at here is how important or significant is the selection from the original copyrighted material. If your material is incorporating the most important or significant parts of the original, you’ve created a situation that threatens the original’s market value (which we’ll cover in the next post). If someone can see the best parts of the original in your new creation, why would they need to see the original? You’ve effectively just spoiled it for them.
The best advice I can offer here is: If your gut is telling you you’re doing it wrong, you probably are. Stop. Take a step back from your work. See if there’s another way to accomplish your goals without violating someone else’s copyright and without trying to turn yourself into a whiny victim.