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 bucket of infringing passages mentioned above. The ruling on this motion is therefore made without reference to them.

Fair Use

In seeking to justify his takings from the Craft-Stravinsky Writings, Kobler argues that he has made “fair use” of the protected material. Fair use is a judicially created doctrine which is expressly recognized in Section 107 of the Copyright Act of 1976. 17 U.S.C. § 107 (1982); see generally W. Patry, The Fair Use Privilege in Copyright Law (1985). According to this statute, "[n]otwithstanding [the exclusive rights of the copyright owner specified in] the provisions of section 106, the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching … scholarship, or research, is not an infringement of copyright."

The statute goes on to instruct that “the factors to be considered” in determining whether fair use is applicable "“shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.”"

17 U.S.C. § 107 (1982); see also Nation Enterprises, 105 S.Ct. at 2231.

The first statutory factor directs attention to the “purpose and character of the use.” This factor calls for examination of how the particular taking of protected material serves the instructive goals that the fair use doctrine seeks to promote.

Three cited passages are excellent examples of takings that carry a particularly strong claim of fair use:

In No. 203, Kobler discusses whether it was in fact Craft who wrote much of the late writings of Stravinsky. Kobler observes that there were huge differences in the way Craft and Stravinsky expressed themselves. He then quotes a 45-word sentence attributed to Stravinsky in Dialogues, a Stravinsky-Craft conversation book. Kobler suggests the sentence is in the style of Craft’s diction and altogether unlike Stravinsky’s. He reinforces the speculation of Craft’s authorship of Stravinsky’s books by reference to a memoir by Stravinsky’s secretary who tells that the Stravinsky book materials she typed were handed to her by Craft and revised by Craft and that, so far as she was aware, Stravinsky never saw them. Kobler relates the question of authorship to the deeply complex relationship between Stravinsky and Craft and the importance of that relationship to Stravinsky. To my mind, there can be little doubt that the verbatim quotation of a 45-word sentence lifted out of context from a full-length book for these purposes is entitled, absent powerful countervailing factors, to be considered fair use. Since the point depends on a perception of the style of writing and manner of expression, it could not be made effectively without direct quotation.

A similar conclusion applies to item No. 204. Now exploring a different facet of the Stravinsky-Craft relationship, Kobler argues that at times Craft took as his own words that originated in Stravinsky. He cites an original Craft diary entry attributing to Stravinsky the observation that peacocks on a lawn in Cuernavaca looked like “Ziegfield girls.” Kobler then quotes a phrase from a Craft book in which he refers to those “peacocks strutting like Ziegfield girls.”

In both instances, it is important for Kobler to quote the copyrighted material to support the instructive historical purpose on which his fair use claim is grounded. Furthermore, the amount taken for these illustrative purposes is modest and reasonable; the loss to the copyright owner of the benefit of protection is minimal. The claim of fair use would, of course, be abused by quoting an entire chapter to support the argument that the writing style suggested Craft’s and not Stravinsky’s authorship.