Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/62

46 Today, the fact that a work is out-of-print may work for, or against, fair use. That a work is out-of-print may work in favor of the copyright owner because royalties from copying are the only source of income from the work. In other situations, however, the fact that a work is out-of-print may actually work in favor of the user, particularly if the copyright owner has not set up a handy mechanism to collect royalties. Of course, if a work is available through print-on-demand, it is not out-of-print.

The third fair use factor considers the amount of the copyrighted work that was copied, performed, or otherwise used. As a general matter, the more that is copied, the less likely this factor will favor the user. But you must look beyond quantity. Courts may conclude that this factor favors the copyright owner even when a very small portion of a copyrighted work is used—less than 1%, in some cases—if what is used constitutes the heart of the work.

In Harper & Row v. Nation Enterprises, The Nation magazine scooped an article on the memoirs of President Gerald Ford that was to appear in Time magazine. Harper & Row, which was to publish a book on the Ford memoirs, negotiated a prepublication agreement with Time in which the magazine would excerpt 7,500 words from the book dealing with Ford’s account of his pardon of former President Nixon. Before the Time article appeared in print, someone provided The Nation with a copy of the