In the Loew's case, the competitive element was broadly construed. Judge Carter held that the plaintiff need not establish that the defendant's work reduced the demand for the plaintiff's; yet his emphasis on the commercial nature of the defendant's work has already been noted. In this connection Judge Carter had concluded that "the taking was for commercial gain for use in a competing entertainment field." 96

A curious commentary on the importance of competition is reflected by Henry Holt & Co., v. Liggett & Myers Tobacco Co., where an extract from the plaintiff's scientific work was used in defendant's advertisement; such use was held to be an infringement. The dissimilarity between the nature of the plaintiff's work and defendant's use appears to have been a crucial consideration.97 Presumably, had the defendant used plaintiff's work in a competing scientific work, fair use might have been established. It thus appears in the field of scholarly works, the effect of "competition" is mitigated. Scholarly works in any particular field may in a sense compete with one another; but this does not prevent such use of earlier materials as is sanctioned by traditions of research and dictated by the strong policy in favor of encouraging a steady flow of such works.

The importance to the copyright owner of a use made without his express consent also depends on the extent of the material taken and its value, considered in connection with either the copyrighted work or the user's work. Thus, where the material taken constitutes a large part of the plaintiff's work, the use is unreasonable.99 Of course, in determining the amount of material taken, there is presumably a distinction between the minimal amount which under no circumstances could constitute infringement and the slightly larger quantity which, in conjunction with other factors, amounts to fair use.100 This distinction is not always clear in the case law.

The significance of material is determined by many factors. In the Shapiro, Bernstein case, the court upheld as fair use the reproduction of "some more or less disconnected 'snatches' or quotations from the words of the song." There were apparently three reasons why such material was not considered significant. (1) The amount was small; 101 (2) the quotations were disconnected; and (3) the material consisted of only words and not the music. More recently, qualitative analysis was made of the defendant's use in a 20-second commercial of a melodic obligato from plaintiff's song. The court held that copying of "that portion of plaintiff's song upon which its popular appeal, and hence, its commercial success depended ***" was not shielded by the doctrine of fair use. 102

Inquiry into the importance of the material to the defendant's work was made in the Henry Holt case discussed above. The material there copied constituted only three sentences from an extensive treatise by the plaintiff, but represented about one-twentieth of the

6131 F. Supp. 182-83. See College Entrance Book Co. v. Amsco Book Co., 119 F. 2d 874, 876 (2d Cir. 1941) wherein the Court of Appeals, in reversing the district court, emphasized that both works "met exactly the same demand on the same market."

97 Cf. Sampson & Murdock Co. v. Seaver-Radford Co., 140 Fed. 539 (1st Cir. 1905).

99 In Folsom v. Marsh, 9 Fed. Cas. 342, 348, No. 4901, Justice Story emphasized the importance of the "value" of an extract rather than its "quantity."

Leon v. Pac. Tel. & Tel. Co., 91 F. 2d 484 (9th Cir. 1938). Cf. Benny v. Loew's, 239 F. 2d 532 (9th Cir. 1956), cert. granted, 353 U.S. 946 (1957).

100 See p. 30, infra.

101 Cf. Associated Music Publishers, Inc. v. Dobs Memorial Radio Fund, Inc., 141 F. 2d 852 (2d Cir. 1944).

102 Robertson v. Batten, Barton, Durstine & Osborn, Inc., 146 F. Supp. 795 (8.D. Cal. 1956).

defendant's advertising pamphlet. The court found that the matter copied was sufficiently substantial to overcome the threshold argument against a finding of infringement. Presumably, this consideration influenced the court in finding that fair use had not been established.

It might seem that the appropriation of a large amount of material would constitute an unreasonable use, notwithstanding the nature of the material or other circumstances. This view was strongly expressed in Leon v. Pacific Telephone & Telegraph Co.,103 where defendant rearranged the order of listings in plaintiff's telephone directory from alphabetical arrangement of names of subscribers to consecutive listings of telephone numbers. The court stated:

Counsel have not disclosed a single authority, nor have we been able to find one, which lends any support to the proposition that wholesale copying and publication of copyrighted material can ever be fair use.

This dictum was relied upon heavily by the court of appeals in the Loew's case.'

104

Had the reported progress of New York Tribune, Inc. v. Otis & Co., gone further, it might have furnished the "authority" not available at the time of the Leon case. The defendant there had photostated an entire editorial. The court, in denying the defendant's motions to dismiss and for summary judgment, apparently considered the issue of fair use an open one to be determined by "consideration of all the evidence in the case." Inasmuch as the court was not considering a motion on the plaintiff's behalf, its failure to rule out the possibility of a fair use defense may not contradict the Leon dictum. Yet, some question as to the sweep of the dictum may be raised by Broadway Music Corp. v. F-R Pub. Corp.,105 wherein words from the plaintiff's copyrighted song constituted about half of the lines in the defendant's magazine article.

108

The state of mind of the user, ordinarily immaterial to the determination of infringement,106 has been considered relevant to the question of fair use. 107 It was stated in the early case of Lawrence v. Dana," that "evidence of innocent intention may have a bearing upon the question of 'fair use'." "Innocent intention" in this context has been roughly equated with "good faith." 109 The court in the Broadway Music case found the absence of an "intent to commit an infringement" to "go to fill out the whole picture."

In the New York Tribune case, the intent of the defendant to use the plaintiff's editorial in a noncommercial manner apparently would have been a significant factor. But this suggests that the purpose of a work or the intention to compete may be more crucial than the overall intention of a defendant to infringe or not to infringe. Similarly, the acknowledgment of source would merely reveal an intent to refrain from plagiarism-using another's material as one's ownrather than an intent to keep the use within reasonable bounds.

Acknowledgment itself presents an interesting situation. It is ordinarily assumed that credit to the source is a factor which reflects

191 F.2d 484, 486 (9th Cir. 1938).

See note 40, supra. Cf. Sayers v. Spaeth, Copyright Office Bulletin, No. 20 at 625 (S.D.N.Y. 1932) 31 F. Supp. 817 (S.D.N.Y. 1940).

See Buck v. Jewell-La Salle Realty Co., 283 U.S. 191, 198 (1931).

See Peck, Copyright Infringement of Literary Works, 38 MARQ, L. REV. 180, 187 (1955). 115 Fed. Cas. 26, 60 Case No. 8, 136, (C.C.D. Mass. 1869)

10% Cohen, op. cit., note 7 supra, at 60,

favorably upon the user as it helps "to fill out the whole picture." 110 Nevertheless, acknowledgment can have contrary implications. Thus, one court said of crediting the author:

Far from there being any exculpatory virtue in this, it would tend rather to convey to the reading public the false impression that authority to appropriate the extracts from the copyrighted article had been duly secured by the offending publisher.111

In any event, it is clear that acknowledgment, in itself, is not sufficient to insure fair use and preclude infringement.112

III. PROPOSALS FOR LEGISLATIVE REVISIONS SINCE 1909

The omission of any mention of fair use in the 1909 act was not inadvertent. At the hearings leading to the act, the Librarian of Congress indicated that the question, "What is fair use?" was not answered by the bill which "leaves to the courts to determine the meaning and extent of terms already construed by the courts." 113 Similarly, the Senate Committee on Patents reported in 1907 that the bill

is not, however, an attempt to codify the common law. Questions such as that of what is a "fair use" of copyrighted matter, and what is an "infringement," it leaves still to the courts.114

This approach was recently suggested by the representative of the book publishers who felt that the judicial doctrine of fair use was preferable to a "for profit" limitation on the performing right of nondramatic literary works. 115 However, the statutory silence of the 1909 act was not followed in most of the major reform bills since 1909. Rather, there was proposed a wide variety of fair use provisions ranging from a single short sentence in the Sirovich bills to the extensive provisions of the Dallinger and Shotwell bills.

A. DALLINGER BILLS, 1924

The first Dallinger bill 116 proposed immunity for fair use and related situations, section 27 providing for six exemptions from infringement. Most of these were patterned after the British Copyright Act of 1911.117 (1) The bill broadly exempted "any fair use of any work for the purpose of study, research, criticism, or review." (2) The author of an artistic work retained the right to use models, sketches, etc., even where he did not own the copyright in the work; but such limited right did not authorize him to "repeat or imitate the main design or scope of that work." (3) Permanently exhibited works of art could be freely copied, and sketches or drawings of works of architecture could be made as long as they were not in the nature of architectural plans or drawings. (4) Short passages from published literary works might be included in a collection mainly of noncopyrighted material intended for school use. The educational purpose was to be indicated

110 See Warren v. White & Wyckoff Mfg. Co., 39 F. 2d 922, 923 (S.D.N.Y. 1930).

111 Chicago Record-Herald Co. v. Tribune Ass'n., 275 Fed. 797, 799 (7th Cir. 1921).

112 See Henry Holt & Co. v. Liggett & Myers Tobacco Co., 23 F. Supp. 302 (E.D. Pa. 1938); Sayers v Spaeth, Copyright Office Bulletin, No. 20 at 625 (S.D.N.Y. 1932).

118 Hearings Before Committee on Patents on S. 6330 and H.R. 19853, 59th Cong., 1st Sess., at 15 (June 1906). 114 S. REP. NO. 6187, 59th Cong., 2d Sess (1907).

115 Hearings Before Subcommittee No. 3 of the House Committee on the Judiciary on H.R. 3589, 82d Cong., 1st Sess., 36-37 (1951).

116 H.R. 8177, 68th Cong., 1st Sess. (1924).

117 1 & 2 GEO. 5 c. 46 §2 (1911).

and the source acknowledged. This provision was inapplicable to passages from works which were themselves published for school use, and permitted the use of only two passages from the same author within a 5-year period. (5) Excluded from infringement was "The reading or recitation in public by one person of any reasonable extract of any published work." (6) A limited right to reproduce news articles, patterned upon Article 9 of the Berne Convention, was also proposed. Permitted was the

reproduction by another newspaper of any newspaper article other than serial or other stories and tales, unless the reproduction thereof is expressly forbidden, provided the source of said article is stated in connection with such reproduction, In addition, section 28 authorized a newspaper report of a public address.

These provisions seem to embody three general themes. First, scholarly and peculiarly educational use of copyrighted material was accorded special concessions. Second, reporting and borrowing among newspapers of new items was facilitated. Third, performing rights and artistic reproduction rights of copyright owners were curtailed. It will be noted, however, that the proposals failed to resolve many of the questions traditionally left to the courts in this area. Thus, subsection 1 of section 27 exempted "fair use" for scholarly or critical purposes, but no definition of "fair use" was supplied. And the educational exemption of subsection (4) was limited to "short passages." Similarly, the right to public recitation by someone other than the copyright owner was limited to a "reasonable extract” of the copyright work.

The second Dallinger bill 118 limited significantly the public reading exemption of subsection (5). This use could be made only of nondramatic works and was permitted only where the public reading or recitation was not for profit.

B. VESTAL BILLS, 1981

The Perkins bills 119 apparently contained no provisions concerning fair use. Neither did the first versions of the Vestal bills, 120 including H.R. 12549 which was passed by the House in the 71st Congress. But in the following session an amended version 121 and its companion bill in the Senate 122 took an interesting approach to the problem of fair use. They engrafted provisos directly upon the general grant of copyright in section 4, which insured that "nothing in this Act shall prevent the fair use of quotations from copyright matter." Both bills permitted such fair use only in the absence of an express prohibition by the copyright owner. And credit was required by the Senate bill where the use was by radio for profit, and by the House bill in

every case.

C. SIROVICH AND DILL BILLS, 1932

The provisions of the Sirovich bills probably modified the effect of the silence in the Perkins bills only by an absolute requirement of

11 H.R. 9137, 68th Cong., 1st Sess. (1924).

H.R. 11258 and S. 4355, 68th Cong., 2d Sess. (1925), and H.R. 5841, 69th Cong., 1st Sess. (1925). H.R. 10434, 69th Cong., 1st Sess. (1926), H.R. 8912, 70th Cong., 1st Sess. (1928), H.R. 6990, 71st Cong., 2d Sess. (1929), and H.R. 12549, 71st Cong., 2d Sess. (1930).

H.R. 139, 72d Cong., 1st Sess. (1931).

Hebert bill, S. 176, 72d Cong., 1st Sess. (1931).

acknowledgement. Thus, section 11 of the first and second Sirovich bills 123 contained the provision that:

None of the remedies given to the copyright owner by this Act shall be deemed to apply to (f) the fair use of quotations from copyright matter provided credit is given to the copyright owner.

The third Sirovich bill 124 introduced the addition of the words "or the work quoted" to the end of subsection, and this modification was retained in all the later versions 125 of the bill.

The Dill bill 126 hedged the privilege of fair use with a further condition and would seem to represent a dilution of the privilege as defined by the courts. Section 2 provided that:

Nothing in this Act shall prevent the fair use of quotations from copyright matter, unless the copyright owner by notice affixed, has expressly prohibited such quotations from the copyrighted work in whole or in part, but whenever such quotations are printed or reproduced by radio for profit, credit shall be given to the source. [Emphasis added.]

D. THE DUFFY, DALY, AND SIROVICH BILLS, 1935-37

The original Duffy bill,127 introduced in 1935, incorporated the substance of the provisions of the earlier Sirovich bills by granting immunity to "the fair use of quotations;" and a requirement of "due credit" was imposed. This provision was deleted in later versions. 128 But the Duffy bills also contained some innovations in U.S. fair-use proposals. For example, section 17g (4) of S. 3047 129 exempted from liability the performances of a copyrighted musical work for charitable, religious, or educational purposes as well as:

The merely incidental and not reasonably avoidable inclusion of a copyrighted work in a motion picture or broadcast depicting or relating current events.

The Daly bill 130 was silent as to fair use, but the Sirovich bill of 1936 131 maintained the exemption for performances for charitable purposes, as well as the brief statement as to "fair use of quotations" found in the earlier Sirovich bills. Section 26 also exempted from infringement "the publication of a photograph as an item of public or general interest in the dissemination of news."

132

Hearings were held on the Duffy, Daly, and Sirovich bills in 1936.13 The subsection of the Duffy bill quoted above came under attack by the American Society of Composers, Authors & Publishers. Its extensive brief included the following criticism of the provision:

There is no reason why exhibitors and distributors of newsreels should be permitted to make a profit from the use of copyrighted material without payment. There is nothing to prevent an unscrupulous broadcaster from broadcasting an entire show as a current event. This could be done by merely coupling the performance with a broadcast of current news events. 133

On the other hand, the National Association of Broadcasters favored the provision, arguing that the violation of the copyright

123 H.R. 10364 and H.R. 10740, 72d Cong., 1st Sess. (1932).

124 H.R. 10976, 72d Cong., 1st Sess. (1932).

125 H.R. 11948, H.R. 12094, and H.R. 12425, 72d Cong., 1st Sess. (1932).

126 S. 3985, 72d Cong., 1st Sess. (1932).

127 S. 2465, 74th Cong., 1st Sess. (1935).

125 S. 3047, H. R. 8557, 74th Cong., 1st Sess. (1935) and S. 7, H. R. 2695 and H.R. 3004, 75th Cong., 1st Sess. (1937).

129 74th Cong., 1st Sess. (1935).

130 H.R. 10632, 74th Cong., 2d Sess. (1936).

131 H.R. 11420, 74th Cong., 2d Sess. (1936).

133 Hearings Before the House Committee on Patents, 74th Cong., 2d Sess. (1936).

133 Id. at 122.