Editing Fair use (section)

=== 3. Amount and substantiality ===
[[File:GoogleImageSearch.png|thumb|alt=Screenshot of Google Image Search results page|The Ninth Circuit has held that the use of thumbnails in image search engines is fair use.]]
The third factor assesses the amount and substantiality of the copyrighted work that has been used. In general, the less that is used in relation to the whole, the more likely the use will be considered fair.

Using most or all of a work does not bar a finding of fair use. It simply makes the third factor less favorable to the defendant. For instance, in ''Sony Corp. of America v. Universal City Studios, Inc.'' copying entire television programs for private viewing was upheld as fair use, at least when the copying is done for the purposes of [[time-shifting]]. In ''Kelly v. Arriba Soft Corporation'', the [[United States Court of Appeals for the Ninth Circuit|Ninth Circuit]] held that copying an entire photo to use as a [[thumbnail]] in online search results did not even weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use".

However, even the use of a small percentage of a work can make the third factor unfavorable to the defendant, because the "substantiality" of the portion used is considered in addition to the amount used. For instance, in ''[[Harper & Row v. Nation Enterprises]]'',<ref name=Harper&Row>{{Ussc|name=Harper & Row v. Nation Enterprises|471|539|1985}}</ref> the U.S. Supreme Court held that a news article's quotation of fewer than 400 words from [[Gerald Ford|President Ford]]'s 200,000-word memoir was sufficient to make the third fair use factor weigh against the defendants, because the portion taken was the "heart of the work". This use was ultimately found not to be fair.<ref name=Harper&Row />