Copyright Fair Use: How Much Copying is Too Much Copying?; Lexology, August 15, 2022

Goodell DeVries Leech & Dann LLP - Jim Astrachan, Lexology; Copyright Fair Use: How Much Copying is Too Much Copying?

"...no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” These words were written by Judge Learned Hand in 1936. His point was that a taking of someone else’s expression will not be excused merely because it is insubstantial in quantity when held up for comparison to the infringing work.

Years back a copyright defendant client related copyright lore as a defense to his actions. He swore up and down that copying was permissible as long as not more than 10 percent of the source work was taken. Many times that belief has been mistakenly repeated. Many of the older, bedrock, principles of copyright practice are worth repeating. Perhaps this repetition comes from being the teacher that I suspect is part of my DNA.

The “ancient” case of Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) should absolutely disabuse anyone of this silly notion." 

Madeleine Thien: ‘In China, you learn a lot from what people don’t tell you’; Guardian, 10/8/16

Claire Armitstead, Guardian; Madeleine Thien: ‘In China, you learn a lot from what people don’t tell you’ :

"Do Not Say We Have Nothing makes the surprising suggestion that part of the solution might lie in the act of copying. The different generations of Marie and Ai-Ming’s families are connected by the manuscript of a novel, “The Book of Records”, chapters of which have been carefully copied out, hidden in walls and beneath floorboards, and passed from hand to hand. “The Book of Records” is precious because it represents a narrative that doesn’t conform to the approved version of Chinese history, Thien explains. “It’s a book with no beginning, no middle and no end, in which the characters are seeing an alternative China where they recognise mirrors of themselves and which they write themselves into.”...

This latest crackdown is yet another variation on the long-running theme of suppression of the individual, making it highly unlikely that either of her mature novels will be published in mainland China, though she hopes they may yet be in Hong Kong. It doesn’t seem too far-fetched to describe them as her own Books of Records, embodying the difficult business of remaining imaginatively free while honouring “contested history”."