ECW published a book solely about Shania Twain. The writer (the second
defendant, Holmes) included 16 passages from Honour Song without
authorization. The plaintiff sued the defendants for copyright infringement,
claiming that “a substantial part” of her book had been reproduced. The Court
agreed with her.]JUSTICE REED:What will constitute a substantial taking must be assessed from both a quantitative and
qualitative perspective. ... [A number of factors] have been considered by the courts when
assessing whether there has been a substantial taking:(a) the quality and quantity of the material taken;(b) the extent to which the defendant’s use adversely affects the plaintiff ’s activities
and diminishes the value of the plaintiff ’s copyright;(c) whether the material taken is the proper subject-matter of a copyright;(d) whether the defendant intentionally appropriated the plaintiff ’s work to save time
and effort; and(e) whether the material taken is used in the same or a similar fashion as the
plaintiff ’s.Approximately one-third of Barbara Hager’s chapter on Shania Twain found its way into the
ECW book. Other than the direct quotes of Shania Twain’s words, it was not often verbatim
copying, but rather the rearranging of sentences, with additional material interspersed, while
following the same concepts, thought patterns and sometimes sentence structure. Ms. Hager’s
reaction on reading the ECW book was that it appeared as though someone had scanned her
work onto the computer and then switched the words and sentences around a bit...[I]n terms of quantity, a substantial amount of her work was taken. In addition, the parts of her
book that are most valuable to her were taken: the direct quotes from Shania Twain. I conclude
that qualitatively a very valuable and significant part of her work was taken.I turn now to consider some of the other factors that ... are relevant.The plaintiff ’s evidence was that she has been adversely affected by the defendant’s copying of
her work because she was forced to change the focus of a longer work she was writing on Shania
Twain, and rewrite that book. At the same time, the book that she completed has apparently been
very well received by the publisher and there are plans to incorporate the whole text of the in-
person interview with Shania Twain into it as an appendix. Her work Honour Songdoes not
directly compete with the ECW book. ... In so far as the motivation and effect of the taking are
concerned, there is no doubt that Mr. Holmes copied Barbara Hager’s work for the purpose of
saving himself expense and labour and that the taking was intentional. Also, I have no doubt that
the effect of authorizing the copying of large portions of an individual’s work in the fashion that
occurred in this case would decrease an author’s incentive to create.The determination of whether a substantial part of a work has been taken is a question of fact...
In the context of this case, I consider the main factors that lead to a conclusion that a substantial(^130) part of the work was taken are the quantity of the material taken and the quality of that material