## Facts

- Eloise Toby Marcus, a public school teacher, authored and registered a copyright in a cake-decorating booklet, “Cake Decorating Made Easy.”
- The booklet was about 35 pages, largely original instructional material, and was sold primarily to Marcus’s adult-education students for $2.00 per copy; Marcus did not authorize copying.
- Shirley Rowley, also a teacher in the same school district, bought Marcus’s booklet after enrolling in Marcus’s class.
- Rowley later prepared a “Cake Decorating Learning Activity Package” (LAP) for use in her own classes and had about 15 copies made, without direct profit.
- Rowley’s LAP was 24 pages; 11 pages were copied verbatim from Marcus’s booklet without credit, comprising almost half of the LAP and most of its substantive content.
- Marcus learned of the LAP when a student declined to buy Marcus’s booklet because the student already had the LAP.

## Issues

1. Whether copying substantial portions of a copyrighted instructional booklet for classroom teaching, without authorization and for the same instructional purpose, qualifies as fair use under 17 U.S.C. § 107.

## Decision

- The Ninth Circuit reversed the judgment dismissing the action on the merits.
- The court held Rowley’s copying did not constitute fair use.
- The case was remanded for further proceedings consistent with rejection of the fair use defense.

## Legal Principles

- Fair use is evaluated under the four statutory factors in 17 U.S.C. § 107; no single factor is determinative.
- Nonprofit educational purpose favors fair use but does not control the analysis.
- Copying for the same intrinsic instructional purpose as the copyright owner, rather than adding a different use or function, weighs against fair use.
- Extensive verbatim copying of a large and substantively central portion of the original work weighs strongly against fair use.
- A lack of proven market harm does not require a fair use finding where the other factors strongly weigh against the defendant.

## Conclusion

The court ruled that a teacher’s nonprofit classroom distribution of a course packet containing extensive verbatim copying from another teacher’s copyrighted instructional booklet was not fair use, particularly where the copied material formed the core substance of the defendant’s work and served the same teaching purpose as the original.


Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983)