Harper & Row v. Nation Enterprises
471 U.S. 539 (1985)

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U.S. Supreme Court

Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985)

Harper & Row, Publishers, Inc. v. Nation Enterprises

No. 83-1632

Argued November 6, 1984

Decided May 20, 1985

471 U.S. 539


In 1977, former President Ford contracted with petitioners to publish his as yet unwritten memoirs. The agreement gave petitioners the exclusive first serial right to license prepublication excerpts. Two years later, as the memoirs were nearing completion, petitioners, as the copyright holders, negotiated a prepublication licensing agreement with Time Magazine under which Time agreed to pay $25,000 ($12,500 in advance and the balance at publication) in exchange for the right to excerpt 7,500 words from Mr. Ford's account of his pardon of former President Nixon. Shortly before the Time article's scheduled release, an unauthorized source provided The Nation Magazine with the unpublished Ford manuscript. Working directly from this manuscript, an editor of The Nation produced a 2,250-word article, at least 300 to 400 words of which consisted of verbatim quotes of copyrighted expression taken from the manuscript. It was timed to "scoop" the Time article. As a result of the publication of The Nation's article, Time canceled its article and refused to pay the remaining $12,500 to petitioners. Petitioners then brought suit in Federal District Court against respondent publishers of The Nation, alleging, inter alia, violations of the Copyright Act (Act). The District Court held that the Ford memoirs were protected by copyright at the time of The Nation publication, and that respondents' use of the copyrighted material constituted an infringement under the Act, and the court awarded actual damages of $12,500. The Court of Appeals reversed, holding that The Nation's publication of the 300 to 400 words it identified as copyrightable expression was sanctioned as a "fair use" of the copyrighted material under § 107 of the Act. Section 107 provides that, notwithstanding the provisions of § 106 giving a copyright owner the exclusive right to reproduce the copyrighted work and to prepare derivative works based on the copyrighted work, the fair use of a copyrighted work for purposes such as comment and news reporting is not an infringement of copyright. Section 107 further provides that, in determining whether the use was fair, the factors to be considered shall include: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the

Page 471 U. S. 540

copyrighted work as a whole; and (4) the effect on the potential market for or value of the copyrighted work.

Held: The Nation's article was not a "fair use" sanctioned by § 107. Pp. 471 U. S. 542-569.

(a) In using generous verbatim excerpts of Mr. Ford's unpublished expression to lend authenticity to its account of the forthcoming memoirs, The Nation effectively arrogated to itself the right of first publication, an important marketable subsidiary right. Pp. 471 U. S. 545-549.

(b) Though the right of first publication, like other rights enumerated in § 106, is expressly made subject to the fair use provisions of 107, fair use analysis must always be tailored to the individual case. The nature of the interest at stake is highly relevant to whether a given use is fair. The unpublished nature of a work is a key, though not necessarily determinative, factor tending to negate a defense of fair use. And under ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use. Pp. 471 U. S. 549-555.

(c) In view of the First Amendment's protections embodied in the Act's distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, there is no warrant for expanding, as respondents contend should be done, the fair use doctrine to what amounts to a public figure exception to copyright. Whether verbatim copying from a public figure's manuscript in a given case is or is not fair must be judged according to the traditional equities of fair use. Pp. 471 U. S. 555-560.

(d) Taking into account the four factors enumerated in § 107 as especially relevant in determining fair use leads to the conclusion that the use in question here was not fair. (i) The fact that news reporting was the general purpose of The Nation's use is simply one factor. While The Nation had every right to be the first to publish the information, it went beyond simply reporting uncopyrightable information and actively sought to exploit the headline value of its infringement, making a "news event" out of its unauthorized first publication. The fact that the publication was commercial, as opposed to nonprofit, is a separate factor tending to weigh against a finding of fair use. Fair use presupposes good faith. The Nation's unauthorized use of the undisseminated manuscript had not merely the incidental effect, but the intended purpose, of supplanting the copyright holders' commercially valuable right of first publication. (ii) While there may be a greater need to disseminate works of fact than works of fiction, The Nation's taking of copyrighted expression exceeded that necessary to disseminate the facts, and infringed the copyright holders' interests in confidentiality and creative control over the first public appearance of the work. (iii) Although the verbatim quotes

Page 471 U. S. 541

in question were an insubstantial portion of the Ford manuscript, they qualitatively embodied Mr. Ford's distinctive expression, and played a key role in the infringing article. (iv) As to the effect of The Nation's article on the market for the copyrighted work, Time's cancellation of its projected article and its refusal to pay $12,500 were the direct effect of the infringing publication. Once a copyright holder establishes a causal connection between the infringement and loss of revenue, the burden shifts to the infringer to show that the damage would have occurred had there been no taking of copyrighted expression. Petitioners established a prima facie case of actual damage that respondents failed to rebut. More important, to negate a claim of fair use, it need only be shown that, if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work. Here, The Nation's liberal use of verbatim excerpts posed substantial potential for damage to the marketability of first serialization rights in the copyrighted work. Pp. 471 U. S. 560-569.

723 F.2d 195, reversed and remanded.

O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which WHITE and MARSHALL, JJ., joined, post, p. 471 U. S. 579.

Primary Holding
A copyright holder has the statutory right to control the first public distribution of an authorized version of the protected material.
Harper & Row signed a contract with President Gerald R. Ford for the right to publish his memoirs. It licensed pre-publication rights to Time Magazine to publish a portion of the memoirs for $25,000, of which half would be paid before the article was published and half afterward. However, a writer at The Nation magazine managed to obtain a copy of the memoir's manuscript without Ford's permission or authorization. He published a 2,250-word article in The Nation that contained verbatim quotes from the manuscript.

As a result, Time Magazine canceled its article and refused to pay the second half of the licensing fee to Harper & Row. The publisher then brought a copyright infringement claim against The Nation. While Harper & Row prevailed in federal district court, the ruling was reversed on appeal based on the fair use exception to copyright infringement under Section 107 of the Copyright Act.



  • Sandra Day O'Connor
  • Warren Earl Burger
  • Harry Andrew Blackmun
  • Lewis Franklin Powell, Jr.
  • William Hubbs Rehnquist
  • John Paul Stevens

While it was appropriate to consider the applicability of fair use here, O'Connor ultimately found that applying the exception was not justified. She analyzed each of the four factors that courts consider in determining whether fair use applies, which are:

1) The purpose and character of the use;
2) The nature of the copyrighted work;
3) The amount that was taken in proportion to the work as a whole; and
4) The market effect for the copyrighted work.

Emphasizing that each fair use analysis is highly fact-specific, O'Connor pointed out that the unpublished nature of the memoirs made establishing a fair use defense difficult because Section 106 of the Copyright Act allows authors to control the first public distribution of an authorized version of their works. She also observed that The Nation is a for-profit news magazine using the material for commercial gain without paying licensing fees. The Nation used extended passages from the memoirs rather than just mere words, and these passages were taken from some of the most important portions of the book. Regarding the effect on the market, O'Connor felt that Time's refusal to run the article and pay the second half of the license fee showed that such an effect existed. All of the factors thus weighed against allowing a fair use defense in this instance.


  • William Joseph Brennan, Jr. (Author)
  • Byron Raymond White
  • Thurgood Marshall

Case Commentary

Although the work was factual, which usually favors applying fair use, unpublished works and those that are obtained illicitly likely do not fall under the protection of this doctrine. The right of first publication does not alway apply in these situations.

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