Harper & Row v. Nation Enterprises

Citation: Harper & Row, Publishers v. Nation Enters., 471 U.S. 439 (1985).

Factual Background
The Nation magazine clandestinely obtained the unpublished memoirs of former President Gerald Ford just before Time Magazine had scheduled a story about the book. The Nation quickly published an article focusing on Ford’s revelations about his pardon of Richard Nixon. Time canceled its story and did not pay the memoir publisher, Harper & Row, $12,500 due under the exclusive license. The Nation did not dispute that its verbatim copying of Ford’s “original language totaling between 300-400 words and constituting some 13% of The Nation article” “would constitute infringement unless excused for fair use.”

The Supreme Court first found that “the unpublished nature of a work is a key, though not necessarily determinative, factor tending to negate a defense of fair use,” and that “[u]nder ordinary circumstances, the author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use.” The Court also refused to expand either the first amendment protections inherent in the idea-expression dichotomy, or the fair-use doctrine, to include “a public figure exception to copyright.”

Finally, the Court turned to the four fair use factors and resolved every factor against The Nation:


 * 1. Purpose and character of use &mdash; Although The Nation’s use of Ford’s work was news, it also was for profit, was intended to supplant other news stories, and was based on knowing exploitation of a purloined work.


 * 2. Nature of the work &mdash; The memoir was essentially facts and “the law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy,” but Ford’s work was also unpublished and this was “key.”


 * 3. The amount and substantiality of the use &mdash; The district court held that The Nation took what was essentially “the heart of Ford’s book.”


 * 4. Effect on the market &mdash; “[T]he single most important element of fair use,” also goes against The Nation, particularly because of damages (actual and potential) to serialization rights.