## Facts

- Gerald Ford contracted with Harper & Row to publish his memoir, including his account of the decision to pardon Richard Nixon; Harper & Row held the copyright and licensed “exclusive first serial rights.”
- Harper & Row licensed *Time* magazine to publish up to 7,500 words of prepublication excerpts focused on the Nixon pardon in exchange for $25,000, with $12,500 payable later.
- Before *Time* published, an unauthorized source provided *The Nation* magazine an unpublished manuscript of the memoir.
- A *Nation* editor wrote a 2,250-word article summarizing the memoir and quoting roughly 300–400 words verbatim from the manuscript, timed to precede *Time*’s planned publication.
- After the article appeared, *Time* canceled and withheld the remaining $12,500.
- Harper & Row sued for copyright infringement; *The Nation* asserted fair use, citing news reporting, public interest in the subject, and First Amendment concerns.

## Issues

1. Whether a magazine’s unauthorized prepublication use of verbatim excerpts from an unpublished manuscript to obtain a competitive “scoop” is fair use under 17 U.S.C. § 107.
2. Whether newsworthiness and First Amendment interests justify expanded fair use permitting appropriation of copyrighted expression from an unpublished work.

## Decision

- The Supreme Court reversed the court of appeals and held the use was not fair use and therefore infringed copyright.
- Applying § 107’s four factors, the Court found:
  - The use was commercial and intended to supplant a contracted first-serialization opportunity, weighing against fair use.
  - The work’s unpublished status weighed heavily against fair use because copyright includes an author’s right to control first publication.
  - Although the quantity copied was small, the copied passages were qualitatively substantial because they captured the “heart” of the memoir’s most valuable narrative.
  - The publication caused actual market harm and threatened the market for first-serialization rights, which the Court treated as the most important factor.
- The Court rejected a “public figure” or “newsworthiness” exception to copyright and concluded the First Amendment is accommodated through the idea/expression distinction and the fair use doctrine.

## Legal Principles

- Fair use is a case-specific inquiry under § 107; labeling a use as “news reporting” does not create immunity from infringement.
- The unpublished nature of a work is a significant consideration that generally weighs strongly against fair use, because the copyright owner has a right to control the first public appearance of the expression.
- Amount-and-substantiality analysis turns on qualitative value as well as word count; copying the “heart” of a work can be substantial even if brief.
- Harm to the actual or potential market for the copyrighted work, including derivative licensing markets such as first-serialization rights, strongly weighs against fair use and may be shown by direct competition and concrete lost revenue.
- First Amendment interests do not create a categorical privilege to copy protected expression where the underlying facts and ideas can be conveyed without verbatim appropriation.

## Conclusion

The Court held that prepublication, commercially motivated copying of key passages from an unpublished memoir to obtain a competitive advantage is not fair use, particularly where it usurps the right of first publication and causes market harm to established licensing markets.


Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985)