HARPER & ROW v. NATION ENTERPRISES

Legal Principle at Issue

Whether The Nation's unauthorized excerpts from former President Gerald Ford’s unpublished memoirs constituted "fair use" under the Copyright Act of 1976, or if it infringed upon the copyright holder’s right of first publication.

Action

Reversed and remanded. Petitioning party received a favorable disposition.

Facts/Syllabus

In 1977, former President Gerald Ford contracted with Harper & Row to publish his as yet unwritten memoirs. The agreement gave the publishing house  exclusive first serial right to license pre-publication excerpts. Two years later, as the memoir was nearing completion, Harper & Row, as the copyright holders, negotiated a prepublication licensing agreement with Time Magazine, under which Time agreed to pay $25,000 in exchange for the right to excerpt 7,500 words on his pardon of former President Richard Nixon. Shortly before the Time article was release, an unauthorized source provided The Nation with the unpublished manuscript, and the magazine printed a 2,250-word article timed to "scoop" the Time article. As a result, Time canceled its article and refused to pay the remaining $12,500 to Harper & Row. 

Petitioners Harper & Row sued in federal District Court against respondent publishers of The Nation, alleging violations of the Copyright 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. The District Court awarded actual damages of $12,500. The U.S. Court of Appeals for the Second Circuit reversed, holding that The Nation's publication of excerpts it identified as copyrightable expression was sanctioned as a "fair use" of the copyrighted material under Section 107 of the Copyright Act. In a divided decision, the majority recognized that Ford's verbatim "reflections" were original "expression" protected by copyright; however, the Second Circuit held that the lower court had erred in assuming the "coupling [of these reflections] with uncopyrightable fact transformed that information into a copyrighted totality.'" The majority noted that copyright attaches to expression, not facts or ideas, and concluded that, to avoid granting a copyright monopoly over the facts underlying history and news, "expression [in such works must be confined] to its barest elements -- the ordering and choice of the words themselves."