*1 HARPER & ROW, PUBLISHERS, INC., al. v. et
NATION ENTERPRISES et al. No. Argued 83-1632. May 20, November 1984 Decided *3 O’Connor, J., opinion Court, the Burger, delivered in which J., Powell, Blackmun, Rehnquist, Stevens, JJ., C. and joined. and Brennan, J., dissenting opinion, Marshall, filed a in which White and JJ., joined, post, p. 579.
Edward, A. Miller the cause for argued petitioners. With him on the briefs were Barbara and David Otis Hufham Fuller, Jr.
Floyd Abrams the cause argued respondents. for With Chatillon, Rinzler, brief were Devereux E. Carol him on the * Deutsch, L. Andrew and Leon Friedman. Justice delivered O’Connor the Court. opinion This us to case consider to what “fair requires extent (here- provision use” Act Copyright Revision of 1976 urging *Briefs of amici curiae reversal were filed for the Association Inc., Lieb; Publishers, by Baumgarten American Jon A. and Charles H. Lawyers Arts, Inc., by Koenigsberg. Volunteer for the I. Fred urging Briefs of amici curiae filed for affirmance were the Pen American Gillers; by Co., Inc., Stephen Center and for et Gannett al. Melville Nimmer, Heineman, Jr., Benjamin Lucan, B. W. Alice and Robert Neff Lobdell. C. Act), Copyright 107, sanctions 17 U. S. C. inafter the unpub- public figure’s quotations from a use of unauthorized manuscript. source an undisclosed In March lished unpublished Magazine manu- provided with Autobiography The Nation R. of Gerald script “A Time to Heal: manuscript, directly purloined Working an from the Ford.” piece produced “The entitled a short The Nation editor of piece was Pardon.” The the Nixon Ford Memoirs—Behind shortly appear in “scoop” to an article scheduled timed agreed purchase Magazine. the exclusive had Time Time excerpts prepublication right print from the (hereinafter Harper Harper Publishers, Inc. & Row holders, (hereinafter Row), Digest Inc. Association, Reader’s & Digest). Time article, The Nation As a result of Reader’s brought agreement. a successful Petitioners its canceled appeal, against On Second The Nation. action infringement, finding of court’s the lower reversed Circuit holding as a “fair use” of sanctioned The Nation’s act was granted copyrighted 467 U. S. certiorari, material. We (1984), reverse. and we now
HH shortly leaving February House, after White petitioners R. Ford contracted President Gerald former yet Digest, publish Harper his as un Row and Reader’s & “significant to contain The memoirs were memoirs. written *4 Watergate concerning unpublished the material” hitherto pardon Nixon and “Mr. of former President Ford’s crisis, Mr. morality history, period and the on this Ford’s reflections App. personalities for Cert. C-14— to Pet. involved.” and publish right memoirs to the Ford to the addition C-15. gave petitioners agreement the exclusive the form, in book excerpts, prepublication in right known the trade to license years rights.” as the memoirs later, Two “first serial as negotiated prepubli- petitioners nearing completion, a were weekly maga licensing agreement a news Time, cation pay agreed in advance and an $12,500 $25,000, Time to zine. publication, exchange right at in $12,500 for the additional excerpt to words from Mr. 7,500 Ford’s account of the Nixon pardon. featuring excerpts The issue the was timed to appear approximately shipment before full one week of the length Exclusivity book an im- version to bookstores. was portant Harper procedures consideration; & Row instituted designed confidentiality manuscript, to maintain the of the right renegotiate pay- and Time retained the the second appear print prior in ment should the material to its release excerpts. of the
Two to three weeks before the Time article’s scheduled person secretly brought copy an release, unidentified of the manuscript Navasky, Ford to Victor Nation, editor of The political commentary magazine. Navasky Mr. knew that his possession manuscript of the was not authorized and that manuscript quickly must be returned his “source” to avoid (SDNY 1983). discovery. Supp. 557F. 1067, 1069 He hast ily put together story” what he believed was “a real hot news composed quotes, paraphrases, and facts drawn exclu sively manuscript. Navasky attempted Ibid. from Mr. independent commentary, part criticism, no research or speed if because need for he was to “make news” “publishing] publication in advance of of the Ford book.” App. reprinted 416-417. 2,250-word The article, Appendix opinion, appeared April to this on 1979. As a piece The article, result of Nation’s Time canceled its and pay remaining refused to $12,500. brought
Petitioners suit the District Court for the alleging District of New York, conversion, Southern tortious Copyright interference with and violations of the contract, 6-day Judge After a trial, Act. bench the District found that protected by copyright “A Time to Heal” was time of publication respondents’ copy- Nation use of the righted infringement Copy- material constituted an under the §§ right 106(1), (2), (3), protecting respectively Act, right reproduce right preparation work, license right of derivative and the distribution of works, first *5 App. public. copyrighted to the Pet. for Cert. work rejected respondents’ ar- District Court The C-29—C-30. piece gument use” sanctioned was a “fair that The Nation’s Though by news,” the arti- Act. billed as “hot 107 of the magazine “published The had no new facts. cle contained profit,” taking “the heart” of “a soon-to-be article for its published” the Time unauthorized use “caused work. This agreement the value of the thus diminished to be aborted and Although Supp., copyright.” certain ele- F. at 1072. as historical facts and mem- memoirs, of the Ford such ments copyrightable, per the District Court not se oranda, were totality and memoranda that it “the of these facts held was together made them Ford’s reflections that collected with totality pro- [and] . . . ... Nation, The this of value to copyright Id., The laws.” at 1072-1073. tected damages $12,500. court awarded actual Appeals panel for the A of the Court of Second divided majority recognized The that Mr. Ford’s reversed. Circuit protected original “expression” “reflections” were verbatim by copyright. had erred But it held that the District Court uncopy- reflections] assuming “coupling [of these copy- rightable information into a fact transformed that ” (1983). majority ‘totality.’ righted 723 F. 2d expression, facts or attaches to noted that granting that, It concluded to avoid ideas. “ history underlying monopoly ‘ex- news, over the facts pression’ [in confined] must be to its barest such works ordering and choice of the words themselves.” elements —the original and the Id., at 204. Thus similarities between copying paraphrasing challenged to the or work traceable uncopyrightable as historical memo- material, facts, such quoted remarks of documents, and randa and other disregarded evaluating parties, whether third must be infringing. author’s use was fair second away, uncopyrighted stripped material is “When approxi- contains, most, in The Nation the article
645 mately copyrighted. 300 remain- words are These ing paragraphs phrases are all verbatim scattered appeared quotations from the memoirs had not which previously publications. They in other include a short segment Henry Kissinger of Ford’s conversations with impressionistic and several other individuals. Ford’s depictions phlebitis resigna- ill the Nixon, with after pardon, tion and and of Nixon’s constitute the character, major portion parts of this material. It is these of the magazine piece [the court] [its] focus in on which must question a examination of the whether there was ‘fair copyrighted Id., use’ of matter.” at 206. §
Examining see 107, infra, the four factors enumerated majority purpose the article 2, n. the found the was essentially reporting,” original the factual “news work was appropriated the 300 insubstantial in nature, words were piece, impact relation to the on the 2,250-word and the mar- original [did] ket for the was evidence minimal as “the finding very expres- support a that it was the limited use print per not to sion excerpt.” se which led to Time’s decision the borrowing quotations The Nation’s of verbatim significant merely authenticity politically “len[t] to this mate- complementing reporting F. . . . the facts.” rial Appeals especially at 208. Court of was influenced 2d, significant” subject by “politically matter nature of Copyright purpose conviction that it is not and its “the necessary impede knowledge Act to that harvest of so by press state” democratic or “chill the activities Id., copyrighted forbidding use of words.” circumscribed at 197, 209.
II in- agree Appeals copyright is We the Court of impede of knowl- tended to and not to the harvest increase gave edge. insufficient But we believe the Second Circuit Copyright Act for deference scheme established fostering original provide works that the seed and sub- rights by copyright stance of this harvest. The conferred designed knowledge are to assure contributors to the store of Century a fair return for their labors. Twentieth Music (1975). Corp. Aiken, v. U. S. provides: I, 8,
Article
of the Constitution
Congress
“The
shall have Power ...
Promote
Progress
by securing
Arts,
of Science and useful
*7
limited Times to Authors and Inventors the exclusive
Right
respective Writings
to their
and Discoveries.”
grant
by
“[This]
As we noted last Term:
limited
is a means
important public purpose may
which an
be
It
achieved.
is
activity
in-
intended to motivate the creative
of authors and
provision
special
ventors
of
reward,
and to allow the
products
genius
access to the
of their
after the limited
period
expired.” Sony Corp.
of exclusive control has
of
City Studios, Inc.,
America v. Universal
464
U. S.
429
(1984).
monopoly
by copyright
“The
created
thus rewards
public.”
in
Id.,
the individual author
order to benefit the
at
(dissenting opinion).
principle applies equally
477
This
works of fiction and nonfiction. The
here,
book
issue
for
example,
years
making,
began
in
was two
and
with con-
giving
copyright
publishers
tract
the author’s
to the
in ex-
change
producing
marketing
in
for their services
and
preparing
essays
In
the book,
work.
Mr. Ford drafted
and
portraits
public figures
participated
in
word
hundreds
taped
interviews that were later distilled to chronicle his
viewpoint.
personal
monopoly granted
It is evident that the
by copyright actively
purpose
inducing
served its intended
potential
the creation of new material of
historical value.
Copyright
Section 106of the
Act confers a
of exclu-
bundle
rights
copyright.1
Copy-
sive
to the owner of the
Under the
1
provides
pertinent part:
in
Section
“Subject
through
copyright
to sections
the owner of
under this
rights
any
following:
title
has
exclusive
do and authorize
of the
right
rights
publish, copy,
Act, these
and distribute the
—to
original
author’s
in
work—vest
the author of an
work from
§106.
practice,
the time of its creation.
the author
commonly
rights
publishers
royalties
sells his
who offer
exchange
producing
marketing
their services
copyright
rights,
the author’s work. The
owner’s
however,
subject
statutory exceptions.
§§107-118.
are
to certain
Among
privilege
these
107 which codifies the traditional
of other authors to make “fair use”
anof
earlier writer’s
may copyright
work.2 In
no
addition,
author
facts
ideas.
§102.
copyright
aspects
The
is limited to those
“expression”
display
stamp
work—termed
—that
originality.
author’s
compilation
pure
Creation of a
work,
nonfiction
even a
originality.
g.,
fact, entails
e.
See,
Schroeder v. William
(CA7 1977)(copyright
garden-
Co.,
Morrow &
“(1)
purpose
use,
and
including
character of the
whether such
use
of
nature
is for nonprofit
a commercial
educational purposes;
“(2)
work;
copyrighted
the nature of the
“(3) the
of
substantiality
portion
amount and
used in relation to
copyrighted
whole;
work as a
and
“(4) the
upon
potential
effect of the
value
use
market for or
of
copyrighted work.”
§§
App.
procedures.
401, 408;
to Pet.
istration
See
dispute
unpublished
no
that the
Cert. C-20. Thus there is
protected
manuscript
Heal,”
whole,
“A Time to
as a
was
of
respondents
reproduction.
do
106 from unauthorized
Nor
excerpts
manuscript’s
dispute
copying
that verbatim
infringement
original
expression
would constitute
form
Copyright
fair use.
M. Nimmer,
unless excused as
Nimmer).
(1984)(hereinafter
copy
p.
Yet
§2.11[B],
2-159
copying
right
prevent subsequent
not
users from
from a
does
prior
that are not
author’s work those constituent elements
original
example, quotations borrowed under the rubric
—for
copyrighted works, facts,
of fair use from other
or materials
long
unfairly
in the
domain—as
as such use does not
appropriate
original
Ibid,.;
the author’s
contributions.
(1958),
Copyrighted
reprinted
A. Latman, Fair Use of
Works
Study
Copyright
14 in
14-
as
No.
Law Revision Studies Nos.
Judiciary,
prepared for the
on the
86th
Senate Committee
(1960) (hereinafter Latman). Perhaps
Cong., 2d
Sess.,
controversy
between the lower courts
this case over
copyrightability
aptly styled dispute
is more
over whether
appropriation
unoriginal
uncopyrightable
The Nation’s
originality
on the
the work
elements encroached
embodied
Especially
narrative,
in the realm factual
as a whole.
currently
regarding
ways in which
law is
unsettled
uncopyrightable
original
elements combine with the author’s
protected
Compare
expression.
to form
contributions
Wain
wright
Transcript Corp.,
Inc. v.
Securities
Wall Street
(CA2 1977) (protection
analy
I—I H—I r-H <C j ^ traditionally Fair privilege use was defined as “a in others than the copyrighted owner of the to use the mate- rial in a reasonable manner without his consent.” H. Ball, Copyright (1944)(herein- Literary Property Law of Ball). statutory after formulation of the defense of fair Copyright use in Congress Act reflects the intent of codify the common-law doctrine. 3 Nimmer 13.05. Sec- requires case-by-case tion 107 par- determination whether a ticular use fair, and the statute notes four nonexclusive approach factors to be considered. This was “intended to [pre-existing] judicial restate the doctrine of fair use, change, enlarge any way.” Rep. narrow, in it H. R. (1976)(hereinafter p. Report). No. 94-1476, House “[T]he copy- author’s consent to a reasonable use of his righted always ha[d] implied by works been the courts as a necessary policy promoting incident of the constitutional progress prohibition of science and the useful arts, since a subsequent attempting such use would inhibit writers from improve upon prior very works and thus . . . frustrate the sought ends to be attained.” Ball 260. Professor Latman, study Congress of the doctrine of fair use commissioned Sony Corp. for the revision effort, see America v. Univer- City sal Studios, Inc., (dissenting S.,U. n. 9 462-463, opinion), prior turning “importance summarized law as on the *10 550 performed point copied of view from the material copyright words, In other would owner. the reasonable
of use?” have consented to the owner the reasonable 15.3 Latman Story gave judicial recognition early as 1841,
As Justice another that the letters of a case concerned the doctrine George Washington. President, former fairly original may largely “[A] the cite from reviewer truly passages design really if his be and use work, purposes fair criticism. On of and reasonable for most if he thus cites the clear, it is as hand, other important parts view, criticise, a not to work, of original supersede sub- the use work, but in law it, for such a use will be deemed stitute review piracy.” Marsh, v. 9 F. 344-345 842, Folsom Cas. Mass.) (No. (CC 4,901) Story’s hypothetical doc- illustrates, the fair use
As Justice “supersede^] always precluded a the use has use that trine p. Rep. original.” 65 94-473, Ibid. S. No. Accord, (hereinafter (1975) Report). Senate predicated Perhaps on fair because the use doctrine was customary” implied consent to “reasonable and the author’s consumption, fair he his work when released use charges traditionally recognized as defense to use was 3 precise guide more can be “[Perhaps] notes: no Professor Nimmer Joseph paraphrase the Golden Rule: than McDonald’s clever stated you an in such from to such extent and a manner ‘Take not others ” 13.05[A], at they you.’ if so took 3 Nimmer be resentful from would Uses, McDonald, Copyright 9 Bull. 13-66, quoting Non-infringing Soc. reason,” Sony America v. (1962). Corp. “equitable This rule of 467 Inc., Studios, City S., 448, “permits courts to avoid Universal U. when, occasion, on it would stifle rigid application of the statute Uni Iowa State creativity foster.” very designed that law which Foundation, Cos., Broadcasting Inc. v. American versity Research F. (CA2 1980). Seltzer, Exemptions Fair generally Use L. 2d (1978). Copyright 18-48 copying yet unpublished from an author’s as works.4 copyright, property Under common-law “the of the author [was] in his ... intellectual creation absolute until he volun tarily part[ed] with the same.” American Tobacco v.Co. *11 (1907); Werckmeister, 2 284, 207 U. S. 299 Nimmer § 8.23,at 8-273. tempered prac This absolute rule, however, was by equitable tice nature of the fair use doctrine. In a given implied through case, factors such as consent de facto publication performance may on dissemination of work tip equities prepublication the balance of in favor of use. See Copyright Law Revision—Part 2: Discussion and Comments Report Register Copyrights on on General Revision (H. Copyright Cong., of the U. S. Law, 88th 1st 27 Sess., R. 1963) (discussion suggesting Comm. Print works dissemi constituting nated to the in a form not a techni “publication” subject use); cal should nevertheless be to fair § 3 Nimmer 13.05, at n. 2. 13-62, But it has never been seriously disputed plaintiff’s that “the fact that the work is unpublished tending negate ... is a factor the defense of expression fair use.” Ibid. Publication of an author’s be seriously infringes fore he has authorized its dissemination right the author’s to decide when and whether it will be made public, present published a factor not in fair use of works.5 4 7; Strauss, See Latman Unpublished Protection (1957), Works re printed Study as No. 29 in Copyright Law 29-31, Revision Studies Nos. prepared for the 4, Ball States works”); Weil, v. Pressdram of the work of an (1979) (United 5See, n. 32 260, unpublished 67 e. Wheaton v. (1961) A. n. 5 (1950) (“[T]here g., by Ltd., others”). (“[T]he Kingdom) (citing Senate Committee on the work American [1973] doctrine cases); “has, (“no Cf. M. Peters, All E. R. can be no Copyright probably, fair R. of fair use does Flint, 8 Pet. Shaw, dealing 241, ‘fair use’ of A Law 591, User’s Guide to Literary Judiciary, right § 276, p. (Ch. 1972) (same). unpublished works”); (1834) Property in the United unpublished material”); prevent 115 apply 86th (distinguishing the (1917)(the Copyright ¶ Cong., even a ‘fair use’ unpublished 2d author Beloff Sess., 10.06 right author’s common-law against anyone “obtain redress who ... improperly obtaining copy unpublished [of his work] endeavors to realize Congress, including Respondents contend, however, that § among rights publication in 106, enumerated which first subject expressly 107, to fair use under intended that are apply pari published would materia to and un- fair use Copyright support published works. The Act does not this proposition. major Copyright represents Act the culmination of a
legislative Mills reexamination of doctrine. See (1985);Sony Snyder, Music, Inc. v. 159-160 U. S. Corp. City Studios, Inc., v. S., America Universal 464 U. (dissenting opinion). Among n. 9 its other inno- 462-463, at publication dividing it eliminated “as a line between vations, statutory protection,” Report, commonlaw and House statutory extending protection from the time to all works recognized also time a their creation. It first distinct statutory right publication, previously *12 of first which had been protections unpub- common-law an element of the afforded Report works. The of the House on the lished Committee (3) Judiciary confirms that “Clause of section establishes 106, right publications provision of .... the exclusive Under this right owner would have to control the first the copy public distribution of an authorized ... of his work.” Id., 62. at
Though
right
publication,
rights
of first
like the other
§
expressly
subject
in 106,
enumerated
is
made
to the fair use
analysis
provision
always
fair
must
107,
use
be tailored to
§13.05[A].
Id., at
3 Nimmer
The
65;
the individual case.
profit by
publication”
rights
published work,
pre
in
its
from
which are
Monroe,
Publishing
Press
Co. v.
by statute);
196, 199 (CA2),
scribed
73 F.
(1896); Stanley
v. Columbia Broad
dism’d,
writ of error
unpublished in fair nature of work to analysis. discussing photocopied fair use of materials use Report the Committee states: the classroom necessarily key, though determinative,
“A factor use is whether or not the work is available to the fair print’ potential user. If the work is ‘out of and unavail- may purchase through the user channels, able for normal reproducing justification it ... . The have more *13 unpublished applicability fair use doctrine to of the narrowly although un- the work is since, works is limited of a deliberate choice on available, this is the result part ordinary of the circum- owner. Under ‘right publication’ stances, the of first owner’s outweigh any reproduction for classroom would needs of purposes.” Report, Senate at 64. photocopying
Although classroom the Committee of selected emphasized same “the illustrate fair it use, to materials applicable general all kinds of uses fair use are standards of unconvincing copyrighted Id., at 65. find material.” We of quoted pas- respondents’ the absence of the contention Report sage an intent to abandon House indicates from the published and between fair use the traditional distinction appears unpublished dis- instead that the fair use works. It photocopying omitted of classroom materials was cussion of publishers Report in the final because educators from the guidelines negotiated that rendered the a set of interim had Report, Re- at 67. The House obsolete. House discussion incorporates port reference, the discussion nevertheless stating: Report citing “The Committee has to the Senate an it still has value as discussion, and considers reviewed this aspects problem.” [fair use] analysis Ibid. of various entirely legislative history silent, if we Even were Congress’ to conclude from characterization would be bound preserve § that its effect was to of 107 as a “restatement” existing concerning unpublished as of fair use of works law “change, types protected narrow, works and not to other unpub- enlarge Id., at 66. We conclude that the it.” necessarily key, though “[a] nature of a work is lished tending negate a defense of fair determinative, factor” Report, 13.05, 13-62, at 64. See Nimmer use. Senate Privilege Copyright Patry, Law 125 The Fair Use n. W. 2; (1985)(hereinafter Patry). unpersuasive respondents’ argument that fair also find
We manuscript soon-to-be-published may on the made of a use be ground author has he has no interest that the demonstrated argument unpub nonpublication. This assumes that the only copyrighted relevant material is lished nature writings not intended for dis or other confidential letters copyright was often It is true that common-law semination. personal privacy. Brandeis & enlisted the service Privacy, Right Harv. L. Rev. 198-199 Warren, (1890). right guise, author’s however, an its commercial deserving pro- publish no less when he will to choose
555 period encompassing the initiation, tection. The work’s its preparation, grooming public and its dissemination is a any literary Copyright Act, crucial one for endeavor. The “right which accords the owner the to control the public Report, work, first distribution” of his House that the echos commonlaw’s concern author or throughout stage. gen- owner retain this critical control See erally Stage of Publication a “Fair Comment, as Use” Harper Enterprises, v. Row, Factor: Publishers Nation & (1984). St. John’s L. Rev. 597 The obvious author benefit to public assuring develop and alike of authors the leisure to expropriation any outweighs their ideas free from fear of gained premature publi- short-term “news value” to be from expression. Copyright Goldstein, cation of author’s L. Amendment, and the First 70 Colum. Rev. 1004-1006 (1970) (The protection absolute the common law accorded brevity published justified by “[was] [its] soon-to-be works expedience”). and control of dis- The author’s first implicates only personal interest in creative tribution his property exploitation prepublica- control but his interest rights, tion which are valuable themselves and serve as adjunct publicity marketing. valuable See Belushi (DC 1984)(successful Supp. Woodward, 598 F. v. market- ing depends on coordination of serialization and release public); Subsidiary Rights Permissions, What Marks, (ex- (C. 1967) Happens Publishing in Book Grannis ed. ploitation subsidiary necessary rights is to financial success books). ordinary circumstances, of new the author’s Under right public appearance of his undissemi- control the first expression outweigh nated of fair use. will a claim
B Respondents, contend First however, Amendment require a rule under the values different circumstances “[t]he The thrust of the decision this case. below is that undoubtedly use] scope [fair wider when information *15 conveyed high public relates to matters of concern.” Con Signal States, sumers Union the United Inc. v. General (CA2 1983) Corp., (construing 1050 724 F. 2d F. 1044, 723 2d (1983) below) (case allowing quote 195 as advertiser Con (1984). Reports), denied, sumer 823 cert. U. S. Re spondents public import substantial advance the of the sub ject grounds excusing matter of the Ford memoirs as for ordinarily pass that use piracy would not as a muster fair use—the quotations purpose “scooping” of verbatim Respondents explain the authorized first serialization. their copying expression reporting of Mr. Ford’s as essential story represents. respond news it claims the book itself only ents’ view, not the facts contained in Mr. Ford’s mem precise expressed oirs, [he] but in “the manner which himself [were] newsworthy say.” as as what he had to Brief for Respondents Respondents argue public’s 38-39. that the learning possible outweighs in interest news this as fast as right publication. of the to control its author first correctly, copyright’s The Second noted, Circuit idea/ expression dichotomy “strike[s] a definitional balance be- Copyright by per- tween mitting First Amendment and the Act protecting free communication of facts still while an expression.” may author’s 723 F. 2d, at 203. No author copyright his ideas or facts he narrates. 17 U. S. C. 102(b). g., See, e. New York Times v. States, Co. United (1971) concurring) 403 U. n. 713, 726, S. J., (Brennan, (Copyright speech laws are restrictions on freedom of as copyright protects only expression form of and not the ideas expressed); §1.10[B][2]. long ago 1 Nimmer As this Court “[T]he respecting observed: news element—the information literary production current events contained not —is report writer, the creation of the but is a of matters that ordinarily juris; publici history day.” are it is International v. Press, News Service 248 U. Associated S. (1918). But those who assures write publish factual narratives such “A Time to Heal” as
they may enjoy right original at least to market the expression just compensation contained therein as for their Scripps-Howard Broadcasting investment. Cf. Zacchini v. (1977). Co., 433 U. S.
Respondents’ theory,
expand
however, would
fair use to
effectively destroy any expectation
copyright protection
public figure.
protection,
the work of a
Absent such
there
profit
financing
would be little incentive to
create or
such
important
memoirs, and the
would be denied an
source
significant
promise
copy
historical information. The
*16
right
empty
merely
would be an
one if it could be avoided
by dubbing
infringement
report”
a fair use “news
Wainwright
the book. See
Securities Inc. v. Wall Street
(CA2
Transcript Corp.,
1977),
Nor do assert actual for cir- cumventing copyright respect types scheme with to the of works and users at issue here.6 Where an author and publisher creating have invested extensive resources an original poised public, work and are it release to the no legitimate by pre-empting right aim is served of first publication. The fact that the words the author has chosen may “newsworthy” to clothe his narrative of themselves be independent justification copying not an for unauthorized expression prior publication. paraphrase the author’s To another recent Second Circuit decision:
“[Respondent] possessed right any an unfettered to use [the memoirs] factual information revealed for the purpose enlightening its it audience, but can claim 6 noting Congress It Copyright recognized public bears in the Act a warranting specific exemptions interest in a number areas not within g., e. use, see, (compulsory traditional fair 17 U. S. C. 115 license for (no works). records); § copyright exemption Government No such copyright limits in personal by public narratives written servants after they leave Government service. ‘bodily appropriate’ ‘expression’ [Mr. Ford’s]
no need to by utilizing portions of that information of the actual [manuscript]. interest in the free flow of recognize information is assured the law’s refusal to copyright valid in facts. The fair use doctrine is not a corporate empowering ignore license for theft, a court to underlying whenever it determines the work possible public importance.” contains material of Iowa University State Research Foundation, Inc. v. Ameri- (1980) Broadcasting Cos., can Inc., 621 F. 2d (citations omitted). Roy Export
Accord,
Co. Establishment v. Columbia Broad
(SDNY
casting System,
1980)
Supp.
Inc., 503 F.
(“newsworthiness”
copied
justify copy
of material
does not
ing),
(CA2),
aff’d,
In our haste to news, disseminate it should not be for- gotten that the Framers intended itself to be the engine expression. By establishing of free a marketable right expression, copyright supplies to the use of one’s economic incentive This to create and disseminate ideas. *17 (1954): Court stated in Mazer v. Stein, 347 U. S. philosophy “The empower- economic behind the clause ing Congress grant patents copyrights to and is the encouragement by conviction that of individual effort personal gain way public is the best to advance welfare through the talents of authors and inventors in ‘Science and useful Arts.’” again Century Corp.
And Twentieth Music v. Aiken: copyright “The immediate effect of our law is to secure a fair return for an ‘author’s’ creative labor. But the by ultimate aim is, [the this incentive, to stimulate general works] public creation good.” of useful for the 422 U. atS., 156. copyright fundamentally the at odds with scheme of
It is greatest rights in those works that are of lesser to accord major ignores public. the importance to the Such a notion public injures premise and author and alike. imposed propose the “[T]o whenever ‘social that fair use be any outweighs dissemination] [of to . . . the detriment value propose depriving copyright owners of to would be artist/ they property precisely right in when encounter their the pay it.” Gordon, Fair users could afford to those who Analysis A and Economic as Failure: Structural Use Market L. and 82 Colum. Predecessors, the Betamax Case its (1982). And one commentator has noted: 1600, 1615 as Rev. every could that was interest be “If volume away competing publisher, public [soon] . pirated . . reading.” Copyright nothing and Sobel, have worth would Gathering A 19 ASCAP Storm?, First Amendment: (1971). generally Symposium Copyright Law Copyright Lies Amendment; and the First Where Comment, (1984). L. Rev. 135 59 Tulane Interest?, the Public expression thought “includes Moreover, freedom right right speak freely from to refrain both Wooley Maynard, speaking 705, 714 v. 430 U. S. all.” J.). (1977) suggest right not this C. We do (Burger, monop- speak abuse of the owner’s would sanction suppress oly in the words of facts. But as an instrument Judge Fuld: New York’s Chief pro- First Amendment is to
“The essential thrust expres- voluntary public improper restraints on hibit speak man who it shields the wants ideas; sion of quiet. publish him to be There is others when wish suitably necessarily, a concom- areas, defined and within speak publicly, one not to which serves itant freedom speech in its affirmative as same ultimate end freedom *18 ” Hemingway aspect. House, Inc., v. Random Estate of (1968). E. 2d 255 348, 250, Y. 244 N. 341, 23 N. 2d 560 recognized copyright,
Courts have and commentators right publication particular, and in the of first serve this countervailing Schnapper First Amendment value. See v. Foley, App. (1981), D. 59, 215 U. S. C. F. 2d 102 cert. (1982); U. denied, 455 S. 948 Nimmer at § 1.10[B], 1-70, Patry n. 24; 140-142. protections already the view of First Amendment em- Copyright copyright-
bodied the Act’s distinction between expression uncopyrightable able and facts ideas, and and the scholarship traditionally latitude for and comment afforded by expanding fair we see no use, warrant the doctrine public figure exception fair use to create what amounts to a copyright. copying public figure’s Whether verbatim from a manuscript given judged in a is or fair case is not must be according equities traditional of fair use.
H-l <1 question Fair use ais mixed law fact. & Pacific (CA11 Duncan, Southern v. Co. F. 2d n. 1984). Where district court has found facts sufficient to statutory appellate evaluate factors, each an court factfinding may “need [but] not remand for further . . . con- challenged [the use] do[es] clude as a matter of law that not qualify copyrighted as a fair use of the work.” Id., at 1495. Thus whether The Nation article constitutes fair use under light principles 107 must be reviewed discussed above. The factors enumerated in the section are meant “[S]ince equitable to be exclusive: the doctrine is an rule generally applicable possible, of reason, no definition raising question each case must be decided on its own Report, facts.” House 65. The four factors identified Congress especially determining as relevant in whether the (1) purpose use was are: fair and character of the use; (2) (3) copyrighted substantiality nature of the work; portion copyrighted used relation to the work as
561 (4) potential for or value of on the market whole; a the effect separately. copyrighted address each one work. We correctly Purpose The identi- the Use. Second Circuit of general reporting purpose of The Nation’s as the fied news examples reporting is enumerated one of the use. News § “give of the courts idea of the sort activities 107 to some might regard Senate fair use under the circumstances.” as listing Report, to be exhaus- 61. was not intended at This (definition as”), “including” ibid,.; and “such tive, see single any particular presumptively a “fair” use as to out special pressures from interest The drafters resisted use. presumptive categories groups use, of fair but to create requiring provision an affirmative defense as structured analysis. Cong., case-by-case Rep. H. R. 90th 83, No. a (1967);Patry “[WJhether a n. 4. use re- Sess., 1st is fair use in 107 a to in the sentence section ferred first upon application depend particular of the de- case will including in the second those mentioned factors, terminative Report, that an article at 62. The fact Senate sentence.” simply productive arguably use is and therefore a is “news” analysis. in a use factor fair one agree erred the trial court Circuit that We Second fixing in the mem- information contained on whether the wisely public. Judge actually Meskill new the As oirs was “[cjourts deciding chary is and what should be what noted, (dissenting). v. Cf. Gertz 723 F. 2d, is not news.” (1974). “The Welch, Inc., 345-346 418 U. S. Robert a claim but whether ‘news,’ constitutes issue is not what infringement newsreporting fair to an a valid use defense is Patry has copyrightable expression.” 119. Nation The every right publish information. the first to be to seek uncopyright- reporting beyond simply But Nation went actively sought exploit headline able information and of its out infringement, making event” of its a “news value copyrighted figure’s publication first of a noted unauthorized expression. publication opposed
The fact that a was commercial as nonprofit separate weigh against is a factor that tends to finding “[E]very copyrighted of fair use. commercial use of presumptively exploitation material an unfair monopoly privilege belongs copy- to the owner of the *20 right.” Sony Corp. City America v. Studios, Universal of arguing purpose Inc., 464 S.,U. at 451. In that the of news reporting purely is not commercial, The Nation misses the point entirely. profit/nonprofit The crux of the distinction monetary gain is not whether the sole motive of the use is profit exploitation but whether the user stands to from copyrighted paying customary material without price. Roy Export Co. Establishment v. Columbia Broadcasting System, Supp., Inc., 503 F. at 1144;3 Nimmer §13.05[A][1], 13-71, at n. 25.3. evaluating purpose ignore character and we cannot purpose scooping forthcoming
Nation’s stated hard- App. cover and Time abstracts.7 to Pet. for Cert. C-27. merely The Nation’s use had not the incidental effect but the purpose supplanting intended the publication. holder’s com- mercially right valuable of first See Meredith Corp. Harper Row, v. Supp. Publishers, & Inc., 378 F. 686, (SDNY) (purpose compete original), of text was to (CA2 1974). F. aff’d, 2d 1221 Also relevant to the “char- propriety acter” of the use is “the of the defendant’s con- duct.” 3 Nimmer presup- 13.05[A], at 13-72. “Fair use poses ‘good dealing.’” faith’ and ‘fair Time Inc. v. Bernard (SDNY Supp. 1968), Associates, Geis 293 F. quoting 130, 146 7The dissent excuses The Nation’s unpublished unconsented use of an manuscript journalistic as “standard practice,” taking judicial notice of New York articles regarding Times Erlichman, memoirs of John John Ambition,” Dean’s “Blind and Bernstein and Days” Woodward’s “The Final Post, proof practice. 590-593, as of such at and n. 14. Amici curiae sought bring alleged practice this to the attention of the Court of Appeals Circuit, for the citing Second these same articles. The Court of Appeals, motion, Harper at & Row’s struck these exhibits for failure of proof trial, 19; at they Record Doc. No. thus proper subject are not a for judicial this Court’s notice. Copyright Revision
Schulman, Act, Fair Use and the (1968). The trial that The 53 Iowa L. Rev. 832 court found knowingly exploited purloined manuscript. App. Nation C-21, to Pet. for Cert. C-28—C-29. Unlike B-1, C-20— typical up claim of fair The Nation cannot offer even the use, justification. competitor Like its fiction of consent as news weekly, right abstracting excerpts it was free to bid for “distinguishes “A Fair use between ‘a from Time to Heal.” infringes personal true a work for scholar and a chiseler who profit.’” Wainwright Inc. v. Wall Street Tran Securities Hearings script Corp., quoting 558F. from on Bills 2d, 94, Copyright the General Revision of the Law before Judiciary, Cong., House 89th 1st Sess., Committee on the (1966) (statement Schulman). pt. p. ser. of John Copyrighted the Act Second, Nature Work. directs copyrighted the nature of the work. “A Time attention to may unpublished be characterized as an historical to Heal” *21 autobiography. generally recognizes narrative or The law greater need to disseminate factual works than works of Impli- fantasy. Fancy? The Gorman, fiction or Fact or (1982). Copyright, Copyright 560, 561 cations for 29 J. Soc. grada- “[E]ven works, fact there are within the field of proportion fancy. tions as to the relative of fact and may sparsely maps move from embellished One and di- elegantly biography. rectories to written The extent to permit expressive language copied, one must to be which underlying in to assure dissemination of the facts, order vary Id., from case to case.” at 563. will thus arguably quotes from the are Some of the briefer memoirs example, necessary convey adequately facts; for to the tapes Mr. as House Ford’s characterization of the White expressed “smoking gun” perhaps integral idea to the as so § inseparable 1.10[C]. to be But from it. 1 Nimmer Cf. stop phrases excerpted did not and instead Nation at isolated public descriptions portraits figures subjective whose expression. power in lies the author’s individualized Such focusing expressive use, on the most elements of the work, necessary that exceeds to disseminate the facts. unpublished The fact that a work is is a critical element of its “nature.” 3 13.05[A]; Nimmer Comment, 58 John’s St. prior L. at Rev., 613. Our discussion establishes scope respect unpublished of fair use is narrower to quotations might qualify works. While even substantial as published fair in a use of a review work or a news account of a speech that had been delivered or disseminated press, Report, right to the see House at 65, the author’s public appearance expression weighs control the first of his against right such use of the work before its release. The publication encompasses only first the choice whether to publish all, but also the when, choices of where, and publish what form first to a work. manuscript, copyright the case of Mr. Ford’s hold- confidentiality
ers’ interest is irrefutable; the undertaking “keep holders had entered into a contractual manuscript required confidential” and that all those to manuscript agreement “sign whom the was shown also an keep manuscript App. confidential.” to Pet. for Cert. C-19—C-20. While holders’ contract with required proposed days Time Time to its submit article seven publication, publication before The Nation’s clandestine af- opportunity quality forded no such for creative control. hastily patched together Id., at C-18. It was and contained App. (testimony “a number inaccuracies.” 300b-300c Navasky). clearly infringes copy- Victor A use so right confidentiality holder’s interests control creative *22 is difficult to characterize as “fair.” Substantiality
Amount and the Portion Next, Used. substantiality the Act directs us to examine the amount and portion copyrighted of the used in relation to the as work actually quoted whole. In terms, absolute the words were portion an insubstantial “Aof Time to The Heal.” District “[T]he Court, took however, found that Nation what was
565 Supp., essentially 557 1072. the book.” F. at the heart of overruling Appeals the erred believe the Court We qualitative Judge’s the of the nature of District evaluation g., Roy Export taking. Establishment v. Co- e. Co. See, Supp., Broadcasting System, 1145 Inc., 503 F. at lumbia (taking 1 film of hour and 29-minute deemed of 55 seconds out substantial). qualitatively the A Time editor described moving interesting chapters pardon most the as "the on manuscript.” Reply parts Brief for Petitioners of the entire portions actually quoted n. were selected 8. powerful passages Navasky among in those the most Mr. as excerpts chapters. be- He testified that he used verbatim adequately simply reciting not the information could cause convey certainty expressed [Ford] which “absolute with the App. “this from President himself,” 303; or show that comes orig- carry quality” of the “definitive the id., 305; at Ford,” pre- quoted passages short, 306. he these inal, id., at cisely they qualitatively Ford’s embodied distinctive because expression. taking may language statutory not indicates, a
As the merely respect because it insubstantial be excused Judge cogently infringing Hand As Learned work. wrong by showing plagiarist can “no excuse remarked, pirate.” Sheldon v. Metro- of his work he did not how much (CA2), Goldwyn Corp., denied, 81 F. 2d cert. Pictures (1936). Conversely, substantial U. fact S. copied infringing evi portion verbatim is work was copied qualitative both to material, value of dence profit originator plagiarist from who and to the seeks expression. marketing copyrighted someone else’s quotes,8 takings Stripped from the direct verbatim manuscript unpublished 13% the in- constitute least opinion, post, p. 570. The Court of Appeals Appendix to this copyrightable did only “approximately 300 words” were but found that however, it discussion, indicates specify which The court’s words. *23 fringing Meeropol article. Nizer, See v. 560F. 2d 1061, 1071 (CA2 1977) (copyrighted letters constituted less than 1% of featured). infringing prominently work but were The Na- quoted excerpts tion article is structured around the which points. Appendix serve as its dramatic focal opinion, post, p. to this expressive In 570. view of the value of the excerpts key infringing and their role work, we cannot agree “magazine with the Second Circuit that the took a meager, original indeed an infinitesimal amount of Ford’s language.” 2d, 723 F. at 209. Finally, on the Market. the Act focuses on “the Effect upon potential
effect of the use market for or value of copyrighted undoubtedly work.” This last factor is single important most element of fair use.9 See 3 Nimmer §13.05[A], 13-76, and cases cited therein. “Fair use, properly applied, when copying by is limited to others which excluded from portions consideration those piece that, The Nation’s although copied verbatim from manuscript, Ford’s quotes were attributed persons Ford to third quotations from Government documents. At argument, oral counsel for The dispute Nation did not quotes verbatim very paraphrase close could infringement. constitute Arg. Tr. of Oral Appendix 24-25. Thus the potentially identifies as infringing only verba- quotes tim very paraphrase close and excludes from consideration Gov- ernment documents and words persons. attributed to third Appendix The is not any particular intended to endorse rule of copyrightability but is merely intended as an aid to facilitate our discussion. 9Economists who have addressed the issue believe the fair exception use play only should come into in those situations which the market fails or price copyright holder would g., e. See, ask is near zero. T. Bren nan, Harper Nation, & Row v. Copyrightability Use, and Fair Dept. of Justice Policy Economic Office Paper (1984); Discussion Gordon, 13-17 Fair Use as Market Failure: A Structural and Analysis Economic Betamax Predecessors, Case and its (1982). Colum. L. Rev. demonstrate, As the facts here fully there is a functioning market that encourages the creation and dissemination of public figures. memoirs of view, the economists’ permitting displace “fair use” to normal disrupts channels market without a commensurate benefit. *24 marketability impair materially the of work does not 1-87. The trial copied.” §1.10[D], 1 Nimmer which is merely potential effect on but an actual a court found projected its serialization Time’s cancellation of the market. pay of were the direct effect $12,500 to refusal and its rejected Appeals infringement. fact- this The of Court noting clearly finding that the record did not erroneous, as nonperformance Time’s a relation between establish causal publication respondents’ ex- of Mr. Ford’s unauthorized and opposed pression taken from the memoirs. to the facts as infringement copyright disagree. Rarely will a case of We damage. present Petition- of actual such clear-cut evidence authorized would be no other assured Time that there ers unpublished manuscript any portion publication of of publication April Any prior material from 1979. of 23, to renegotiate permit chapters final its 1 3 would Time to and payment. contained article, Nation’s which Time cited The unpublished manuscript, quotes as a rea- from verbatim respect apportionment nonperformance. With to for its son infringement, flowing profits this Court from of commingles infringing infringer and who that an has held noninfringing consequences, unless “must abide the elements profits separation so as to assure he can make a belongs justly injured party him.” v. Sheldon all that (1940). Corp., Metro-Goldwyn 390, 309 U. S. Pictures (the 504(b) prove infringer required § Cf. 17 U. S. C. infringed profits than the to other attributable elements work). Similarly, holder establishes once a probability a causal connection the existence reasonable infringement the burden revenue, and a loss of between the damage infringer properly that this to show to the shifts copyrighted taking there been no had would have occurred § tio expression. at 14-7—14-8.1. Peti 14.02, 3 Nimmer damage prima facie case of actual ners respondents established Associates, Linen failed to rebut. See Stevens (CA2 1981). Corp., Inc. v. F. 2d Mastercraft properly damages trial court accounting awarded actual 504(b). profits. See 17 U. S. C. important, negate only More fair use one need show that challenged if widespread, use “should become it would adversely potential affect copyrighted market for the Sony Corp. work.” City America v. Universal Studios, (emphasis added); Inc., 464 U. at 451 S., id., at cases) (collecting (dissenting opinion). n. 36 inquiry This only original must take account not of harm to the but also of harm to the market for derivative works. See Iowa State *25 University Foundation, Research Inc. v. American Broad (CA2 casting 1980); Cos., 621 Meeropol F. 2d 57 v. Nizer, supra, Roy Export at 1070; Broadcasting v. Columbia System, Supp., Inc., 503 F. at 1146. “If the defendant’s adversely any work rights affects the value of of the in the (in copyrighted adaptation [and work this case the serializa right) tion] the use is not fair.” 3 Nimmer §13.05[B], at (footnote omitted). 13-77 — 13-78 undisputed It is that the factual material in the balance of The quotes Nation’s article, besides the verbatim at issue exclusively chapters here, was par- drawn from the on the excerpts employed don. The episodes were as featured in a story pardon precisely about the petitoners Nixon the use — borrowing had licensed to Time. The of these verbatim quotes unpublished manuscript from the lent The Nation’s piece special authenticity Navasky expressed air of —as the it, reader speaking would know it was Ford and not App. The directly competed Nation. 300c. Thus it for a prepublication share excerpts. of the market for The Senate Report states: special exceptions
“With certain supplants ... a use that any part of the copyrighted normal market for a work ordinarily would infringement.” be considered an Sen- Report, ate at 65. per- perspective, that a fair use doctrine in a
Placed broader quotations prepublication from an unreleased mits extensive poses copyright sub- manuscript consent owner’s the without marketability damage of first potential to the stantial general. of minor rights instances in “Isolated serialization many in multiplied the infringements, become times, when pre- major must be aggregate inroad on Ibid. vented.”
V concluding Appeals The Nation’s erred Court public’s by copyrighted was excused material use subject in over- erred, well, It as matter. in the interest resulting looking unpublished nature of the work and the per- rights of impact potential serial market for first on excerpts prepublication ru- mitting under unauthorized taking Finally, finding “infinitesimal,” of fair use. bric qualita- weight Appeals to the too little accorded the Court of expression. original quoted passages importance theof tive embodied use, of fair as doctrine the traditional sum, by The Copyright the use made Act, not sanction does Any in- copyrighted materials. of these Nation increasing public may fringer to benefit claim copyrighted Co. & Southern work. See access Pacific *26 Congress has not But 2d, F. at 1499-1500. Duncan, v. imposing, judicially designed, no for see warrant and we permitting the un- access to “compulsory unfettered license” public figures. expression published copyrighted copying of some that its verbatim The Nation conceded manuscript would quotation the Ford from words of direct Be- infringement a fair use. excused as unless constitute an ex- verbatim of these The Nation’s cause we find that use manuscript use, cerpts unpublished not a fair was from the Appeals judgment reversed, is Court this proceedings consistent remanded for further is case opinion. ordered. is so
It APPENDIX TO OPINION OF THE COURT portions of The Nation copied article which were “A verbatim from Heal,” excepting quotes Time to quotes from Government documents and persons, attributed Ford to third are identified in boldface in the text. ante, corresponding at n. 7. The passages in the Ford manu- script are footnoted.
THE FORD MEMOIRS THE BEHIND NIXON PARDON Harper In his A Time memoirs, To which Heal, & Row will publish May early in late June, former President R. Gerald says giving pardon Ford that the idea of a blanket to Richard resigned M. Nixon was raised before Nixon from the Presi- dency by Haig, Gen. Alexander who was then the White chief House of staff. misunderstanding,
Ford also writes that, but for a he might Reagan running have selected Ronald as his 1976 Washington lawyer mate, that Edward Bennett Williams, a Intelligence Democrat, was his choice for head of the Central Agency, proposed that Nixon was the one who first Rocke- regretted feller for Vice President, and that he his “coward- allowing ice”1 in Rockefeller to remove himself from Vice Presidential contention. Ford also describes his often prickly Henry Kissinger. relations with 655-page typescript publi-
The Nation obtained the before excerpts appear cation. Advance from the book will in Time mid-April Digest The Reader’s Al- thereafter. though print figure the initial order has not been decided, the tentatively change, depending upon at 50,000; set it could reaction to the serialization. pardon significant
Ford’s account of the Nixon contains negotiations new detail on the and considerations that sur- 1 I angry myself was showing saying cowardice to the ultra conservatives, going Rockefeller, “It’s to be Ford and whatever the conse *27 quences.” p. 496. According subject rounded it. to Ford’s version, the was by Haig August first him broached to General on 1, 1974, a resigned. Haig week before Nixon General revealed that newly tapes equiva- transcribed White House were the “smoking gun”2 lent prepare and that Ford should himself to become President. deeply by Haig’s past
Ford was hurt revelation: “Over the repeatedly several months Nixon had assured me that he Watergate, was not involved in that the evidence would prove innocence, his that the matter would fade from Haig explain view.”3 Ford had believed him, but he let President’s alternatives. resign, Haig
He could “ride it out”4 or he could said. He ways might resign then listed the different Nixon and con agree pointing cluded out that Nixon could to leave agreement return for an President, that Ford, new pardon Although would him.5 Ford said it would be im proper any basically for him to make recommendation, he agreed Haig’s assessment and adds, “Because of his pardon authority, Haig references to the I did ask about pardon power.”6 the extent of a President’s my understanding lawyer,” Haig “It’s from a White House replied, authority grant par- “that a President does have against don even before action has been taken criminal an individual.” smoking gun. p. [I]t contained the so-called 3. past several months Nixon [0]ver the had repeatedly that assured me
he Watergate, was not involved prove evidence would his inno cence, that the matter would fade from p. view. 7. 4The [option] try first that he could by letting was im- “ride it out” peachment through take natural course trial, its and the Senate House fighting against way. p. conviction all the 4. 5Finally, Haig according said that staff, to some on Nixon’s White House agree Nixon could agreement leave return for an the new Presi dent —Gerald pardon p. Ford —would him. 5. 6Because of his pardon authority, I did Haig references to ask about the pardon extent of a President’s power, pp. 5-6. *28 neglected Haig thought
But had to tell he the because Ford resignation pardon improper, idea of a conditioned on a was press suggested Haig might aide, Hartmann, his Bob well have returned to the White House and told President Nixon that the he had mentioned idea and Ford seemed com- implies fortable with it. “Silence assent.” special Ford then consulted with White House counsel way Clair, James St. who had no advice one or the other on pointing lawyer the matter more than out that he was not the given Haig opinion pardon. who had on the Ford also Marsh, discussed the matter with Jack who felt that the pardon in mention of a this context was a “time bomb,” Bryce Harlow, who had served six Presidents and who pardon agreed that the mere mention of a “could cause a lot of trouble.”7
As a result of conversations, these various Vice President Haig Ford called him “I and read a written statement: want you recommending to understand that I have no intention of resigning resign- what President should do about or not ing nothing yesterday and that we talked about afternoon given any should be consideration in whatever decision may President wish to make.”
Despite Haig “smoking gun” what had told him about tapes, a Jackson, Mich., Ford told luncheon audience later guilty day in that the President was not of an im- peachable I “Had said offense. otherwise at that mo- might ment,” he “the whole writes, house of cards have collapsed.”8 justifying pardon, goes way Ford out of his to assure “compassion
the reader that Nixon as an individual 7Only I [Bryce after had finished let uncer Harlow] did me know in no Jack, agreed tain terms that he with Bob and that the mere mention of the ahead, pardon option days p. could cause a lot of trouble 18. 8During my I repeated the luncheon assertion that the President was not guilty impeachable moment, of an offense. Had I said at that otherwise might collapsed, the whole cards have p. house of 21. prompted my
hadn’t decision at all.”9 Rather, he did it get monkey my way because he had “to off back one the other.”10 precipitating factor his decision was a series of meetings general
secret his Phil counsel, Buchen, held with Watergate Special Prosecutor Leon Jaworski the Jefferson they staying Hotel, where were both at the time. Ford *29 providing attributes Jaworski with some “crucial” infor- investigation e., mation11—i. that Nixon was under in ten process separate areas, and that the court could “take years.”12 Ford cites a memorandum from Jaworski’s assist- Henry being especially persuasive. ant, S. Ruth as Jr., Ruth had written: you
“If decide to recommend indictment I think it is fair proper notify to Jack Miller and the White House suffi- ciently pardon in advance so that action could be taken before say: strong the indictment.” He went on to “One can make a argument leniency for if and President inclined, Ford is so I ought early think he to do it rather than late.” proceedings against might Ford decided that court Nixon years, spend quietly take six that Nixon “would not time virtually impossible Clemente,”13 San and “it would be public anything me to direct attention on else.”14 Haig Henry Kissinger agreed Buchen, with him. Hartmann was not so sure.
9 compassion But for Nixon prompted my as an individual hadn’t decision p. at all. 266. another, get monkey my 10 Ihad to 11 way off back one p. 236. information, gave Jaworski Phil pieces p. several crucial 246. if Guilty, And the verdict was one had to assume that Nixon would appeal. process years, That p. would take 248. process The entire require years: two, would no doubt a minimum of a maximum of six. spend quietly And Nixon would not time in San Clemente, p. 238. virtually It impossible would be for me to direct on attention anything p. else. 239. on Nixon pardon agreeing
Buchen wanted to condition of who would retain and control custody to settle the question relevant and Presidential be tapes papers might over Ford reluctant various but was Watergate proceedings, that. do considered the Presiden- whereby
At one was point plan in a vault at a Federal facility tial materials would be kept but the vault would two Clemente, require keys near San it. One would be retained General Services open by the other Richard Nixon. Administration, Nixon to make a full did, however, House want White or, minimum, confession on the occasion of his at a ex- pardon Ford tells of the with Jack negotiation true contrition. press of Nixon’s state- Miller, lawyer, wording Nixon’s over ment. But as Ford Miller’s Nixon was reports response. meetings “His few with his client had likely yield. ability him former shown President’s to discuss Watergate objectively was almost nonexistent.”15
The statement wanted was never they really forthcoming. *30 As soon Ford’s arrived San he was emissary Clemente, as confronted with an ultimatum Ron Nixon’s for- Zeigler, mer “Lets one immedi- press secretary. get thing straight said. “President Nixon is not ately,” Zeigler issuing any whether regarding statement whatsoever Watergate, Jerry him draft, Ford or not.” which pardons Zeigler proposed that “no statement would turned on the ground was down be better than that.”16 went three more They through drafts on the statement Nixon they agreed finally before full made, which far short of a confession. stopped Ford Benton Becker tried to When aide to Nixon explain of a was an admission of he acceptance pardon guilt, optimistic getting But such a statement. [Miller] wasn’t about His few him meetings ability with his client had shown that the former President’s nonexistent, Watergate objectively p. to discuss was almost 246. Zeigler thought it, replied Becker he When asked what of Becker no statement would be better than that. p. 251. really listening.
felt the President wasn’t Instead, Nixon Washington wanted to talk about Redskins. And when pressed tiepin him Becker Nixon on some left, my cufflinks and a jewelry “out box.” own
Ultimately, up philosophy underlying Ford sums his picked up decision as one he as a student at Yale Law School public many years policy before. “I learned that often precedence Although respected took over a rule of law. I public pol- law, the tenet that man no should be above the icy put Watergate I demanded that Nixon—and —behind quickly possible.”17 us as as phlebitis
Later, when Ford learned that Nixon’s had acted up seriously impaired, and his health was he debated pay ailing whether to former President a “If I visit. trip everybody Watergate made the it would remind and pardon. people say compas- didn’t, If I would I lacked sion.”18 Ford went:
He was stretched out flat on his back. There were mouth, tubes in arms, his nose and and wires led from his legs orange lights chest and to machines with that blinked thought ashen, on and off. His face was I I had never anyone seen closer to death.19 manuscript made available to The Nation includes
many Henry Kissinger personalities references to and other played major during years. who role the Ford before, School, Years at Yale Law policy I’d learned that often precedence Although respected took over a rule of law. I the tenet that law, public policy no man should put be above demanded that I Nixon— Watergate quickly possible, p. us as as 256. —behind 18My ought Long staff debated whether or not I to visit at the Nixon Hospital, only away. trip, Beach half an If I hour made the it would re *31 everyone didn’t, Watergate pardon. people say mind and the If I would compassion. I lacked I I ended their debate as soon as found out it had I begun. go. p. Of course would 298. 19He There was stretched out flat on his back. were tubes his nose mouth, arms, legs and and wires led from his chest and to machines with ashen, orange lights thought that on and off. His face was and I I blinked death, anyone p. had never seen closer to 299. being Immediately Kissinger. after informed On resign, returned to the Execu- intention to Ford Nixon of his Henry Kissinger phoned Building to let him and tive Office you. “Henry,” “I need The said, he felt. he know how every- you. stay. country you I I’ll do want to needs you.”20 thing work with I can to my job along you get Kissinger replied, to “it “Sir,” get along yours with me.” to get along.” get along,” “I know we’ll Ford said. “We’ll Secretary Kissinger’s joint jobs Referring as of State Security “I Ford President, said, to the National Adviser any change. I think worked out it’s to make don’t want way.”21 keep well, let’s it that so Kissinger change and relieved did make the Later Ford Security responsibilities Adviser the same as National his Secretary Schlesinger of Defense. as he fired James time that presented Kissinger reports, Shortly him with he thereafter, resignation, he said Ford could call letter of which a “draft” quiet upon if it to from con- he felt he needed dissent at will firing Kissinger’s objected in the role servatives who Schlesinger. Connolly. that Nixon When Ford was informed
On John replace Agnew, told President he had him to he wanted January 1977.”22 Nixon to hold office after “no ambition good replied run- his own for his that was since choice Connally. ning excellent,” “He’d be in 1976was John mate problem says “no with that.” Ford he had Nixon. observed line, country you. “I I when he came on the need “Henry,” said you. you stay. everything I’ll I can to work with I want do needs you.” p. 46. get along.” we can We talked get along,” I said. know “We’ll “I wore, Secretary Security National hats he as of State and about the two change,” I “I any “I don’t to make said. Adviser to the President. want way.” well, keep p. let’s it that 46. worked out so think it’s Betty and said I had no my promise 22 I him about ambitions told p. January 1977. 155. to hold office after *32 Again. he tells so was, us, Ford to Run the Decision On thought again he he run not to in his intention sincere country credibility in the it and enhance his announce would promise keep Congress, he had made to as well as Betty. wife, his
Kissinger do that. It him of it. “You can’t talked out foreign policy point For of view. from a would be disastrous governments years foreign would half two and a the next dealing they President. a lame-duck with were know I and wouldn’t water, in the would be dead All our initiatives probably your foreign policy. implement would It be able to Congress dealing consequences on with have the same authority of the can’t reassert issues. You domestic hanging you yourself Presidency on a dead limb. out if leave got affirmative President.” to be an You’ve photographer. Kennerly, House White David On arguing Kissinger Schlesinger over the Ford was Mayaguez. response appropriate At to the seizure against were airstrikes the Cambodians whether issue was Following bombings. Schlesinger opposed was desirable; 30-year- reports, up spoke the Ford conversation, in the a lull Kennerly, photographer, had David who House old White taking pictures for the last hour. been might Kennerly anyone “that this asked, considered,” “Has just who commander has a local Cambodian be the act of by?” stop any ship that comes taken into his own hands it following Nobody, apparently, several it, had considered but day. carried the us, Ford tells the view silence, seconds of Ford overkill,” constitute would “Massive airstrikes Navy jets from better to have decided. would be far “It specific against surgical make strikes the Coral Sea targets.”23 of sense. lot Kennerly had said made 23 Subjectively, I felt that what far better be It would airstrikes overkill. would constitute Massive specific against Navy jets from the Coral surgical strikes Sea make
have vicinity p. 416. Kompong targets in the Som. according flaw, Ford, Nixon’s Nixon’s Character. On *33 terribly proud “pride.” man,” “he Ford, writes “A was people. him heard in other I’d often weakness detested disparagingly speak he felt to be soft and of those whom press (Curiously, expedient. feel that the was he didn’t Reporters, He sensed, adversaries. he were his weak. responded recipro- they him, he with didn’t like and knew disdain.)”24 cal leadership of the for the Democratic
Nixon felt disdain According regarded Ford, as weak. whom he also House, contempt personal pride had over for weakness and “His right ability and to tell the difference between his come wrong,”25 Nixon leads Ford to wonder whether all of which Watergate. in advance about had known speech, resignation hearing felt which Ford Nixon’s On forgiveness, persuaded plea adequate he was an lacked reality.”26 with “Nixon was out of touch that Washington year, February The Post ob- when In of last excerpts printed H. R. Haldeman’s from and advance tained by publication on the eve of its Power, The Ends memoir, Times called The Post’s feat The New York Books, Times burglary.” “a second-rate coup represented claiming disagreed, that its
The Post arguing burglarized enterprise” and that it had “first-rate publication nothing, the Haldeman memoir came long recognized by Fair Comment doctrine under man, terribly proud pride. A he de case, that flaw was In Nixon’s speak disparagingly heard him people. I’d often in other tested weakness (Curiously, expedient. he didn’t feel soft and he felt to be of those whom sensed, Reporters, were his adversaries. he press was weak. disdain.) him, responded reciprocal and he with they like knew didn’t He p. 53. ability contempt had overcome his for weakness personal and pride His wrong, p. 54. right and between the difference to tell I convinced minutes, and at the end was fifteen speech lasted reality, p. 57. of touch Nixon was out journalistic principle courts, that “There is a fundamental principle here—a First Amendment that was central to the Pentagon Papers case.” May special issue of The Nation dated our 5, 1979,
Spring Books number, we will discuss some of the ethical problems raised the issue of disclosure.
Justice Brennan, with whom Justice White Justice Marshall join, dissenting. quotation
The Court holds that The Nation’s of 300 words unpublished from the manuscript 200,000-word of President infringed Gerald R. manuscript, Ford in that though quotations even related to a historical event of *34 significance resignation undoubted pardon of Presi- —the Although dent Richard M. pursues Nixon. the Court goal protecting laudable of “the economicincentive to create and disseminate ideas,” ante, at 558, this zealous defense copyright prerogative owner’s Iwill, fear, stifle the broad copyright dissemination of ideas and information is in- tended copyright to nurture. Protection of the owner’s eco- nomic through interest is in exceedingly achieved this case an scope narrow progress definition of the of fair use. The arts public and sciences and the robust debate essential to enlightened citizenry an by are ill served this constricted reading § of the fair use doctrine. See 17 U. S. C. I 107. respectfully therefore dissent.
A presents A This case two issues. First, did The Nation’s use manuscript of material from the Ford in than di- forms other quotation manuscript Harper rect from infringe & Row’s copyright. quotation approximately Second, did manuscript infringe copyright words from the because quotation this did not constitute “fair use” within the mean- § ing Copyright of 107 of the Act. 17 U. C.S. 107. The copyrightability Court finds no need to resolve the threshold quotation issue. The use of 300 words of was, the Court beyond scope finds, copyright of fair use and thus a infringement.1 disagree I Because with the Court’s fair holding, necessary use it is for me to decide the threshold copyrightability question.
B copyright legislation by “The Congress enactment of under upon any terms of the Constitution is not based natural right writings upon the author has his . . . but ground public that the welfare of the will be served progress promoted science and useful arts will be secur- ing periods rights authors for limited the exclusive to their writings.” Rep. Cong., H. R. No. 2222, 60th Sess., 2d (1909). Congress rights thus seeks to define the included so as to serve the welfare and not neces- sarily so as to maximize an author’s control over his or her product. challenge is to strike the “difficult balance between the interests of authors and inventors in the exploitation writings control and of their and discoveries on society’s competing one hand, and interest the free flow of ideas, information, and commerce on the other hand.” Sony Corp. City America v. Universal Studios, Inc., 464 (1984). U. S. *35 “originality” § requirement
The now embodied 102of Copyright appropriate Act is crucial to maintenance of the competing balance Properly between these interests.2 in- 1In bypassing the issue, certainly threshold the Court does not intimate that The Nation’s use of ideas and other quoted information than the mate rial would constitute a copyright violation of the laws. At in its point one opinion correctly the Court governing principles respect states the ante, (“No the copyrightability question. copyright See at 556 may author narrates”). his ideas or the facts he 2 102(b) Section states: “In no copyright origi case does an protection for nal work of authorship any idea, extend to procedure, process, system, operation, method of concept, principle, discovery, regardless of the form in described, which it explained, illustrated, or embodied such
581 history, light legislative terpreted in this section literary copyright protection extends to an author’s form but permits by free use others of the ideas and information Rep. pp. 93-983, author No. 107-108 communicates. See S. (1974) preclude using (“Copyright does not others from per by the author’s work. It ideas or information revealed expressed literary . . . in which the author tains to the form concepts”); Rep. pp. R. 56-57 94-1476, intellectual H. No. (1976) (same); States, Times v. 403 New York Co. United (“[T]he (1971) concurring) 713, 726, J., U. S. n. (Brennan, only expression copyright protect the form of laws, course, protection expressed”). This limitation of not the ideas any literary precludes in facts, claim of form including narration. historical supposed that the framers of the Con-
“It is not to be Congress promote they empowered ‘to stitution, when by securing progress for arts, and useful of science the exclusive limited times to authors and inventors writings respective right and discoveries’ to their 8), (Const., par. upon one intended to confer I, §8, Art report might happen first to a historic who to be the spread right any period to event the exclusive knowledge News v. Asso- of it.” International Service (1918). 234 Press, 215, ciated 248 U. S. Enterprises, Inc., House, Inc. v. Random Rosemont
Accord, (CA2 1966), 1009 385 U. S. denied, 366 F. 2d 309 cert. 303, (1967). 1 2-158.3 §2.11[A], Nimmer See 102(b). use, 17 C. § The doctrines of fair see U. S. work.” 17 U. C. S. Nimmer, § similarity, Copyright 13.05 see 3 M. and substantial (1984) (hereinafter compet- Nimmer), to accommodate these also function Gorman, Fancy? Implica- Fact or ing generally considerations. (1982). Copyright Copyright, tions for 29 J. Soc. in statements token, may claim By the same an author in the author’s work. See Suid v. reported verbatim made others and (DC 1980); Rokeach v. Avco Magazine, Newsweek Supp. 503 F. 1978). (SDNY USPQ 155, 161 Embassy Corp., Pictures *36 582 “promotion requires of science and the useful arts” this scope
limit on the of an author’s control. Were an author prevent subsequent using concepts, able to authors from ideas, or facts contained his or her work, the creative process would wither and scholars would be forced into un- productive replication predecessors. of the research of their Hoehling City Studios, Inc., v. Universal 618 F. 2d (CA2 1980). copyright 979 This 972, limitation on also en- important sures consonance with our most First Amendment Scripps-Howard Broadcasting values. Zacchini v. Co., Cf. (1977). “profound 562, 577, 433 U. S. n. 13 Our national principle public commitment to the that debate on issues wide-open,” should be uninhibited, robust, and New York (1964), Sullivan, Times Co. v. 376 U. 254, S. leaves no statutory monopoly room for a over information and ideas. public quiet, “The arena of debate would be if indeed, a politician speeches philosopher could his or a his monopoly they treatises and thus obtain on the ideas con- (1971) Runge, (Douglas, tained.” Lee v. 404 U. S. certiorari). dissenting J., from denial of A broad dissemina- principles, tion of ideas, and factual information is crucial to citizenry the robust debate and informed that are “the self-government.” essence of v. Louisiana, Garrison (1964). every permitted U. S. 74-75 And citizen must be freely advocacy particular to marshal ideas and facts political choices.4 infringement
It follows that must be on based taking literary opposed form, as to the ideas or informa copyrighted Deciding tion contained in a work. whether an infringing appropriation literary form has occurred is diffi cult for at least two reasons. First, the distinction between perverse It prohibit government would be from limiting the financial upon political speaker may draw, see FEC v. National resources which a Committee, Conservative Political Action (1985), 470 U. per S. 480 but to government mit to limit the intellectual upon speaker resources which that may draw.
583 prac literary or ideas is and information often elusive in form infringement must be based on a Second, tice. substantial literary equally appropriation of form. This determination is challenging. infringement surprisingly, Not the test for has precise general, though, inquiry In defied formulation.5 proceeds along closely how author two axes: has the second particular language tracked the first author’s and structure of presentation; language how much of the first and author’s appropriated.6 has the second author and structure present infringement analysis ap- case the must be plied biography a historical in which the author has chroni- cled events of his White House tenure and commented on unique perspective. Apart those events from his from virtually quotations, all of the material The Nation’s arti- indirectly Mr. cle recounted Ford’s factual narrative of the resignation pardon, latter-day Nixon his reflections on Presidency, perceptions some events of his and his of the personalities ante, at the center of those at events. See 570-579. No can be claimed in this information qua Infringement information. would thus have to be based
5
protection
literary
proscribe
merely
more than
The
form must
appropriation
portions of an author’s work.
word-for-word
of substantial
plagiarist
infringement by
could avoid
immaterial variations.
Otherwise
(CA2 1930).
Corp.,
Pictures
Nichols v. Universal
119,
45 F. 2d
121
The
prohibition
copying is,
step beyond the narrow and clear
of wholesale
how
Compare Hoehling
ever,
uncertain terrain.
v.
a venture onto somewhat
Studios, Inc.,
(CA2
1980),
City
Wain
Universal
618 F. 2d
974
(CA2
Transcript Corp.,
on too close information.7 sion of this Language. Much The Nation
The of the information con- paraphrase veyed all, not in the form of but took the was synopsis lengthy in the Ford manu- form of discussions summary presentation, script.8 In course of this Appeals ap nor the dissent the Court of Neither the District Court way. Despite recognizing that material proached question in this this *38 “totality “per copyrightable,” the District held that the of was not se Court together collected with Mr. Ford’s reflections these facts and memoranda Supp. 1067, protected by . . laws.” 557 F. 1072-1073 . (SDNY 1983). Appeals signaled approval in the Court of dissent (CA21983) (Meskill, J., dissenting). F. 213-214 approach. this 2d rejected. Copyright protection approach must be cannot be ex Such an whenever that information is interwoven tended to factual information reflections) protected expression (purportedly this case Mr. Ford’s with history expressive “totality.” biography Most works of blend into an way. speculative commentary and reflective or in this factual narrative Precluding presented squared so cannot subsequent use facts be intent, specific legislative expressed in House and both Senate Reports, “[cjopyright preclude using others from the . . . does 93-983, Rep. No. information revealed the author’s work.” See S. (1976). 94-1476, pp. pp. (1974); Rep. H. R. No. 56-57 The core 107-108 purposes copyright would thwarted and serious First Amendment be monopoly a concerns would arise. An author could obtain on narration of simply by being the first to discuss them in reflective or historical events analytical manner. manuscript expends example, For the Ford several hundred words discussing Reagan and Ronald in the relations between Mr. Ford weeks Republican of 1976: before Convention convention, my Reagan’s “About a month before the aides had met with party unity. they representatives to discuss the need for And had reached agreement. balloting, At the end of the Presidential the winner would an congratulate opponent waging his for fine go to the loser’s hotel suite and they appear press urge campaign. Together, would at a conference and rally Republicans put aside their differences and behind the ticket. all to only way City hope victory. Kansas with a That was the we could leave going win, Cheney I appeared When it was to Sears contacted and refined that I the scenario. He insisted on two conditions. The first was had to alone; camp in Reagan see there could be no aides from either the room. I him Secondly, under no circumstances should offer the nomination to be closely resembled sentences that Nation did use occasional original manuscript.9 language lin- But these in the Ford infringe- guistic an are insufficient to constitute similarities leeway given must be First, reasons. some ment for three convey seeking subsequent facts because those authors to to express “wishing in a factual work the ideas contained to in the along that he wasn’t interested Reagan had said all Vice President. it, he If I talk him of would he said. tried to out job. He had meant what it would down, embarrassing because me and that would be have to turn relayed Cheney those refusing help to the GOP. When appear that he was Reagan’s I would need me, agreed go along I to with them. to conditions anger him or his stupid It campaign. in the fall would be assistance at this moment. followers hotel, just my arrival at the Californian’s I before “Later was told Dart, say him to urged had advisors, Justin one of his closest businessman mate, anything he’d running Regardless of my if I him to yes asked be duty accept the num- before, insisted, patriotic it Dart had was his said But at the Finally, according Dart, Reagan agreed. post. had two ber I aware me. Had been time, development mentioned this new no one say I can’t conversation, him? would I have chosen Dart-Reagan divisive, probably challenge that it would thought his had been sure —I *39 some of the additionally, I resented campaign; in the fall party hurt the policies— saying my me and Administration’s things about that he’d been App. him.” 628-629. certainly but I would have considered following sentence: “Ford in the encapsulated The Nation this discussion have selected that, misunderstanding, might he a also writes but for Id., In most other Reagan running mate.” at 627. Ronald as his 1976 in The Nation’s article instances, single paragraph a sentence or brief manuscript that runs conveys gist in the Ford similarly of a discussion B to Defendant’s generally of Addendum hundreds words. See into the id., Memorandum, at 627-704. Post-Trial 9 reads: “Ford told example, point at one The Nation’s article For was Mich., day luncheon in the President Jackson, audience later Ante, of portion The impeachable at 572. guilty an offense.” not es ... Thad Cochran “Representative stated: manuscript discussed Ford During luncheon at the Hilton Hotel. Jackson corted me to a luncheon impeach guilty an repeated I the President was not my assertion The in places language In several other App. able offense.” 649. degree. original expression to a similar parallels Nation’s article Mr. Ford’s ante, Compare 570-579, App. at 627-704. 586 only range expression.”
often can choose from
a narrow
Landsberg
Players, Inc.,
v. Scrabble Crossword Game
(CA9 1984).
Second,
F. 2d
much of what The Na-
paraphrased
Harper
in
tion
was material which
& Row could
copyright.10
paraphrased
Third,
claim no
The Nation
noth-
totality
ing approximating
single paragraph,
of a
much
chapter
less a
or the work as a whole. At most The Nation
paraphrased disparate
original.
isolated sentences from the
finding
infringement
paraphrase generally
A
based on
requires
tracking
far
more close and substantial
original language
g.,
in
See,
than occurred
this case.
e.
Wainwright
Transcript Corp.,
Securities Inc. v. Wall Street
(CA2 1977).
Mr. Ford’s information The Nation is drawn from scattered sections of the Ford work and does appear sequence presented in which Mr. Ford it.11 pardon roughly Some of The Nation’s discussion of the does manuscript presents track the order in in- which the Ford pardon. respect similarity, formation about the With to this present Mr. has however, Ford done no more than the facts paraphrasing Often the was of statements others had made to Mr. Ford. ante, (“He said”). g., E. resign, Haig at 571 could ‘ride it out’ or he could ante, generally See at No can 570-579, be asserted the verba representation § tim of such statements of others. 17 U. S. C. 102. See Magazine, v. Newsweek Suid Rokeach v. Avco Em Supp., 148; 503 F. bassy Corp., Pictures USPQ, paraphrased at 161. Other material came from Government documents in which no interest can be example, quotes claimed. For the article from a prepared by memorandum Ruth, Jr., Henry capacity in his Watergate Special S. official as assistant to ante, Prosecutor Leon Jaworski. See at 573. This document ais work of the United States Government. 17 U. S. C. 105. 11According Harper to an exhibit & Row introduced at pages trial the *40 manuscript correspond the Ford to consecutive sections of the article 607-608, 401, 44, 496, 1, 2-3, 4, 8, 7, 4-5, 5, 5-6, 8, 14, 15, are as follows: 16, 16, 18, 19, 21, 236, 246, 249, 266, 248, 238-239, 239, 243, 245, 246, 250, 250-251, 251, 256, 252, 253, 254, 298, 299, 46, 494, 537, 155-156, 216, 415, 416, 416, 53-54, App. E-1 57. See to Pet. for Cert. to E-41.
587 chronologically infringement and cannot claim when a sub- sequent similarly presents history author facts of chronological suggest manner. it Also, is difficult to bodily appropriate 2,000-word article could the structure of a 200,000-word book. Most of what Mr. Ford created, history simply repre- most of the he recounted, were sented The Nation’s article.12 quoting When The Nation was not Mr. Ford, therefore, its convey efforts to the historical information the Ford manu- script closely substantially did not so track Mr. Ford’s language appropriation and structure as to constitute an literary form.
II The only quotation Nation is thus liable in if the infringed any Harper of 300 words & Row’s exclusive rights explicitly under 106 of the Act. Section 106 makes grant rights “[sjubject through exclusive to section 107 §106. 118.” 17 U. S. C. Section 107 states: “Notwith- standing provisions copy- of section 106, the fair use of a righted purposes work ... such as criticism, comment, reporting, teaching (including multiple copies news for class- use), scholarship infringement room or research, is not an copyright.” question here is whether The Nation’s 12 “copied” In one sense The Nation Mr. Ford’s selection of facts because reported only on it those facts Mr. Ford presentation. chose to select for tracking But this of a historian’s generally selection of facts sup should not Myers ply finding infringement. the basis for a Express Mail & See v. (SDNY 1919) (L. Co., J.). Copyright Hand, Off. Bull. To hold oth require duplicate erwise would a second author to be the research of the first author so as to avoid reliance on the first judgment author’s as to what “ facts are particularly pertinent. just ‘It is such effort that wasted proscription against designed of ideas and facts . . . are Studios, Inc., prevent.’” City Miller v. Universal 650 F. 2d (CA5 1981), quoting House, Inc., Enterprises, Rosemont Inc. v. Random (CA2 1966). 366 F. 2d Gorman, Copyright Soc., 29 J. 594-595. *41 meaning noninfringing the use within
quotation fair awas §of 107. approach rigid, bright-line fair
Congress “eschewed City Studios, Sony Corp. America v. Universal use.” of “equita- apply an A n. 31. court is 449, at Inc., S., 464 U. guided analysis, four id., reason” rule of ble statutorily prescribed factors: including
“(1) purpose use, the character of and the non- nature or is for use is of a commercial such whether purposes; profit educational
“(2) copyrighted work; of the the nature “(3) portion substantiality used of the amount and the copyrighted whole; and work as a in relation to the “(4) potential upon market for the of the use the effect §107. copyrighted C. 17 U. S. work.” value of the necessarily determinants the exclusive are not These factors mechanistically fair inquiry resolve and do not the fair use of possible, generally applicable definition “no issues; use raising question its on must be decided the each case id., Rep. also 94-1476, No. at 65. See H. R. facts.” own (“[T]he variety combinations of situations and endless at 66 precludes particular cases that can arise circumstances of statute”); Rep. S. in the of exact rules the formulation (1975). statutory p. do, factors how- The 94-473, No. undertaking guidance courts provide substantial ever, inquiry. fact-specific proper history, particularly the respect memoirs to a work
With analysis statutorily prescribed cannot public official,the of a copy- attention to properly constant conducted without be literary protected form right’s distinction between crucial question must unprotected ideas. information or literary subsequent always author’s use of be: Was form purpose meaning light a fair use within copyrighted the amount work, nature of use, literary literary use effect of this and the used, form original? market for on the value of or form Limiting inquiry propriety subsequent to the of a literary easy author’s use of the owner’s form is not history. against only in the case of a work of Protection appropriation literary substantial form does not ensure his- *42 torians a return commensurate with the full value of their literary labors. The in form contained works like “A Time only part goes Heal” reflects a of the labor that into the book. collecting, sifting, organizing, reflecting It is the labor of and predominates history in the creation of works of such as produces primarily this one. The value this labor lies in the particular information and ideas in revealed, the through collocation of words which the information and ideas expressed. Copyright protect are thus does not that which history, in often of most value of work and courts must tendency reject resist the the fair use defense on the basis feeling history deprived of their that an author of has been of subsequent the full value of ing A his her labor. author’s tak- piratical of information and ideas is in no sense because copyright simply any property law does not create in interest information and ideas. urge compensate subsequent
The use of information perhaps inequity and ideas is understandable. An seems to lurk the idea that much of the fruit of the historian’s labor may compensation. be used without This, however, is not byproduct statutory some unforeseen of a scheme intended primarily imagination. to ensure a return for works of the Congress copyright made the affirmative choice that the apply way: “Copyright preclude laws should in this does not using others from the ideas or information revealed the pertains literary author’s work. It . . . form in which expressed concepts.” Rep. the author intellectual H. R. No. at 56-57. 94-1476, This distinction is at the essence copyright. “engine of The laws serve as the expression,” only statutory ante, of free at 558, when the monopoly does not choke off multifarious indirect uses and consequent broad dissemination of information and ideas. progress integrity To ensure the of arts and sciences and the must not values, First Amendment ideas and information proprietary right.13 freighted claims of be analysis my judgment, fair use has fallen to Court’s temptation a minimal to find violation based on compensation literary provide in order to for the use of form history. appropriation of information from a work of The literary distinguish information and form failure to between analysis permeates every aspect of the fair use Court’s wrong Application result this case. leads Court to statutorily prescribed analysis with attention to literary information and form leads to distinction between meaning straightforward finding fair use within §107. purpose quoting Purpose the Use. The Nation’s manuscript was, Ford as the Court acknowl- words
edges, reporting. ante, 561. The news Ford work important information about events of recent his- contained tory. principals, Mr. Two Ford and General Alexander publication Haig, in were at the time of The Nation’s 1979 widely thought Presidency. to be candidates for the That objectively reported the information in the Ford The Nation independent commentary way manuscript in no di- without reporting it A minishes the conclusion that was news. newsstory precisely typical in from an editorial differs newsworthy straightforward presents in it information unelaborated manner. Nor does the source of the informa- any report. tion render The Nation’s article less a news manuscripts, are unsolicited, Often books and solicited 13 congressional scope limitation on the does not This history. sig results in production threaten the That this limitation any apparent. economic incentives is far from In nificant diminution of research and event noneconomic incentives motivate much historical writ great ing. example, public For former officials often have incentive to history story.” product of the And much is the of academic “tell their side scholarship. Perhaps importantly, urge preserve past most as old as humankind.
591 reports. g., subject E. of news New York Times matter (1971). Frequently States, 403 Co. v. U. S. 713 United unpublished report.14 manuscripts are at the time of the news reporting prime example 107lists news aas of fair Section expression. pur- use of another’s Like criticism and all other § Congress explicitly approved reporting poses in news 107, § public; language informs the of 107 makes clear Congress spread knowledge saw the and information strongest justification properly appro- as the for a limited priation expression. Appeals The Court of was therefore purpose correct to conclude that the of The Nation’s use— quotations in dissemination of the information contained of Mr. Ford’s work—furthered the interest. 723 F. (CA2 1983). light explicit 195, 2d 207-208 con- gressional purpose endorsement for which Ford’s 107, literary strongly finding form was borrowed favors a of fair use. validity reporting pur- concedes the Court of the news 15
pose quickly against purportedly but then offsets it three countervailing First, considerations. the Court asserts that publishes profit, publication The Nation its because (article g., E. Times, 2, 1984, C20, Aug. p. N. Y. col. 5 about revela forthcoming biography Spellman); Times, tions in of Cardinal N. Y. Dec. (article A18, 10, 1981, p. forthcoming col. about revelations book (article Erlichman); Times, 29, 1976, Sept. p. N. Y. col. about John forthcoming autobiography Nixon); revelations of President N. Y. (article Times, 27, 1976, p. concerning col. about revelations Mar. *44 resignation forthcoming Days); in N. Y. President Nixon’s book The Final (article 23, 1976, concerning Times, Sept. p. col. 1 about revelations Dean). forthcoming President Ford in book Blind Ambition John rejects argument legitimate properly 15 The the this is not Court making journalistic have no business such evaluations of news. Courts ante, properly rejects argument The the quality. at 561. Court also See See ibid. News nonproductive. reporting, which encom that this use is selection, organization, passes journalistic judgment respect to Sony ideas, certainly productive is a use. presentation of facts See Studios, Inc., City S., Corp. America Universal v. 464 U. at 478-479 (Blackmun, J., dissenting). the Ford is a unfair commercial use. quotes presumptively Second, Court claims that The Nation’s stated desire to create a event” “news an signaled illegitimate purpose supplanting owner’s of first right publication. Ante, at Third, 562-563. The Nation acted in bad faith, Court because its editor claims, a “knowingly exploited pur- Ante, loined at 563. manuscript.” reliance on Court’s the commercial nature of The Nation’s use as “a factor that tends separate to weigh against ante, a of fair finding use,” 562, is in the inappropriate § context. uses present Many lists as ex- paradigmatic of fair use, including criticism, comment, and news amples reporting, are generally conducted for in profit this country, a fact of which Congress was obviously aware when it en- § acted 107. To negate any fair argument favoring use based on news reporting or criticism because that or criti- reporting cism was for published profit is to render meaningless congressional imprimatur placed on such uses.16
Nor should The Nation’s intent a create “news event” weigh against a of fair finding use. Such a rule, like the
16 support To this claimthe Court refers language Sony to some Corp. City Studios, Inc., America v. Universal supra, to the effect that of “every copyrighted commercialuse of presumptively material is an unfair exploitation.” Id., ante, at 451. Properly at 562. understood, this language support position does not the Court’s in this case. The Court Sony Corp. dealt recording with a use—video copyrighted television programs personal Congress expressed use—about which policy had no judgment. When court Congress evaluates uses has not specifically addressed, presumption in Sony Corp. articulated appropriate congressional effectuate the instruction to consider “whether such use is of 107(1). § a commercial Also, nature.” 17 U. C.S. the Court made that statement in evaluating the course of appropriated use that entirety copyrighted of the work in a form identical to original; that of the presumption may articulated well have apply been intended to takings But, under these light circumstances. specificlanguage presumption this appropriately employed is not negate weight Con gress explicitly gave reporting justification to news as a for limited use expression. of another’s *45 reporting against presumption news automatic
Court’s congressional the of profit, validation the would undermine reputa- purpose. earns its reporting A news business news prompt readership, through consistent its and therefore tion, “scooping” through rivals. publication often news—and of distinc- importantly, maintain the failure to the Court’s More analy- literary the colors form information tion between legitimate Harper point. had no & Row Because sis of this Ford ideas the information and the interest every right to be the manuscript, to seek had The Nation public. The ideas to the facts and to these first disclose sought only first to suggests the be that Nation record manuscript. The Nation’s Ford reveal the information competition scooping under purpose should stated bearing negative claim of on the have no those circumstances would reliance on this factor Indeed the Court’s fair use. the standard than distaste for little more amount to seem to seeking publish news. practice journalistic to be the first putative faith is bad on The Nation’s reliance The Court’s The Nation that equally court has found No unwarranted. illegally manuscript in violation possessed the Ford Harper all common-law any Row; & interest of common-law in this or dismissed action have been abandoned causes of manuscript had if the at 199-201. Even 2d, F. case. 723 imputes nothing “purloined” in this record someone, been in this culpability record of the The Nation.17 On basis use The Nation made can be said is that case, the most manuscript knowing owner the contents of the use. would not sanction Associates, Time Inc. Bernard Geis cry 17 Thiscase is a from v. far support (SDNY 1968), only cites Supp. case the Court
F. pub case faith. purported of The bad consideration Nation’s offices negatives film from claiming fair stolen personally use had lisher photo stolen published representations then graphic Time despite these circumstances. images. And the court fair use found graphic Ibid. *46 points thievery.
At several the Court brands this conduct g., judgment unsupport- See, ante, e. at 563. This is perhaps by unspoken able, and is influenced the Court’s tend- ency infringement in taking this case find based on the of respect appropriation information and ideas. With to the quoted of information and ideas other than the words, The perfectly legitimate despite copyright Nation’s use was the objection owner’s because no can be in claimed quotation ideas or information. Whether the of 300 words infringement § meaning was an aor fair use within the of 107 question produced sharp is a close that has in division both Appeals. Copyright this Court and the Court of If the Act prohibit were held not to the use, then the owner objecting. would have had no basis in law for The Nation’s objection significant awareness of an that has a chance of being adjudged unfounded cannot amount to bad faith. Im- puting knowledge bad faith on the basis of no more than objection, impermissibly of prejudices such an the Court inquiry impedes proper arrival at the conclusion that “purpose” statutorily prescribed analysis factor of the strongly finding favors a of fair use this case. Copyrighted Sony The Nature Corp. Work. City America v. Studios, Universal Inc., we stated that “not copyrights fungible” ... all “[c]opying are and that a news may stronger copying broadcast have a claim to fair use than picture.” a motion 464 U. at S., 455, n. 40. These state 107(2) principle, § suggested ments reflect of the Act, scope generally that the of fair use broader when expression source of borrowed is a factual or historical work. “[In 3See Nimmer 13.05[A][2], 13-73—13-74. formati manuscript, readily onal works,” like Ford “that lend productive protected.” themselves to use are others, less Sony Corp. City America v. Universal Studios, Inc., dissenting). S.,U. at 496-497 (Blackmun, J., Thus the statutory finding second factor also favors a fair use this case. recog- acknowledges generally “[t]he law
The Court greater factual than works need to disseminate works nizes fantasy,” “[s]ome ante, at and that of fiction or necessary arguably quotations memoir are from the briefer convey the force ibid. But the Court discounts facts,” ground “[t]he primarily fact on the consideration, of this unpublished element of its ‘na- is a crucial that a work is point the Court introduces Ante, at 564.18 At this ture.’” categorical presumption against analysis of this case into (“Under ordinary prepublication ante, at 555 fair use. See *47 right to control the first the author’s circumstances, outweigh expression appearance will of his undisseminated use”). a claim of fair categorical presumption on its own is unwarranted
This congressional intent.19 Whether terms and unfaithful to 18 part appropriation in the discounts this factor because The Court also work, Nation, expressive elements of the ex “focusing The on the most of Ante, necessary disseminate the facts.” at 564. Whatever ceeds that use, properly analyzed it propriety of this view of The Nation’s is the substantiality statutory of the third fair use factor —the amount and under whole, 17 copyrighted in the work as a expression the taken relation to 107(3) analyzed opinion. § will as such this U. S. C. be —and 19 the supporting intent lays specific congressional The Court claim to ante, 553, quoting at against prepublication fair use. See presumption ante, 551, 4, argu 94-473, (1975); n. 553-554. The Rep. p. No. 64 at S. congressional unpersuasive on intent is for three reasons. ment based First, clearly prepublication the allows for fair use. the face of statute § publication, rights specifi- 106 the Act right of first like all other of owners, 107,” cally grants copyright explicitly “subject made to section statutory § provision. fair use 17 U. S. C. 106. See Second, Report relies language from the Senate on which the Court ante, heavily, 553, weight see the Court simply at will not bear the so merely suggests prepublication it. The places Report on Senate fair use purposes generally for classroom constitute photocopying will not unpublished confidentiality has an the author interest in the of when publish. Given work, author’s choice” not to evidenced “deliberate use, it would specifically fair prepublication of 106 allows for that the face circumscribed Congress the intent of to draw from this be unfaithful to use particular prepublication will impair any interest Court identifies as encompassed within the of first right ante, see at publication, 552-555,20 will on depend the nature work, copyrighted of timing prepublication use, the amount of used, and expression the medium which the sec- author ond communicates. Also, certain uses be toler- might Corp. Sony able for some but not for purposes others. City supra, America v. Studios, Inc., Universal 490, at n. 40. The Court is ambiguous as to it whether relies on the force of the presumption against fair use or prepublication an analysis and effect this purpose particular use. Compare ante, ante, at 552-555, 564. To the extent the Court relies on the it presumption, presumes intolerable suggestion Report presumption against any Senate blanket amount any prepublication purpose irrespective fair use of the effect of editorial, use privacy, on the owner’s or economic interests.
Third, congressional adoption the Court’s on reliance of the common law unpersuasive. up is also The common law not set did the monolithic prepublication See, barrier fair use that the Court wishes it did. g., House, Inc., e. Estate Hemingway v. Random 462, 53 Misc. 2d (S. Cty.), aff’d, N. Y. S. 2d 51 App. Ct. N. Y. Div. 2d 285 N. Y. S. (1st 1967), Dept. grounds, 2d 568 Jud. aff’d on other 23 N. Y. 2d (1968). N. E. 2d 250 general principle The statements of the Court cites *48 ante, support contrary 551, its representation law, of the common see at 4, by are unsupported n. themselves judicial reference to substantial au thority. Congressional endorsement of the common law of fair use should any rigid adoption presumption against read as of prepublieation be If way, use. read that the broad the Copyright statement that Act was incorporate intended to common law given would in effect be the force nullifying Congress’ repeated methodological prescription of that definite inappropriate fact-specific analysis required. are and is rules The broad adopting approach language the common-law to fair use is best understood fact-specificity case-by-case as an endorsement of the essential meth odology of of the common fair use. law right publication particularly of first weighty 20 TheCourt finds the (i) important privacy it encompasses
because three interests: interest (ii) public all; at an editorial expression in whether make in interest ensuring groomed public work it being control over the while dis (iii) semination; capturing the full economic interest an remunerative Ante, public. 552-555. potential at of initial release to inter- of the economic the usurpation
injury
particular
—in
test for prepubli-
than a
litmus
on no more
quick
est21—based
instructed us
has plainly
Because “Congress
cation timing.
of inter-
balancing
for a sensitive
fair use
calls
analysis
never
the fair use
could
inquiry
held last Term that
ests,” we
a “two dimensional” categori-
the basis of such
be resolved on
City
Sony Corp. America v. Universal
cal
See
approach.
Studios, Inc.,
n. 40
(rejecting categorical
464 U.
at
S.,
use”).
“productive
requirement
to evaluate the facts
the Court purports
To the extent
The quota-
relies on sheer
case,
analysis
speculation.
this
its
no
the manuscript
infringed
privacy
tion of 300 words from
in the
This author intended
words
interest of Mr. Ford.
his Presidency.
statement about
public
be
manuscript
choice on the
part
is the “deliberate
therefore,
Lacking,
a con-
confidential,
to keep expression
owner”
copyright
on which
passage
that the Senate Report
sideration
—in
ante, at
reliance,
recognized
see
great
the Court places
553—
fair use for unpublished
behind narrowing
as the impetus
94-473,
No.
at 64. See also Nimmer
works.
S. Rep.
(“[T]he
of the fair use doctrine is
at 13-73
13.05[A],
scope
works
unpublished
narrower
considerably
respect
owners”) (em-
held
their
which are
confidential
added).
own-
the Court
as the
depicts
What
phasis
ante, at
is not a
interest,
see
“confidentiality”
privacy
er’s
inter-
Rather,
at all.
it is no more than an economic
interest
full
value of initial release of information to
est
capturing
apocalyptic prophesy
Perhaps
inappropriate
most
is the Court’s
any prepublication
reporting
“effectively
use for news
will
permitting
copyright protection
destroy any expectation of
the work of a
Ante,
impact
prepublication
purposes
of a
figure.”
557.
use for
obviously vary
A
reporting
news
will
with the circumstances.
claim of
fig
reporting
plagiarism,
should not be a
leaf for substantial
see
news
Wainwright
Transcript Corp.,
Inc. v. Wall
Securities
Street
602-603. too is that The Nation’s use interfered with the owner’s interest in editorial manuscript. The Nation control of made use of the Ford quotes publication. on the eve of official only prepublication
Thus the interest The Nation’s use might infringed have is the in owner’s interest capturing By full economicvalue of initial release. con- sidering component this interest as a of the “nature” of copyrighted analysis work, the Court’s deflates The Na- sup- tion’s claim that the informational nature of the work ports any inquiry potential fair use without into the actual or particular prepublication economicharm of The Nation’s use. question properly For reason, this of economic harm is statutory considered under fourth factor—the effect on copyrighted the value of or market for the 17 U. work, S. C. §107(4) presumed not as a element of the “nature” of —and copyright. Substantiality The Amount and the Portion Used. of respect questions judgments More difficult arise with importance about the to this case of the amount and sub- stantiality quotations quoted only of the used. The Nation approximately manuscript 300 words from a of more than quotes pas- 200,000 and the words, are drawn from isolated sages disparate judgment in sections of the work. The taking quantitatively this was F. “infinitesimal,” 2d, dispose inquiry, 209, does not of the An however. evalua- substantiality qualitative required. tion of in terms is also quoted Much of the material Mr. was Ford’s matter-of-fact representation of the words of others conversations with quotations “arguably necessary adequately him; such are convey expressive the facts,” ante, at 563, and are not rich in Beyond quotations portion quoted content. these poignant expression material was drawn from the most manuscript; particular the Ford The Nation made use of examples expression six of Mr. Ford’s of his reflections on *50 perceptions fair use The about President Nixon.22 events quotations propriety inquiry on the use of these turns the of admittedly strong expressive content. with expressive the “in of the value of The Court holds that view infringing excerpts key third work,” this and their role support statutory finding fair use.23 To disfavors a of factor quotes 22 These are: six “ (1) prompted my as an individual hadn’t decision ‘[C]ompassion Nixon monkey my Rather, get ‘to off back he did it because he had at all.’ ” Ante, way or one the other.’ 572-573. (2) Clemente,’ and ‘it spend quietly “Nixon ‘would not the time San anything virtually impossible for me to direct attention on would be Ante, at 573. else.’” “ (3) law. public policy precedence took over a rule of T learned that often law, public Although that man should above respected I the tenet no be Watergate quickly I us as put Nixon —and policy demanded —behind Ante, possible.’” at 575. as “ (4) Watergate trip and the everybody ‘If I it would remind made ” Ibid. say compassion.’ I lacked pardon. people If I didn’t would (5) in his nose flat on his There were tubes “He was stretched out back. arms, with legs his chest and to machines mouth, and wires led from and ashen, thought I off. face and I orange lights that blinked on and His was Ibid. anyone to death.” had never seen closer (6) man,’ Ford, ‘he in other terribly proud “‘A writes detested weakness felt to speak disparagingly those whom he him people. I’d often heard (Curiously, press feel weak. he didn’t that the was expedient. and be soft they like sensed, knew didn’t his adversaries. He Reporters, he were disdain.)’ reciprocal pride per- ‘His him, responded . . . and he ability his to tell the difference had overcome contempt for weakness sonal reality.’” out touch with wrong.’ . . . ‘Nixon was right and between Ante, at 578. from quotations emphasis on the fact that the places some Court article. portion The Nation’s a substantial the Ford work constituted evaluating The Nation’s appear thus be Superficially, the Court would substantiality of ex in relation to the amount and quotation of 300 words The stat work as a whole. in relation to the second author’s pression used substantiality portion inquiry into “the amount ute directs the 107(3) whole,” to work as a 17 U. S. C. copyrighted relation used added). little implies, it matters statutory directive As the (emphasis purports rely conclusion, this Court on District findings Court factual that The had Nation taken “the heart (SDNY 1983). Supp. of the book.” 557 F. This misplaced, appear reliance is and would to be another result distinguish failure to Court’s between information and *51 literary finding, form. When the District Court made this it evaluating quoted was not the words at issue but here the “totality” commentary of the information and reflective majority the Ibid. The Ford work. vast of the what Dis- trict Court considered the heart of the Ford work, therefore, consisted of ideas and information The free Nation was may qualitative use. that, It well be as a most of matter, the manuscript value of the did lie in the and information ideas appropriation The Nation used. But of the of “heart” the manuscript copyright analysis in this is sense irrelevant to preclude because not does a second author’s use of information and ideas. tacitly
Perhaps recognizing that reliance on the District finding unjustifiable, goes Court is the Court on to evaluate independently quality expression appearing the in The portions “[t]he Nation’s article. The Court states that actu- ally quoted Navasky among were selected Mr. as the most powerful passages.” Ante, at 565. On the basis of no more perhaps than observation, this also from inference quotes important fact that the were to The Nation’s article,24 appropri- the Court adheres to its conclusionthat The Nation manuscript. ated the heart of the Ford whether the second is 1- 100-percent appropriated author’s use expres- taking if expression sion of that had no adverse copy- effect on the Sony Corp. righted City Studios, America v. Universal work. of Inc., (1984) (100% taken). expression 417 U. S. of I presume, there- fore, expression that the Court considered the role of the “in infringing only work” indirect qualitative expression as evidence of the value of the taken in way, point this case. If this read dovetails with Court’s major argument appropriated The Nation the most valuable sentences of the work. 23, supra. See n. quotes respect particular least with to the six
At Ford’s about President Mr. observations reflections agree I The Nation Nixon, the Court’s conclusion that appropriated literary quality. I form of do some substantial expression agree, substantiality however, that the clearly inappropriate excessive or to The Nation’s taken was purpose. reporting news quotations these been used the context of a critical
Had question review of the there little work, book Ford is meaning such á use would be fair use within the substantiality Act. The amount and of the use—in both qualitative certainly quantitative and terms —would have appropriate purpose of such It is difficult been a use. report quoted the use of these in a news see how words appropriate. acknowledges “[E]ven less The Court as much: might qualify quotations as in a substantial a fair use review published speech a news account that had work or of a *52 public.” to re- ante, been delivered the at 564. With spect pardon insights the for the into to motivation and the psyche example, of the fallen for Mr. Ford’s President, the perceptions are so emotion and reflections laden with understanding judgments deeply personal is value that full immeasurably portion reproducing of limited enhanced a importance after work, own The of the Mr. Ford’s words. only previously but in fact not revelation of unknown all, lies thoughts, motivations, ideas, also revelation national fears of Presidents at a critical our two moment history. question easily resolved, it is is Thus, while the not gratu- say quotations was difficult to that use of the six the reporting purpose. itous to relation the news Conceding quotation appropriate in substantial even report published seem to the work, news would Court quotation inappropriate in agree clearly that this was For reporting purpose. to The news relation Nation’s again the substan- the determinative factor is Court, pre- tiality inappropriate to the use was in relation publication timing really objection of that That is use. an copyrighted the effect of this use on the for work, market properly and is evaluated as such. correctly
The on the The Market. Court notes that Effect undoubtedly single the effect on the market “is most im- portant citing Ante, of fair at element use.” 3 Nimmer properly §13.05[A], 13-76, at and the Court focuses on adversely Harper whether The Nation’s use affected & Row’s merely potential serialization and not the market for sales Unfortunately, Ante, the Ford itself. work 566-567. distinguish the Court’s failure between the use of informa- appropriation literary badly tion and the form skews its analysis factor. of this purposes analysis,
For of fair use holds, Court it is containing quotes sufficient that the entire article eroded potential the serialization market of Mr. Ante, Ford’s work. at 567. the basis of On Time’s cancellation of serialization its agreement, “[rjarely copy- the Court finds that case of will a right infringement present such clear-cut evidence of actual damage.” by using Ibid. the Court essence, finds that story quotes pardon, some in a about the Nixon The Nation “competed prepublication a share of market ex- cerpts” planned excerpt ante, at 568, because Time from chapters pardon. about the publication indisputably precipitated
The Nation’s Time’s eventual cancellation. But that does not mean that quoted injury the 300 Nation’s use of words caused this Harper Wholly apart quoted & Row. from these words, The published significant Nation information and ideas from the *53 publication manuscript. If Ford it was this of information, publication quotations, and not few that caused abrogate agreement, Time to its serialization then whatever negative effect on the serialization that effect market, wholly product legitimate activity. was the Appeals specifically The Court of held that “the evidence finding support very it does not that was the limited use of expression per print se which led to Time’sdecision to ex- cerpts.” fully agree holding. 2d, 723 F. at 208. I with this competed If competition The Nation Time, was not excerpts literary for a share of the market in form but a share of the market the new information in the Ford work. literary represents That the and information, not the form, most perhaps of the real value of the work in this case is best by following provision revealed in the contract between Harper & Row and Mr. Ford: acknowledges rights
“Author that the value of the granted publisher substantially hereunder would be diminished unique Author’s discussion of the previously information not disclosed about Author’s personal career and life which will be included in the agrees Work, and Author that Author will endeavor not any any to disseminate such information in- media, cluding newspaper magazine television, radio and prior publication interviews to the first of the work here- App. under.” 484. Harper sought
The contract thus makes clear that & Row substantially monopolizing benefit from the initial revelation only of information known to Ford. convey
Because The Nation was the first to the informa perhaps Harper tion in case, this it did take from & Row publisher sought garner some of the value that for itself through arrangement the contractual with Ford and the Harper every right license to Time. & Row had to seek to monopolize potential through revenue from market con arrangements right up copyright tractual but it has no to set competition in as a shield from that market because protect every right information. does not The Nation had publish first to seek to be the that information.25 principle reliance on the infringer mingles Court’s who “an infringing noninfringing consequences,’” elements ‘must abide the ante, (citation omitted), infringement is misconceived. Once of a § 106 exclusive right shown, entirely appropriate has been it is to shift to *54 the Interests.
Balancing Once the distinction between information form literary is made clear, statutorily prescribed of process weighing four fair use fac- statutory tors discussed above leads to a naturally conclusion that The Nation’s limited use of form literary was not an infringement. Both the of purpose the use and the nature of the copyrighted work favor strongly the fair use defense here. The Nation Mr. appropriated Ford’s expression for a purpose Congress §107 authorized in expressly and borrowed from a work whose nature justifies some appropriation to facilitate the spread information. The factor least perhaps favorable to the claim of fair use is the amount and substan- tiality the expression used. Without question, a portion of the expression appropriated was among the most poignant in the Ford But manuscript. it is difficult to conclude that this was excessive in taking relation to the news reporting In purpose. any event, because the appropriation of literary form —as opposed the use of information —was not shown to injure Harper & Row’s economic interest, any uncertainty to the respect of the propriety amount of expression borrowed should be resolved in favor of a of fair finding use.26 In of the light circumscribed scope quotation Nation’s article and the undoubted of the validity purpose infringer the burden of showing that infringement did not cause all question damages shown. But the in this case is particu- whether this infringed any § lar use rights. Harper may & Row have shown actual damage flowing from The information, Nation’s use of they but have not shown damage actual flowing infringement from an of a 106 exclusive right. 26Had The Nation sought justify a more appropriation substantial expression on a reporting rationale, news might different pre case be substantiality sented. The claim taking certainly would dilute the of need to use the first author’s exact particular words to convey a thought or sentiment. if Even the claim of need plausible, equities were would have to favor the owner in prevent order to erosion of virtually all copyright protection for public works of former officials. case, this however, the need is manifest and integrity protection for the works of officials is not threatened. *55 motivating quotation, I must conclude that the Court simply adopted exceedingly in has an narrow view of fair use impose liability taking order to for what was essence a unprotected information.
Ill approach exceedingly per to fair The Court’s narrow use Harper monopolize holding mits information. This & Row to important property rights “effect[s] an extension of and a corresponding knowledge curtailment the free use of Press, of ideas.” International News Service v. Associated (Brandeis, dissenting). S., 248 U. at 263 The Court has J., perhaps ability advanced the of the historian —or at least the public recently capture officialwho has left office—to the full possession. economic value of information in his or her But only by risking does so Court the robust debate of self-government.” issues that is the “essence of v. Garrison providing Louisiana, 379 at 74-75. The Nation was S.,U. imposes grist liability for that robust debate. Court upon The Nation for no other reason than that The Nation being provide succeeded the first to certain information to public. I dissent.