Case name: Harper & Row, Publishers, Inc. v. Nation Enterprises

Opinion filed: 1985-05-20

Docket No.: 83-1632

Citations:
• 85 L. Ed. 2d 588
• 105 S. Ct. 2218
• 471 U.S. 539
• 1985 U.S. LEXIS 17

Case holding summaries:
• "Under ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use."
• quotes played a central role in infringing work and made up thirteen percent of it
• 300 words copied word-for-word from a 450-page book constituted infringement
• “scope of fair use is narrower with respect to unpublished works”
• “[In general,] the fair use doctrine has always precluded a use that ‘supersede[s] the use of the original’ ”
• First Amendment does not protect copyright infringement
• "The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy."
• "[f]air use is a mixed question of law and fact"
• Knowing exploitation of purloined manuscript not compatible with "good faith" and "fair dealings" underpinnings of fair use doctrine.
• fair use implied when "promoting progress of science and the useful arts"
• “[In general,] the fair use doctrine has always precluded a use that ‘supersede[s] the use of the original’ ”
• “scope of fair use is narrower with respect to unpublished works”
• noting that the scope of fair use is narrower with respect to unpublished works because the author's right to control the first public appearance of his work weighs against the use of his work before its release
• magazine's appropriation of right of first publication of former President Ford's unpublished manuscript not a fair use
• defendant's conduct was for the intended purpose of supplanting a competitor's right to be the first to publish President Ford's memoirs
• relying on the history and practice of copyright fair-use when statutory provision reflected the "intent of Congress to codify the common-law doctrine"
• explaining that the fourth factor is concerned with “use that supplants any part of the normal market for a copyrighted work” (quoting S. Rep. No. 94-473, at 65 (1975)
• explaining that the four statutory fair use factors are nonexclusive
• “[E]ven substantial quotations might qualify as fair use in a review of a published work or a news account of a speech” but not in a scoop of a soon-to-be-published memoir
• "The fact that an article arguably is 'news' and therefore a productive use is simply one factor in a fair use analysis."
• material taken by defendants was dramatic focal point of plaintiff's work and taking was therefore substantial
• emphasizing the importance rather than the amount of material copied
• "Courts should be chary of deciding what is and what is not news."
• explaining that copyright law protects expression, not ideas
• explaining that the fourth factor is concerned with “use that supplants any part of the normal market for a copyrighted work” (quoting S. Rep. No. 94-473, at 65 (1975)
• explaining that the four statutory fair use factors are nonexclusive
• “[E]ven substantial quotations might qualify as fair use in a review of a published work or a news account of a speech” but not in a scoop of a soon-to- be-published memoir
• “ copyright is intended to increase and not to impede the harvest of knowledge”
• “ copyright is intended to increase and not to impede the harvest of knowledge”
• although “ fair use traditionally was not recognized [at common law] as a defense to charges o f copying from an author’s as yet unpublished works . . . [t]his absolute rule . . was tempered in practice by the equitable nature of the fair use doctnne”
• “ No author may copyright his ideas or the facts he narrates.”
• rejecting First Amendment defense to copyright infringement action against magazine for printing unauthorized presidential memoir excerpts
• defining fair use as "privilege ... to use the copyrighted material in a reasonable manner without [the copyright owner's] consent"
• noting that copyright law fosters free expression by protecting the right of authors to receive compensation for their work
• "No author may copyright his ideas or the facts he narrates."
• The fact that "a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use."
• "[E]ven substantial quotations might qualify as fair use in a review of a published work or a news account of a speech" but not in a scoop of a soon-to-be-published memoir
• noting that the fourth fair use factor is concerned with “use that supplants any part of the normal market for a copy- righted work”
• "the fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material."
• "The fact that an article is originally `news' and therefore a productive use is simply one factor in a fair use analysis."
• the 300 copyrighted words appropriated to the Times article were an insubstantial portion of the work but "`essentially the heart of the book.'"
• "`no generally applicable definition [of fair use] is possible, and each case raising the question must be decided on its own facts'" (citation omitted); Wright v. Warner Books, Inc., 953 F.2d 731, 740 (2d Cir.1991
• “The copyright is limited to those aspects of the work—termed ‘expression’—that display the stamp of the author’s originality.”
• “The crux of the profit/non-profit distinction is . . . whether the [vendor] stands to profit from exploitation of the copyrighted material without paying the customary price.”
• “The excerpts were employed as featured episodes in a story about the Nixon pardon—precisely the use petitioners had licensed to Time”
• “[T]he doctrine is an equitable rule of reason . . . .”
• “scope of fair use is narrower with respect to unpublished works”
• “[In general,] the fair use doctrine has always precluded a use that ‘supersede[s] the use of the original’ ”
• "The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy."
• "The crux of the profit/nonprofit distinction is ... whether the user stands to profit from exploitation of the copyrighted material without paying the customary price."
• "The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors."
• "the fair use doctrine was predicated on the author's implied consent to 'reasonable and customary' use"
• fourth factor concerned with "use that supplants any part of the normal market for a copyrighted work"
• finding verbatim republication of key portions of Gerald Ford‟s memoirs not to be fair use
• “rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors”
• First Amendment protections are “embodied in the Copyright Act’s distinction between copyrightable expres- sion and uncopyrightable facts and ideas,” and in the “latitude for scholarship and comment” safeguarded by the fair use defense
• rejecting First Amendment defense to copyright infringement action against magazine for printing unau- thorized presidential memoir excerpts
• “[C]ourts should be chary of deciding what is and what is not news.” (citation omitted)
• "[C]opyright is intended to increase and not to impede the harvest of knowledge."
• noting "the First Amendment protections already embodied in the Copyright Act's distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use"
• “No author may copyright his ideas or the facts he narrates.”
• unpublished work; actual damage of $12,500 shown, and infringing work intended to scoop publication of copyrighted work
• noting that in rebuttal defendant may "show that this damage would have occurred [anyway] had there been no taking of copyrighted expression"
• setting baseline for injury in an infringement action as reve- nue lost as a result of the infringement
• finding verbatim republication of key portions of Gerald Ford‟s memoirs not to be fair use
• "The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy."
• noting the "obvious benefit to author and public alike of assuring authors the leisure to develop their ideas free from fear of expropriation" prior to publication
• distinguishing unpublished works from out-of-print works because although "the work is unavailable, this is the result of a deliberate choice on the part of the copyright owner"
• "Publication of an author's expression before he has authorized its dissemination seriously infringes the author's right to decide when and whether it will be made public, a factor not present in fair use of published works."
• noting the defendant's effect and intended purpose of "supplanting" the copyright owner's commercial rights
• explaining that the fourth factor is concerned with “use that supplants any part of the normal market for a copyrighted work” (quoting S. Rep. No. 94-473, at 65 (1975)
• “[E]ven substantial quotations might qualify as fair use in a review of a published work or a news account of a speech” but not in a scoop of a soon-to-be-published memoir
• holding that knowing exploitation of purloined manuscript is not compatible with "good faith" and "fair dealings" underpinnings of fair use doctrine
• observing that § 107 of the Copyright Act, articulating the elements of the fair use defense, "`restate[s] [not changes] pre-existing judicial doctrine'"
• explaining that the four statutory fair use factors are nonexclusive
• "`no plagiarist can excuse the wrong by showing how much of his work he did not pirate.'"
• "[N]o author may copyright facts or ideas. The copyright is limited to those aspects of the worktermed `expression'that display the stamp of the author's originality."
• this factor is "undoubtedly the single most important element of fair use"
• holding that if a new work “supersede[s] the use of the original,” it is probably not a fair use
• fair use presupposes good faith and fair dealing
• “In view of the expressive value of the excerpts and their key role in the infringing work, we cannot agree with the Second Circuit that the ‘magazine took a meager, indeed an infinitesimal amount of Ford’s original language.’” (citation omitted)
• contrasting soon-to-be-published memoir with published speech
• copyright owner's rights exclude facts and ideas, and fair use
• relying on the Nimmer 29 1 treatise
• “The law generally recognizes a greater need to dissemi- nate factual works than works of fiction or fantasy.”
• finding the tortious interference claim preempted because unauthorized publication was the basis for the violation and the elements of awareness and intentional interference pled in the tortious interference claim did not render the claim different from a copyright claim
• affording lesser protection to the autobiographical memoirs of President Gerald Ford
• stating that appeals court may decide fair use where “district court has found facts sufficient to evaluate each of the statutory factors”
• stating that “fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material, both to the originator and to the plagiarist who seeks to profit from marketing someone else’s copyrighted expression”
• explaining that the court's inquiry must also take into account the harm to the market for derivative works
• explaining that a "fair return" is all that is intended by the Copyright Act
• "[T]he fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material, both to the originator and to the plagiarist who seeks to profit from marketing someone else's copyrighted expression."
• use of quotations constituting 300 words of President Ford's entire memoirs amounted to copying of "the heart of the book" that weighed against fair use
• “[F]reedom of thought and expression ‘includes both the right to speak freely and the right to refrain from speaking at all.’” (quoting Wooley v. Maynard, 430 U.S. 705, 714 (1977))
• emphasizing significance rather than quantity of material copied
• "[T]he scope of fair use is narrower with respect to unpublished works."
• stating "an appellate court . . . may conclude as a matter of law that the challenged use does not qualify as a fair use of the copyrighted work"
• discussing the need to "assure contributors to the store of knowledge a fair return for their labors," on the one hand, and the need to avoid "imped[ing] the harvest of knowledge" available for public use, on the other hand
• "'The monopoly created by copyright thus rewards the individual author in order to benefit the public.'"
• relying on congressional rejection of proposed amendments
• "The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy."
• "The crux of the profit/nonprofit distinction is ... whether the user stands to profit from exploitation of the copyrighted material without paying the customary price."
• "The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors."
• "the fair use doctrine was predicated on the author's implied consent to 'reasonable and customary' use"
• noting that in the context of fair use, a copyright holder must establish “with reasonable probability the existence of a causal connection between the infringement and a loss of revenue”
• fourth factor concerned with "use that supplants any part of the normal market for a copyrighted work"
• "No author may copyright his ideas or the facts he narrates."
• discussing copyright, the fair use doctrine, and the First Amendment
• explaining that copyright protection extends only to “those aspects of the work—termed ‘expression’—that display the stamp of the [plaintiff’s] originality”
• "There is necessarily, and within suitably defined areas, a [First Amendment] freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect" (internal quotation marks omitted)
• 300 words copied from plaintiff's 450-page book constituted infringement
• “The fact that a work is unpublished is a critical element of its ‘nature.’”
• "The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy."
• “By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”
• unfair to scoop key excerpts of unpublished manuscript without author's consent
• four factors "not meant to be exclusive"
• finding substantial similarity where defendant's work excerpted 300-400 words including some uncopyrightable material
• noting that an appellate court need not remand “[w]here the district court has found facts sufficient to evaluate each of the statutory factors” for fair use
• finding that The Nation’s use of verbatim quotes from upcoming Gerald Ford memoir regarding Watergate scandal was not fair use even though material related to matter of public importance
• “[T]he unpublished nature of a work is a key . . . factor tending to negate a defense of fair use.”
• “The fact that the words the author has chosen to clothe his narrative may of themselves be ‘newsworthy’ is not an independent justification for unauthorized copying of the author’s expression prior to publication.”
• weighing this factor against finding fair use because the alleged infringer “took what was essentially the heart of the book”
• recognizing, along with freedom to express one's views publicly, " 'concomitant freedom not to speak publicly' "
• "[C]opyright does not prevent subsequent users from copying from a prior author's work those constituent elements that are not original ... as long as such use does not appropriate the author's original contributions."
• distinguishing first amendment right of privacy in choice of words from suppression of facts
• recognizing, along with the freedom to express one’s views publicly, the “concomitant freedom not to speak publicly” (quoting Est. of Hemingway v. Random House, Inc., 244 N.E.2d 250, 255 (N.Y. 1968))
• “scope of fair use is narrower with respect to unpublished works”
• “scope of fair use is narrower with respect to unpublished works”
• “[In general,] the fair use doctrine has always precluded a use that ‘supersede[s] the use of the original’ ”
• “[In general,] the fair use doctrine has always precluded a use that ‘supersede[s] the use of the original’ ”
• copyright does not protect facts
• “[T]he doctrine is an equitable rule of reason . . . .”
• holding that "the scope of fair use is narrower with respect to unpublished works"

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