Harper & Row, Publishers, Inc., Et Al. v. Nation Enterprises Et Al.

471 U.S. 539 (1985)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

President Ford made a deal with P to publish his as yet unwritten memoirs. They were to contain 'significant hitherto unpublished material' concerning the Watergate crisis, the pardon of President Nixon and 'Mr. Ford's reflections on this period of history, and the morality and personalities involved.' The agreement gave P the exclusive right to license prepublication excerpts, known in the trade as 'first serial rights.' P negotiated a prepublication licensing agreement with Time, for $25,000 in two payments each $12,500 on signing and publication. Exclusivity was an important consideration, and P instituted procedures designed to maintain the confidentiality of the manuscript. Two weeks before the Time Article an unidentified person secretly brought a copy of the Ford manuscript to the editor of D, a political commentary magazine. The editor knew that his possession of the manuscript was not authorized and that the manuscript must be returned quickly to his 'source' to avoid discovery. The editor then hastily put together what he believed was 'a real hot news story' composed of quotes, paraphrases, and facts drawn exclusively from the manuscript. He attempted no independent commentary, research or criticism because of the need for speed if he was to 'make news' by '[publishing] in advance of publication of the Ford book.' As a result of D's article, Time canceled its piece and refused to pay the remaining $ 12,500. P sued D alleging conversion, tortious interference with contract, and violations of the Copyright Act. The District Court rejected D's argument that D's piece was a 'fair use' sanctioned by § 107 of the Act. The District Court held that it was 'the totality of all the facts and memoranda collected together with Ford's reflections that made them of value to D, [and] this . . . totality . . . is protected by the copyright laws.' P got $12,500 actual damages.

The Court of Appeals reversed. They noted that copyright attaches to expression, not facts or ideas. Examining the four factors enumerated in § 107, the majority found the purpose of the article was 'news reporting,' the original work was essentially factual in nature, the 300 words appropriated were insubstantial in relation to the 2,250-word piece, and the impact on the market for the original was minimal as 'the evidence [did] not support a finding that it was the very limited use of expression per se which led to Time's decision not to print the excerpt.' P appealed.