On past Presidents’ Days, we have discussed the critical roles in the development of U.S. copyright law played by Abraham Lincoln (who extended copyright protection to photographs) and George Washington (whose correspondence was at the center of the dispute that gave rise to the fair use doctrine). This year, it’s Gerald Ford’s turn to ascend to our Mount Rushmore of Copyright. Not an obvious choice? Maybe, but we are putting him up there for two reasons. First, Ford signed into law the Copyright Act of 1976, the foundation for modern copyright law and the economic engine for big chunks of the entertainment industry.
Second, Ford’s memoirs, just like George Washington’s correspondence, played an important part in the development of the fair use doctrine. The case was Harper & Row v. Nation Enterprises, decided by the Supreme Court in 1985.
The Purloined Manuscript
Shortly after Ford left office in 1977, he signed a deal with Harper & Row to publish his memoirs. Ford spent the next two years working on them, and the publisher planned a splashy release in April 1979. As part of its PR push, Harper & Row sold to Time Magazine the right to publish the first exclusive excerpt of the work just before the book went on sale. The excerpt Time planned to publish was what everyone was waiting for: Ford’s explanation for his pardon of President Richard Nixon on the heels of Watergate.
But then something very Watergate-ish happened. An undisclosed source obtained a copy of the Ford manuscript and secretly presented it to Victor Navasky, editor of The Nation magazine. Navasky was told that the manuscript must be returned within twenty-four hours so that the source could avoid detection, so he spent the night copying down as much as he could. Navasky knew that if he wanted to scoop Time, he would not have the luxury of doing any additional research, so he relied on his notes of the memoirs to compose a 2,250-word article. About 300 of those words were copyrightable expression by Ford lifted directly from the manuscript, including Ford’s version of the events surrounding the pardon. Navasky’s article also bragged about the fact that The Nation was scooping Time.
Time pulled out of its no-longer-exclusive deal with Harper & Row. Harper & Row then filed a copyright infringement suit against The Nation in the Southern District of New York.
The Fair Use Analysis
The Nation essentially admitted to copying from the manuscript, so the main issue for the Court to decide was whether Navasky’s article was a fair use of Ford’s memoirs pursuant to 17 U.S.C. § 107, which provides that:
The fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting . . . or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature . .
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used . . . and
(4) the effect of the use upon the potential market . . .
The Nation argued that it was engaged in news reporting, one of the protected activities enumerated by the statute. The District Court disagreed, finding that the details in the memoirs (and by extension in Navasky’s article) had already been reported publicly in various places, and therefore the article was not truly “news.” The Second Circuit reversed, holding that the fair use doctrine protected the publication of such important matters of state, and cautioning that it was not the District Court’s role to determine “what is and what is not news.”
Harper & Row appealed to the Supreme Court. Justice Sandra Day O’Connor’s majority opinion reversed the Second Circuit and held that there was no fair use. As to the first factor (the purpose and character of the use), the Court agreed with the Second Circuit that The Nation was engaged in “news reporting.” However, Justice O’Connor wrote that this otherwise protected purpose was offset by the for-profit nature of the publication and by the “bad faith” of Navasky, who knew that the manuscript was “purloined” and who was trying to “exploit the headline value of [the] infringement” by making The Nation’s procurement of the unpublished manuscript part of the story.
What really turned the tide against The Nation, however, was the second factor (the nature of the copyrighted work). The Court agreed with The Nation that the factual nature of the material weighed in favor of fair use. However, Justice O’Connor wrote that the non-fiction nature of the work was far less important than the fact that it was unpublished. The Court held that fair use is predicated on an author’s implied consent to “reasonable and customary” uses of a work, and what is “reasonable and customary” for a published work is not the same as what is “reasonable and customary” for an unpublished work. Here, the Court held, it was not reasonable and customary to deprive the author of his right of first publication, and his choice as to when and where to first publish. Therefore, the fact that work was unpublished was a “highly relevant” factor weighing against fair use.
Was too much weight given to publication?
In dissent, Justice William Brennan argued that the majority gave too little weight to the public importance of the information and way too much weight to the unpublished nature of the manuscript. Brennan argued that, since the right to be the first publisher of a work was something bought and sold on the open market, whether a work was published or not should be considered under the fourth factor (market harm). Here, however, the Court also made publication status the determinative component of the second factor, and an important consideration in the first factor. In other words, the majority was allowing the unpublished status of the work to overwhelm entire fair use analysis.
Congress apparently shared Justice Brennan’s concerns. A few years later, the legislature amended Section 107, and tempered Harper & Row, by adding the following text:
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.