Harper & Row v. Nation Enterprises
Encyclopedia
Harper & Row v. Nation Enterprises, 471 U.S. 539
(1985), was a United States Supreme Court
decision that determined that fair use
is not a defense to the appropriation of work by a famous political figure simply because of the public interest in learning of that political figure's account of an historic event.
had written a memoir including an account of his decision to pardon Richard Nixon
. Ford had licensed his publication rights to Harper & Row, which had contracted for excerpts of the memoir to be printed in TIME
. Instead, The Nation
magazine published 300 to 400 words of verbatim quotes from the 500-page book without the permission of Ford, Harper & Row, or Time Magazine. Based on this prior publication, Time withdrew from the contract (as it was permitted to by a clause therein), and Harper & Row filed a lawsuit
against The Nation for copyright infringement
. The Nation asserted as a defense that Ford was a public figure, and his reasons for pardoning Nixon were of vital interest, and that appropriation in such circumstances should qualify as a fair use.
A Federal trial judge ruled in favor of Harper & Row and awarded damages. The 2nd Circuit Court of Appeals reversed the ruling, finding that the Nation's actions in quoting the memoirs were protected by fair use privilege. Harper & Row appealed this ruling to the Supreme Court.
noted that the right of first publication is a particularly strong right, and held that there was no 'public figure' exception to copyright protection, asserting that "the promise of copyright would be an empty one if it could be avoided merely by dubbing the infringement a fair use 'news report' of the book." The court applied the traditional four factor test to determine if the use was fair, and made the following findings:
Justice Brennan dissented, joined by Justice White
and Justice Marshall
. They felt that the importance of "the robust debate of public issues" outweighed the limited power of copyright ownership.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1985), was a United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
decision that determined that fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
is not a defense to the appropriation of work by a famous political figure simply because of the public interest in learning of that political figure's account of an historic event.
Facts
Former President Gerald FordGerald Ford
Gerald Rudolph "Jerry" Ford, Jr. was the 38th President of the United States, serving from 1974 to 1977, and the 40th Vice President of the United States serving from 1973 to 1974...
had written a memoir including an account of his decision to pardon Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
. Ford had licensed his publication rights to Harper & Row, which had contracted for excerpts of the memoir to be printed in TIME
Time (magazine)
Time is an American news magazine. A European edition is published from London. Time Europe covers the Middle East, Africa and, since 2003, Latin America. An Asian edition is based in Hong Kong...
. Instead, The Nation
The Nation
The Nation is the oldest continuously published weekly magazine in the United States. The periodical, devoted to politics and culture, is self-described as "the flagship of the left." Founded on July 6, 1865, It is published by The Nation Company, L.P., at 33 Irving Place, New York City.The Nation...
magazine published 300 to 400 words of verbatim quotes from the 500-page book without the permission of Ford, Harper & Row, or Time Magazine. Based on this prior publication, Time withdrew from the contract (as it was permitted to by a clause therein), and Harper & Row filed a lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
against The Nation for copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
. The Nation asserted as a defense that Ford was a public figure, and his reasons for pardoning Nixon were of vital interest, and that appropriation in such circumstances should qualify as a fair use.
A Federal trial judge ruled in favor of Harper & Row and awarded damages. The 2nd Circuit Court of Appeals reversed the ruling, finding that the Nation's actions in quoting the memoirs were protected by fair use privilege. Harper & Row appealed this ruling to the Supreme Court.
Issue
The issue before the Court was whether a fair use existed where the purported infringer published a public figure’s unpublished work on an important public event.Opinion of the Court
The Court, in an opinion by Justice O'ConnorSandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
noted that the right of first publication is a particularly strong right, and held that there was no 'public figure' exception to copyright protection, asserting that "the promise of copyright would be an empty one if it could be avoided merely by dubbing the infringement a fair use 'news report' of the book." The court applied the traditional four factor test to determine if the use was fair, and made the following findings:
- The purpose or character of the use was commercial (to scoop a competitor), meaning that The Nation's use was not a good faith use of Fair Use in simply reporting news.
- The nature of the copyrighted work was informative.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole was great, as it constituted a substantial portion of the infringer's work. The Court noted that the infringer could not defend plagiarism by pointing to how much else they could have plagiarized, but did not.
- The effect of the use on the potential market for the value of the copyrighted work was also great, because there was an actual harm – the cancelled contract.
Justice Brennan dissented, joined by Justice White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
and Justice Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
. They felt that the importance of "the robust debate of public issues" outweighed the limited power of copyright ownership.