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Keywords

contractcopyrightlease

contractcopyrightrespondent

Related Cases

Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588, 53 USLW 4562, 225 U.S.P.Q. 1073, 1985 Copr.L.Dec. P 25,793, 11 Media L. Rep. 1969

Facts

In 1977, former President Gerald R. Ford contracted with Harper & Row and Reader's Digest to publish his memoirs, granting them exclusive rights to prepublication excerpts. Shortly before the scheduled release of an article by Time Magazine, The Nation Magazine published an unauthorized article using verbatim quotes from Ford's unpublished manuscript, which led Time to cancel its article and refuse payment. Harper & Row and Reader's Digest sued The Nation for copyright infringement, claiming that the unauthorized publication violated their rights as copyright holders.

In 1977, former President Ford contracted with petitioners to publish his as yet unwritten memoirs. The agreement gave petitioners the exclusive first serial right to license prepublication excerpts. Two years later, as the memoirs were nearing completion, petitioners, as the copyright holders, negotiated a prepublication licensing agreement with Time Magazine under which Time agreed to pay $25,000 ($12,500 in advance and the balance at publication) in exchange for the right to excerpt 7,500 words from Mr. Ford's account of his pardon of former President Nixon.

Issue

Whether The Nation's unauthorized publication of verbatim quotes from President Ford's unpublished memoirs constituted 'fair use' under the Copyright Revision Act.

Rule

Analysis

The court analyzed the four factors of fair use. The Nation's use was commercial and intended to supplant the copyright holders' right of first publication, which weighed against fair use. The unpublished nature of Ford's memoirs was a significant factor, as it indicated that the author's right to control the first public appearance of his work outweighed the claim of fair use. The court found that the verbatim quotes used were not insubstantial in their qualitative impact, as they represented Ford's distinctive expression and were central to the article's content. Additionally, the publication adversely affected the potential market for the copyrighted work, as evidenced by Time's cancellation of its article.

Conclusion

The Supreme Court held that The Nation's unauthorized publication was not a fair use under the Copyright Revision Act, reversing the lower court's decision.

Who won?

Harper & Row Publishers, Inc. and Reader's Digest prevailed in this case as the Supreme Court ruled in their favor, emphasizing the importance of the right of first publication and the protection of unpublished works under copyright law. The court underscored that the unauthorized use of verbatim excerpts from Ford's memoirs not only infringed on their copyright but also undermined the commercial value of their exclusive rights.

Petitioners established a prima facie case of actual damage that respondents failed to rebut.

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