Harper & Row, Publishers v. Nation Enterprises
471 U.S. 539 (1985)
President Ford wrote a book
about Watergate and sold it to Harper & Row. People were so excited
to read the book that Harper & Row was able to sell the exclusive
right to print an excerpt to Time Magazine for $25k.
Somehow, a guy named Navasky
who owned a magazine called The Nation got a unauthorized copy of the
excerpt and published it in his magazine.
Time canceled their deal
with Harper & Row.
Harper & Row sued Navasky
for copyright infringement.
Navasky argued that he was
protected by the fair use
provision (17 U.S.C. §107) because Ford was a public
figure, and his reasons for pardoning Nixon were of vital interest.
After all, it was such a
hot topic that Navasky could only be doing a public good by
disseminating it as broadly as possible...
Plus Navasky only used 300
words out of Ford 200k word manuscript.
The Trial Court found for
Harper & Row. Navasky appealed.
The Appellate Court reversed.
Harper & Row appealed.
The US Supreme Court reversed
and found for Harper & Row.
The US Supreme Court used
the four-factor test of §107.
Is the purpose and
character of the use commercial or non-commercial?
The Court found that
Navasky's goal was to scoop competitors and sell more magazines.
That's a commercial use.
It was not 'news' as
The nature of the copyrighted
While the Court agreed
with Navasky that the law generally recognizes a greater need to
disseminate factual works than fiction the fact it was unpublished gave
Ford more rights than if it had already been disseminated.
The author gets the right
of first publication.
The amount of the original
The Court found that
Navasky's excerpt was substantial enough, and he couldn't defend his
plagiarism by pointing out how much of the book he didn't steal.
The effect on the potential
There was actual evidence
of harm in this case because Time cancelled their contract in response
to Navasky's acts.
Navasky argued that the 1st
Amendment protected him because Ford
was a public figure. However, the Court found that if you bought
Navasky's logic there would be no way for a public figure to hold a
copyright, and that wasn't good for public discourse.
Note that in this case, the US
Supreme Court seemed to be giving a lot of weight to the fact that Ford's
manuscript was unpublished, and that Navasky obtained a copy through some
nefarious means. However, those are not statutory factors for determining
fair use under §107.