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 Navasky argued.
      • The nature of the copyrighted work.
        • 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with Navasky that the law generally recognizes a greater need to disseminate factual works than fiction the fact it was unpublished gave Ford more rights than if it had already been disseminated.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 work used.
        • 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 market.
        • 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.