Intellectual Property, Pages 440–447

Harper & Row v. Nation Enterprises

United States Court of Appeals for the Ninth Circuit, 1985

Facts:

Gerald Ford wrote an autobiography, published by the plaintiff. Before the book's release, someone secretly brought a copy of Ford's book to the defendant, who quickly wrote an article about the part of the book concerning Ford's pardon of Nixon, comprising quotes, paraphrases, and facts therefrom.

Issue:

Was defendant's use of quotes from Ford's book fair use?

Defendant's Argument:

Defendant's use of quotes from Ford's book was fair use for the purpose of news reporting.

Procedural History:

  • District court rejected defendant's fair use argument and awarded plaintiff $12,500 of actual damages.

  • Court of appeals reversed, finding that the "politically significant" nature of the subject matter was not intended to be impeded by the Copyright Act.

Rule:

Reasoning:

All the factors go in plaintiff's favor:

  1. Defendant's use was primarily commercial.
  2. While factual works should be disseminated, the fact that Ford's book was unpublished is a critical element of its nature. Defendant's article was timed to be the first to break the news.
  3. While only 13% of defendant's article was direct quotes and the quotes made up even less than that of the book, they comprised the "heart" of the book—all "the most interesting and moving parts of the entire manuscript."
  4. This has some of the clear-cut evidence of actual damage ever in a copyright case. Time canceled its contract with plaintiff because of defendant beating them to the story, and defendant publishing all the most interesting parts of the book will obviously hurt its sales.

Holding:

No, this is not fair sue. Reversed and remanded.

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