CITE: 471 U.S. 539
CMON: May 1985
PLAIN: Harper & Row Publishers
DEFND: Nation Enterprises
COURT: United States Supreme Court
DATE: May 20, 1985
HISTORY:
Certiorari to the United States Court of Appeals for the Second Circuit.
723 F.2d 195, reversed and remanded.
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. Shortly before the
Time article's scheduled release, an unauthorized source provided The Nation
Magazine with the unpublished Ford manuscript. Working directly from this
manuscript, an editor of The Nation produced a 2,250-word article, at least
300 to 400 words of which consisted of verbatim quotes of copyrighted
expression taken from the manuscript. It was timed to "scoop" the Time
article. As a result of the publication of The Nation's article, Time canceled
its article and refused to pay the remaining $ 12,500 to petitioners.
Petitioners then brought suit in Federal District Court against respondent
publishers of The Nation, alleging, inter alia, violations of the Copyright
Act (Act). The District Court held that the Ford memoirs were protected by
copyright at the time of The Nation publication and that respondents' use of
the copyrighted material constituted an infringement under the Act, and the
court awarded actual damages of $ 12,500. The Court of Appeals reversed,
holding that The Nation's publication of the 300 to 400 words it identified as
copyrightable expression was sanctioned as a "fair use" of the copyrighted
material under Section 107 of the Act. Section 107 provides that
notwithstanding the provisions of Section 106 giving a copyright owner the
exclusive right to reproduce the copyrighted work and to prepare derivative
works based on the copyrighted work, the fair use of a copyrighted work for
purposes such as comment and news reporting is not an infringement of
copyright. Section 107 further provides that in determining whether the use
was fair the factors to be considered shall include: (1) the purpose and
character of the use; (2) the nature of the copyrighted work; (3) the
substantiality of the portion used in relation to the copyrighted work as
a whole; and (4) the effect on the potential market for or value of the
copyrighted work.
Held: The Nation's article was not a "fair use" sanctioned by Section 107.
Pages 542-569.
(a) In using generous verbatim excerpts of Mr. Ford's unpublished expression
to lend authenticity to its account of the forthcoming memoirs, The Nation
effectively arrogated to itself the right of first publication, an important
marketable subsidiary right. Pages 545-549.
(b) Though the right of first publication, like other rights enumerated in
Section 106, is expressly made subject to the fair use provisions of Section
107, fair use analysis must always be tailored to the individual case. The
nature of the interest at stake is highly relevant to whether a given use
is fair. The unpublished nature of a work is a key, though not necessarily
determinative, factor tending to negate a defense of fair use. And under
ordinary circumstances, the author's right to control the first public
appearance of his undisseminated expression will outweigh a claim of fair
use. Pages 549-555.
(c) In view of the First Amendment's protections embodied in the Act's
distinction between copyrightable expression and uncopyrightable facts and
ideas, and the latitude for scholarship and comment traditionally afforded by
fair use, there is no warrant for expanding, as respondents contend should be
done, the fair use doctrine to what amounts to a public figure exception to
copyright. Whether verbatim copying from a public figure's manuscript in a
given case is or is not fair must be judged according to the traditional
equities of fair use. Pages 555-560.
(d) Taking into account the four factors enumerated in Section 107 as
especially relevant in determining fair use, leads to the conclusion that
the use in question here was not fair. (i) The fact that news reporting
was the general purpose of The Nation's use is simply one factor. While
The Nation had every right to be the first to publish the information, it
went beyond simply reporting uncopyrightable information and actively sought
to exploit the headline value of its infringement, making a "news event"
out of its unauthorized first publication. The fact that the publication
was commercial as opposed to nonprofit is a separate factor tending to
weigh against a finding of fair use. Fair use presupposes good faith.
The Nation's unauthorized use of the undisseminated manuscript had not
merely the incidental effect but the intended purpose of supplanting the
copyright holders' commercially valuable right of first publication. (ii)
While there may be a greater need to disseminate works of fact than works
of fiction, The Nation's taking of copyrighted expression exceeded that
necessary to disseminate the facts and infringed the copyright holders'
interests in confidentiality and creative control over the first public
appearance of the work. (iii) Although the verbatim quotes in question were
an insubstantial portion of the Ford manuscript, they qualitatively embodied
Mr. Ford's distinctive expression and played a key role in the infringing
article. (iv) As to the effect of The Nation's article on the market for
the copyrighted work, Time's cancellation of its projected article and its
refusal to pay $12,500 were the direct effect of the infringing publication.
Once a copyright holder establishes a causal connection between the
infringement and loss of revenue, the burden shifts to the infringer to
show that the damage would have occurred had there been no taking of
copyrighted expression. Petitioners established a prima facie case of
actual damage that respondents failed to rebut. More important, to negate
a claim of fair use it need only be shown that if the challenged use should
become widespread, it would adversely affect the potential market for the
copyrighted work. Here, The Nation's liberal use of verbatim excerpts posed
substantial potential for damage to the marketability of first serialization
rights in the copyrighted work. Pages 560-569.
SUMMARY:
The First Amendment protects speech of uncopyrightable facts and ideas,
but doesn't speech of protect copyrightable expression. (Dissent)
Literary form is protected by copyright, not (historical) information.
JUDGE: JUSTICE O'CONNOR
O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J.,
and BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J.,
filed a dissenting opinion, in which WHITE and MARSHALL, JJ., joined, post,
page 579.
DECISION:
This case requires us to consider to what extent the "fair use" provision of
the Copyright Revision Act of 1976 (hereinafter the Copyright Act), 17 U.S.C.
Section 107, sanctions the unauthorized use of quotations from a public
figure's unpublished manuscript. In March 1979, an undisclosed source provided
The Nation Magazine with the unpublished manuscript of "A Time to Heal: The
Autobiography of Gerald R. Ford". Working directly from the purloined
manuscript, an editor of The Nation produced a short piece entitled "The Ford
Memoirs -- Behind the Nixon Pardon". The piece was timed to "scoop" an article
scheduled shortly to appear in Time Magazine. Time had agreed to purchase the
exclusive right to print prepublication excerpts from the copyright holders,
Harper & Row Publishers, Inc. (hereinafter Harper & Row), and Reader's Digest
Association, Inc. (hereinafter Reader's Digest). As a result of The Nation
article, Time canceled its agreement. Petitioners brought a successful
copyright action against The Nation. On appeal, the Second Circuit reversed
the lower court's finding of infringement, holding that The Nation's act was
sanctioned as a "fair use" of the copyrighted material. We granted certiorari,
467 U.S. 1214 (1984), and we now reverse.
I
In February 1977, shortly after leaving the White House, former President
Gerald R. Ford contracted with petitioners Harper & Row and Reader's Digest,
to publish his as yet unwritten memoirs. The memoirs were to contain
"significant hitherto unpublished material" concerning the Watergate crisis,
Mr. Ford's pardon of former President Nixon and "Mr. Ford's reflections on
this period of history, and the morality and personalities involved." App. to
Pet. for Cert. C-14 -- C-15. In addition to the right to publish the Ford
memoirs in book form, the agreement gave petitioners the exclusive right to
license prepublication excerpts, known in the trade as "first serial rights."
Two years later, as the memoirs were nearing completion, petitioners
negotiated a prepublication licensing agreement with Time, a weekly news
magazine. Time agreed to pay $25,000, $12,500 in advance and an additional
$12,500 at publication, in exchange for the right to excerpt 7,500 words
from Mr. Ford's account of the Nixon pardon. The issue featuring the
excerpts was timed to appear approximately one week before shipment of
the full length book version to bookstores. Exclusivity was an important
consideration; Harper & Row instituted procedures designed to maintain
the confidentiality of the manuscript, and Time retained the right to
renegotiate the second payment should the material appear in print prior
to its release of the excerpts.
Two to three weeks before the Time article's scheduled release, an
unidentified person secretly brought a copy of the Ford manuscript to Victor
Navasky, editor of The Nation, a political commentary magazine. Mr. Navasky
knew that his possession of the manuscript was not authorized and that the
manuscript must be returned quickly to his "source" to avoid discovery. 557
F.Supp. 1067, 1069 (SDNY 1983). He hastily put together what he believed was
"a real hot news story" composed of quotes, paraphrases, and facts drawn
exclusively from the manuscript. Ibid. Mr. Navasky attempted no independent
commentary, research or criticism, in part because of the need for speed
if he was to "make news" by "[publishing] in advance of publication of the
Ford book." App. 416-417. The 2,250-word article, reprinted in the Appendix
to this opinion, appeared on April 3, 1979. As a result of The Nation's
article, Time canceled its piece and refused to pay the remaining $12,500.
Petitioners brought suit in the District Court for the Southern District of
New York, alleging conversion, tortious interference with contract, and
violations of the Copyright Act. After a 6-day bench trial, the District Judge
found that "A Time to Heal" was protected by copyright at the time of The
Nation publication and that respondents' use of the copyrighted material
constituted an infringement under the Copyright Act, sections 106(1), (2),
and (3), protecting respectively the right to reproduce the work, the right to
license preparation of derivative works, and the right of first distribution
of the copyrighted work to the public. App. to Pet. for Cert. C-29 -- C-30.
The District Court rejected respondents' argument that The Nation's piece
was a "fair use" sanctioned by Section 107 of the Act. Though billed as
"hot news", the article contained no new facts. The magazine had
"published its article for profit", taking "the heart" of "a soon-to-be
published" work. This unauthorized use "caused the Time agreement to be
aborted and thus diminished the value of the copyright". 557 F.Supp., at 1072.
Although certain elements of the Ford memoirs, such as historical facts and
memoranda, were not per se copyrightable, the District Court held that it was
"the totality of these facts and memoranda collected together with Ford's
reflections that made them of value to The Nation, [and] this . . . totality .
. . is protected by the copyright laws." Id., at 1072-1073. The court
awarded actual damages of $12,500.
A divided panel of the Court of Appeals for the Second Circuit reversed. The
majority recognized that Mr. Ford's verbatim "reflections" were original
"expression" protected by copyright. But it held that the District Court had
erred in assuming the "coupling [of these reflections] with uncopyrightable
fact transformed that information into a copyrighted 'totality.'" 723 F.2d
195, 205 (1983). The majority noted that copyright attaches to expression, not
facts or ideas. It concluded that, to avoid granting a copyright monopoly over
the facts underlying history and news, "'expression' [in such works must be
confined] to its barest elements -- the ordering and choice of the words
themselves." Id., at 204. Thus similarities between the original and the
challenged work traceable to the copying or paraphrasing of uncopyrightable
material, such as historical facts, memoranda and other public documents,
and quoted remarks of third parties, must be disregarded in evaluating
whether the second author's use was fair or infringing.
"When the uncopyrighted material is stripped away, the article in The Nation
contains, at most, approximately 300 words that are copyrighted. These
remaining paragraphs and scattered phrases are all verbatim quotations from
the memoirs which had not appeared previously in other publications. They
include a short segment of Ford's conversations with Henry Kissinger and
several other individuals. Ford's impressionistic depictions of Nixon, ill
with phlebitis after the resignation and pardon, and of Nixon's character,
constitute the major portion of this material. It is these parts of the
magazine piece on which [the court] must focus in [its] examination of the
question whether there was a 'fair use' of copyrighted matter." Id., at 206.
Examining the four factors enumerated in Section 107, see infra, at 547, n.2,
the majority found the purpose of the article was "news reporting", the
original work was essentially factual in nature, the 300 words appropriated
were insubstantial in relation to the 2,250-word piece, and the impact on
the market for the original was minimal as "the evidence [did] not support
a finding that it was the very limited use of expression per se which led
to Time's decision not to print the excerpt." The Nation's borrowing of
verbatim quotations merely "[lent] authenticity to this politically
significant material . . . complementing the reporting of the facts."
723 F.2d, at 208. The Court of Appeals was especially influenced by the
"politically significant" nature of the subject matter and its conviction
that it is not "the purpose of the Copyright Act to impede that harvest
of knowledge so necessary to a democratic state" or "chill the activities
of the press by forbidding a circumscribed use of copyrighted words".
Id., at 197, 209.
II
We agree with the Court of Appeals that copyright is intended to increase and
not to impede the harvest of knowledge. But we believe the Second Circuit
gave insufficient deference to the scheme established by the Copyright Act
for fostering the original works that provide the seed and substance of
this harvest. The rights conferred by copyright are designed to assure
contributors to the store of knowledge a fair return for their labors.
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).
Article I, Section 8, of the Constitution provides:
"The Congress shall have Power . . . to Promote the Progress of
Science and useful Arts, by securing for limited Times to Authors
and Inventors the exclusive Right to their respective Writings
and Discoveries."
As we noted last Term: "[This] limited grant is a means by which an important
public purpose may be achieved. It is intended to motivate the creative
activity of authors and inventors by the provision of a special reward, and
to allow the public access to the products of their genius after the limited
period of exclusive control has expired." Sony Corp. of America v. Universal
City Studios, Inc., 464 U.S. 417, 429 (1984). "The monopoly created by
copyright thus rewards the individual author in order to benefit the public."
Id., at 477 (dissenting opinion). This principle applies equally to works of
fiction and nonfiction. The book at issue here, for example, was two years in
the making, and began with a contract giving the author's copyright to the
publishers in exchange for their services in producing and marketing the work.
In preparing the book, Mr. Ford drafted essays and word portraits of public
figures and participated in hundreds of taped interviews that were later
distilled to chronicle his personal viewpoint. It is evident that the monopoly
granted by copyright actively served its intended purpose of inducing the
creation of new material of potential historical value.
Section 106 of the Copyright Act confers a bundle of exclusive rights to the
owner of the copyright. {1} Under the Copyright Act, these rights -- to
publish, copy, and distribute the author's work -- vest in the author of an
original work from the time of its creation. Section 106. In practice, the
author commonly sells his rights to publishers who offer royalties in
exchange for their services in producing and marketing the author's work.
The copyright owner's rights, however, are subject to certain statutory
exceptions. Sections 107-118. Among these is Section 107 which codifies
the traditional privilege of other authors to make "fair use" of an earlier
writer's work. {2} In addition, no author may copyright facts or ideas.
Section 102. The copyright is limited to those aspects of the work -- termed
"expression" -- that display the stamp of the author's originality.
Creation of a nonfiction work, even a compilation of pure fact, entails
originality. See, e. g., Schroeder v. William Morrow & Co., 566 F.2d 3 (CA7
1977) (copyright in gardening directory); cf. Burrow-Giles Lithographic Co. v.
Sarony, 111 U.S. 53, 58 (1884) (originator of a photograph may claim copyright
in his work). The copyright holders of "A Time to Heal" complied with the
relevant statutory notice and registration [*548] procedures. See Sections
106, 401, 408; App. to Pet. for Cert. C-20. Thus there is no dispute that
the unpublished manuscript of "A Time to Heal", as a whole, was protected
by Section 106 from unauthorized reproduction. Nor do respondents dispute
that verbatim copying of excerpts of the manuscript's original form of
expression would constitute infringement unless excused as fair use. See
1 M. Nimmer, Copyright Section 2.11[B], p. 2-159 (1984) (hereinafter
Nimmer). Yet copyright does not prevent subsequent users from copying from
a prior author's work those constituent elements that are not original --
for example, quotations borrowed under the rubric of fair use from other
copyrighted works, facts, or materials in the public domain -- as long as
such use does not unfairly appropriate the author's original contributions.
Ibid.; A. Latman, Fair Use of Copyrighted Works (1958), reprinted as Study
No. 14 in Copyright Law Revision Studies Nos. 14-16, prepared for the Senate
Committee on the Judiciary, 86th Cong., 2d Sess., 7 (1960) (hereinafter
Latman). Perhaps the controversy between the lower courts in this case over
copyrightability is more aptly styled a dispute over whether The Nation's
appropriation of unoriginal and uncopyrightable elements encroached on the
originality embodied in the work as a whole. Especially in the realm of
factual narrative, the law is currently unsettled regarding the ways in
which uncopyrightable elements combine with the author's original
contributions to form protected expression. Compare Wainwright Securities
Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (CA2 1977) (protection
accorded author's analysis, structuring of material and marshaling of
facts), with Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (CA2
1980) (limiting protection to ordering and choice of words). See, e. g.,
1 Nimmer Section 2.11[D], at 2-164 -- 2-165.
We need not reach these issues, however, as The Nation has admitted to
lifting verbatim quotes of the author's original language totaling between
300 and 400 words and constituting some 13% of The Nation article. In using
generous verbatim excerpts of Mr. Ford's unpublished manuscript to lend
authenticity to its account of the forthcoming memoirs, The Nation
effectively arrogated to itself the right of first publication, an important
marketable subsidiary right. For the reasons set forth below, we find that
this use of the copyrighted manuscript, even stripped to the verbatim quotes
conceded by The Nation to be copyrightable expression, was not a fair use
within the meaning of the Copyright Act.
III
A
Fair use was traditionally defined as "a privilege in others than the owner of
the copyright to use the copyrighted material in a reasonable manner without
his consent". H. Ball, Law of Copyright and Literary Property 260 (1944)
(hereinafter Ball). The statutory formulation of the defense of fair use
in the Copyright Act reflects the intent of Congress to codify the
common-law doctrine. 3 Nimmer Section 13.05. Section 107 requires a
case-by-case determination whether a particular use is fair, and the
statute notes four nonexclusive factors to be considered. This approach
was "intended to restate the [pre-existing] judicial doctrine of fair use,
not to change, narrow, or enlarge it in any way." H. R. Rep. No. 94-1476,
p. 66 (1976) (hereinafter House Report).
"[The] author's consent to a reasonable use of his copyrighted works
[had] always been implied by the courts as a necessary incident of the
constitutional policy of promoting the progress of science and the useful
arts, since a prohibition of such use would inhibit subsequent writers from
attempting to improve upon prior works and thus . . . frustrate the very ends
sought to be attained." Ball 260. Professor Latman, in a study of the doctrine
of fair use commissioned by Congress for the revision effort, see Sony Corp.
of America v. Universal City Studios, Inc., 464 U.S., at 462-463, n. 9
(dissenting opinion), summarized prior law as turning on the "importance
[*550] of the material copied or performed from the point of view of the
reasonable copyright owner. In other words, would the reasonable copyright
owner have consented to the use?" Latman 15. {3}
As early as 1841, Justice Story gave judicial recognition to the doctrine
in a case that concerned the letters of another former President, George
Washington.
"[A] reviewer may fairly cite largely from the original work, if
his design be really and truly to use the passages for the purposes
of fair and reasonable criticism. On the other hand, it is as clear,
that if he thus cites the most important parts of the work, with a
view, not to criticise, but to supersede the use of the original
work, and substitute the review for it, such a use will be deemed
in law a piracy." Folsom v. Marsh, 9 F. Cas. 342, 344-345 (No. 4,901)
(CC Mass.)
As Justice Story's hypothetical illustrates, the fair use doctrine has always
precluded a use that "[supersedes] the use of the original." Ibid. Accord,
S. Rep. No. 94-473, p. 65 (1975) (hereinafter Senate Report).
Perhaps because the fair use doctrine was predicated on the author's implied
consent to "reasonable and customary" use when he released his work for public
consumption, fair use traditionally was not recognized as a defense to
charges of copying from an author's as yet unpublished works. {4} Under
common-law copyright, "the property of the author . . . in his intellectual
creation [was] absolute until he voluntarily [parted] with the same."
American Tobacco Co. v. Werckmeister, 207 U.S. 284, 299 (1907); 2 Nimmer
Section 8.23, at 8-273. This absolute rule, however, was tempered in
practice by the equitable nature of the fair use doctrine. In a given case,
factors such as implied consent through de facto publication on performance
or dissemination of a work may tip the balance of equities in favor of
prepublication use. See Copyright Law Revision -- Part 2: Discussion and
Comments on Report of the Register of Copyrights on General Revision of
the U.S. Copyright Law, 88th Cong., 1st Sess., 27 (H. R. Comm. Print 1963)
(discussion suggesting works disseminated to the public in a form not
constituting a technical "publication" should nevertheless be subject to
fair use); 3 Nimmer Section 13.05, at 13-62, n. 2. But it has never been
seriously disputed that "the fact that the plaintiff's work is unpublished
. . . is a factor tending to negate the defense of fair use." Ibid.
Publication of an author's expression before he has authorized its
dissemination seriously infringes the author's right to decide when and
whether it will be made public, a factor not present in fair use of
published works. {5} Respondents contend, however, that Congress, in
including first publication among the rights enumerated in Section 106,
which are expressly subject to fair use under Section 107, intended that
fair use would apply in pari materia to published and unpublished works.
The Copyright Act does not support this proposition.
The Copyright Act represents the culmination of a major legislative
reexamination of copyright doctrine. See Mills Music, Inc. v. Snyder, 469 U.S.
153, 159-160 (1985); Sony Corp. of America v. Universal City Studios, Inc.,
464 U.S., at 462-463, n. 9 (dissenting opinion). Among its other innovations,
it eliminated publication "as a dividing line between common law and statutory
protection", House Report, at 129, extending statutory protection to all works
from the time of their creation. It also recognized for the first time a
distinct statutory right of first publication, which had previously been an
element of the common-law protections afforded unpublished works. The Report
of the House Committee on the Judiciary confirms that "Clause (3) of section
106, establishes the exclusive right of publications. . . . Under this
provision the copyright owner would have the right to control the first
public distribution of an authorized copy . . . of his work." Id., at 62.
Though the right of first publication, like the other rights enumerated in
Section 106, is expressly made subject to the fair use provision of Section
107, fair use analysis must always be tailored to the individual case. Id.,
at 65; 3 Nimmer Section 13.05[A]. The nature of the interest at stake is
highly relevant to whether a given use is fair. From the beginning, those
entrusted with the task of revision recognized the "overbalancing reasons
to preserve the common law protection of undisseminated works until the
author or his successor chooses to disclose them." Copyright Law Revision,
Report of the Register of Copyrights on the General Revision of the U.S.
Copyright Law, 87th Cong., 1st Sess., 41 (Comm. Print 1961). The right of
first publication implicates a threshold decision by the author whether and
in what form to release his work. First publication is inherently different
from other Section 106 rights in that only one person can be the first
publisher; as the contract with Time illustrates, the commercial value of
the right lies primarily in exclusivity. Because the potential damage to
the author from judicially enforced "sharing" of the first publication
right with unauthorized users of his manuscript is substantial, the balance
of equities in evaluating such a claim of fair use inevitably shifts.
The Senate Report confirms that Congress intended the unpublished nature of
the work to figure prominently in fair use analysis. In discussing fair use
of photocopied materials in the classroom the Committee Report states:
"A key, though not necessarily determinative, factor in fair use is
whether or not the work is available to the potential user. If the
work is 'out of print' and unavailable for purchase through normal
channels, the user may have more justification for reproducing it. .
. . The applicability of the fair use doctrine to unpublished works
is narrowly limited since, although the work is unavailable, this is
the result of a deliberate choice on the part of the copyright owner.
Under ordinary circumstances, the copyright owner's 'right of first
publication' would outweigh any needs of reproduction for classroom
purposes." Senate Report, at 64.
Although the Committee selected photocopying of classroom materials to
illustrate fair use, it emphasized that "the same general standards of fair
use are applicable to all kinds of uses of copyrighted material." Id., at
65. We find unconvincing respondents' contention that the absence of the
quoted passage from the House Report indicates an intent to abandon the
traditional distinction between fair use of published and unpublished works.
It appears instead that the fair use discussion of photocopying of classroom
materials was omitted from the final Report because educators and publishers
in the interim had negotiated a set of guidelines that rendered the discussion
obsolete. House Report, at 67. The House Report nevertheless incorporates
the discussion by reference, citing to the Senate Report and stating: "The
Committee has reviewed this discussion, and considers it still has value
as an analysis of various aspects of the [fair use] problem." Ibid.
Even if the legislative history were entirely silent, we would be bound to
conclude from Congress' characterization of Section 107 as a "restatement"
that its effect was to preserve existing law concerning fair use of
unpublished works as of other types of protected works and not to "change,
narrow, or enlarge it." Id., at 66. We conclude that the unpublished nature
of a work is "[a] key, though not necessarily determinative, factor" tending
to negate a defense of fair use. Senate Report, at 64. See 3 Nimmer Section
13.05, at 13-62, n. 2; W. Patry, The Fair Use Privilege in Copyright Law
125 (1985) (hereinafter Patry).
We also find unpersuasive respondents' argument that fair use may be made of a
soon-to-be-published manuscript on the ground that the author has demonstrated
he has no interest in nonpublication. This argument assumes that the
unpublished nature of copyrighted material is only relevant to letters or
other confidential writings not intended for dissemination. It is true that
common-law copyright was often enlisted in the service of personal privacy.
See Brandeis & Warren, The Right to Privacy, 4 Harv. L. Rev. 193, 198-199
(1890). In its commercial guise, however, an author's right to choose when
he will publish is no less deserving of protection. The period
encompassing the work's initiation, its preparation, and its grooming for
public dissemination is a crucial one for any literary endeavor. The Copyright
Act, which accords the copyright owner the "right to control the first public
distribution" of his work, House Report, at 62, echos the common law's concern
that the author or copyright owner retain control throughout this critical
stage. See generally Comment, The Stage of Publication as a "Fair Use"
Factor: Harper & Row, Publishers v. Nation Enterprises, 58 St. John's L.
Rev. 597 (1984). The obvious benefit to author and public alike of assuring
authors the leisure to develop their ideas free from fear of expropriation
outweighs any short-term "news value" to be gained from premature
publication of the author's expression. See Goldstein, Copyright and the First
Amendment, 70 Colum. L. Rev. 983, 1004-1006 (1970) (The absolute protection
the common law accorded to soon-to-be published works "[was] justified by
[its] brevity and expedience"). The author's control of first public
distribution implicates not only his personal interest in creative control
but his property interest in exploitation of prepublication rights, which
are valuable in themselves and serve as a valuable adjunct to publicity and
marketing. See Belushi v. Woodward, 598 F.Supp. 36 (DC 1984) (successful
marketing depends on coordination of serialization and release to public);
Marks, Subsidiary Rights and Permissions, in What Happens in Book Publishing
230 (C. Grannis ed. 1967) (exploitation of subsidiary rights is necessary to
financial success of new books). Under ordinary circumstances, the author's
right to control the first public appearance of his undisseminated
expression will outweigh a claim of fair use.
B
Respondents, however, contend that First Amendment values require a different
rule under the circumstances of this case. The thrust of the decision below is
that "[the] scope of [fair use] is undoubtedly wider when the information
conveyed relates to matters of high public concern." Consumers Union of the
United States, Inc. v. General Signal Corp., 724 F.2d 1044, 1050 (CA2 1983)
(construing 723 F.2d 195 (1983) (case below) as allowing advertiser to
quote Consumer Reports), cert. denied, 469 U.S. 823 (1984). Respondents
advance the substantial public import of the subject matter of the Ford
memoirs as grounds for excusing a use that would ordinarily not pass muster as
a fair use -- the piracy of verbatim quotations for the purpose of "scooping"
the authorized first serialization. Respondents explain their copying of Mr.
Ford's expression as essential to reporting the news story it claims the book
itself represents. In respondents' view, not only the facts contained in Mr.
Ford's memoirs, but "the precise manner in which [he] expressed himself [were]
as newsworthy as what he had to say." Brief for Respondents 38-39. Respondents
argue that the public's interest in learning this news as fast as possible
outweighs the right of the author to control its first publication.
The Second Circuit noted, correctly, that copyright's idea/expression
dichotomy "[strikes] a definitional balance between the First Amendment and
the Copyright Act by permitting free communication of facts while still
protecting an author's expression." 723 F.2d, at 203. No author may copyright
his ideas or the facts he narrates. 17 U. S. C. Section 102(b). See, e. g.,
New York Times Co. v. United States, 403 U.S. 713, 726, n. (1971) (BRENNAN,
J., concurring) (Copyright laws are not restrictions on freedom of speech as
copyright protects only form of expression and not the ideas expressed);
1 Nimmer Section 1.10[B][2]. As this Court long ago observed: "[The] news
element -- the information respecting current events contained in the
literary production -- is not the creation of the writer, but is a report
of matters that ordinarily are publici juris; it is the history of the day."
International News Service v. Associated Press, 248 U.S. 215, 234 (1918). But
copyright assures those who write and publish factual narratives such as
"A Time to Heal" that they may at least enjoy the right to market the
original expression contained therein as just compensation for their
investment. Cf. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S.
562, 575 (1977).
Respondents' theory, however, would expand fair use to effectively destroy any
expectation of copyright protection in the work of a public figure. Absent
such protection, there would be little incentive to create or profit in
financing such memoirs, and the public would be denied an important source of
significant historical information. 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. See Wainwright Securities Inc. v. Wall Street
Transcript Corp., 558 F.2d 91 (CA2 1977), cert. denied, 434 U.S. 1014 (1978).
Nor do respondents assert any actual necessity for circumventing the copyright
scheme with respect to the types of works and users at issue here. {6}
Where an author and publisher have invested extensive resources in creating
an original work and are poised to release it to the public, no legitimate
aim is served by pre-empting the right of first publication. The fact that
the words the author has chosen to clothe his narrative may of themselves
be "newsworthy" is not an independent justification for unauthorized copying
of the author's expression prior to publication. To paraphrase another
recent Second Circuit decision:
"[Respondent] possessed an unfettered right to use any factual
information revealed in [the memoirs] for the purpose of enlightening
its audience, but it can claim no need to 'bodily appropriate' [Mr.
Ford's] 'expression' of that information by utilizing portions of
the actual [manuscript]. The public interest in the free flow of
information is assured by the law's refusal to recognize a valid
copyright in facts. The fair use doctrine is not a license for
corporate theft, empowering a court to ignore a copyright whenever it
determines the underlying work contains material of possible public
importance." Iowa State University Research Foundation, Inc. v. American
Broadcasting Cos., Inc., 621 F.2d 57, 61 (1980) (citations omitted).
Accord, Roy Export Co. Establishment v. Columbia Broadcasting System, Inc.,
503 F.Supp. 1137 (SDNY 1980) ("newsworthiness" of material copied does not
justify copying), aff'd, 672 F.2d 1095 (CA2), cert. denied, 459 U.S. 826
(1982); Quinto v. Legal Times of Washington, Inc., 506 F.Supp. 554 (DC 1981)
(same).
In our haste to disseminate news, it should not be forgotten that the
Framers intended copyright itself to be the engine of free expression. By
establishing a marketable right to the use of one's expression, copyright
supplies the economic incentive to create and disseminate ideas. This Court
stated in Mazer v. Stein, 347 U.S. 201, 209 (1954):
"The economic philosophy behind the clause empowering Congress to
grant patents and copyrights is the conviction that encouragement
of individual effort by personal gain is the best way to advance
public welfare through the talents of authors and inventors in
'Science and useful Arts.'"
And again in Twentieth Century Music Corp. v. Aiken:
"The immediate effect of our copyright law is to secure a fair return
for an 'author's' creative labor. But the ultimate aim is, by this
incentive, to stimulate [the creation of useful works] for the
general public good." 422 U.S., at 156.
It is fundamentally at odds with the scheme of copyright to accord lesser
rights in those works that are of greatest importance to the public. Such
a notion ignores the major premise of copyright and injures author and
public alike. "[To] propose that fair use be imposed whenever the 'social
value [of dissemination] . . . outweighs any detriment to the artist,'
would be to propose depriving copyright owners of their right in the property
precisely when they encounter those users who could afford to pay for it."
Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the
Betamax Case and its Predecessors, 82 Colum. L. Rev. 1600, 1615 (1982). And as
one commentator has noted: "If every volume that was in the public interest
could be pirated away by a competing publisher, . . . the public [soon] would
have nothing worth reading." Sobel, Copyright and the First Amendment: A
Gathering Storm?, 19 ASCAP Copyright Law Symposium 43, 78 (1971). See
generally Comment, Copyright and the First Amendment; Where Lies the Public
Interest?, 59 Tulane L. Rev. 135 (1984).
Moreover, freedom of thought and expression "includes both the right to speak
freely and the right to refrain from speaking at all." Wooley v. Maynard,
430 U.S. 705, 714 (1977) (BURGER, C. J.). We do not suggest this right not
to speak would sanction abuse of the copyright owner's monopoly as an
instrument to suppress facts. But in the words of New York's Chief Judge
Fuld:
"The essential thrust of the First Amendment is to prohibit improper
restraints on the voluntary public expression of ideas; it shields
the man who wants to speak or publish when others wish him to be
quiet. There is necessarily, and within suitably defined areas, a
concomitant freedom not to speak publicly, one which serves the same
ultimate end as freedom of speech in its affirmative aspect." Estate
of Hemingway v. Random House, Inc., 23 N.Y. 2d 341, 348, 244 N.E. 2d
250, 255 (1968).
Courts and commentators have recognized that copyright, and the right of
first publication in particular, serve this countervailing First Amendment
value. See Schnapper v. Foley, 215 U. S. App. D. C. 59, 667 F.2d 102 (1981),
cert. denied, 455 U.S. 948 (1982); 1 Nimmer Section 1.10[B], at 1-70, n. 24;
Patry 140-142.
In view of the First Amendment protections already embodied in the Copyright
Act's distinction between copyrightable expression and uncopyrightable facts
and ideas, and the latitude for scholarship and comment traditionally afforded
by fair use, we see no warrant for expanding the doctrine of fair use to
create what amounts to a public figure exception to copyright. Whether
verbatim copying from a public figure's manuscript in a given case is or is
not fair must be judged according to the traditional equities of fair use.
IV
Fair use is a mixed question of law and fact. Pacific & Southern Co. v.
Duncan, 744 F.2d 1490, 1495, n. 8 (CA11 1984). Where the district court has
found facts sufficient to evaluate each of the statutory factors, an appellate
court "need not remand for further factfinding . . . [but] may conclude as
a matter of law that [the challenged use] [does] not qualify as a fair use
of the copyrighted work." Id., at 1495. Thus whether The Nation article
constitutes fair use under Section 107 must be reviewed in light of the
principles discussed above. The factors enumerated in the section are not
meant to be exclusive: "[Since] the doctrine is an equitable rule of reason,
no generally applicable definition is possible, and each case raising the
question must be decided on its own facts." House Report, at 65. The four
factors identified by Congress as especially relevant in determining whether
the use was fair are: (1) the purpose and character of the use; (2) the
nature of the copyrighted work; (3) the substantiality of the portion used
in relation to the copyrighted work as a whole; (4) the effect on the
potential market for or value of the copyrighted work. We address each one
separately.
Purpose of the Use.
The Second Circuit correctly identified news reporting as the general
purpose of The Nation's use. News reporting is one of the examples
enumerated in Section 107 to "give some idea of the sort of activities
the courts might regard as fair use under the circumstances." Senate
Report, at 61. This listing was not intended to be exhaustive, see ibid.;
Section 101 (definition of "including" and "such as"), or to single out
any particular use as presumptively a "fair" use. The drafters resisted
pressures from special interest groups to create presumptive categories
of fair use, but structured the provision as an affirmative defense
requiring a case-by-case analysis. See H. R. Rep. No. 83, 90th Cong.,
1st Sess., 37 (1967); Patry 477, n. 4. "[Whether] a use referred to in
the first sentence of section 107 is a fair use in a particular case will
depend upon the application of the determinative factors, including those
mentioned in the second sentence." Senate Report, at 62. The fact that an
article arguably is "news" and therefore a productive use is simply one
factor in a fair use analysis.
We agree with the Second Circuit that the trial court erred in fixing on
whether the information contained in the memoirs was actually new to the
public. As Judge Meskill wisely noted, "[courts] should be chary of deciding
what is and what is not news". 723 F.2d, at 215 (dissenting). Cf. Gertz
v. Robert Welch, Inc., 418 U.S. 323, 345-346 (1974). "The issue is not
what constitutes 'news,' but whether a claim of newsreporting is a valid fair
use defense to an infringement of copyrightable expression." Patry 119. The
Nation has every right to seek to be the first to publish information. But
The Nation went beyond simply reporting uncopyrightable information and
actively sought to exploit the headline value of its infringement, making
a "news event" out of its unauthorized first publication of a noted
figure's copyrighted expression.
The fact that a publication was commercial as opposed to nonprofit is a
separate factor that tends to weigh against a finding of fair use. "[Every]
commercial use of copyrighted material is presumptively an unfair exploitation
of the monopoly privilege that belongs to the owner of the copyright." Sony
Corp. of America v. Universal City Studios, Inc., 464 U.S., at 451. In arguing
that the purpose of news reporting is not purely commercial, The Nation misses
the point entirely. The crux of the profit/nonprofit distinction is not
whether the sole motive of the use is monetary gain but whether the user
stands to profit from exploitation of the copyrighted material without paying
the customary price. See Roy Export Co. Establishment v. Columbia Broadcasting
System, Inc., 503 F.Supp., at 1144; 3 Nimmer Section 13.05[A][1], at 13-71,
n. 25.3.
In evaluating character and purpose we cannot ignore The Nation's stated
purpose of scooping the forthcoming hardcover and Time abstracts. {7}
App. to Pet. for Cert. C-27. The Nation's use had not merely the incidental
effect but the intended purpose of supplanting the copyright holder's
commercially valuable right of first publication. See Meredith Corp. v.
Harper & Row, Publishers, Inc., 378 F.Supp. 686, 690 (SDNY) (purpose of
text was to compete with original), affirmed, 500 F.2d 1221 (CA2 1974).
Also relevant to the "character" of the use is "the propriety of the
defendant's conduct". 3 Nimmer Section 13.05[A], at 13-72. "Fair use
presupposes 'good faith' and 'fair dealing'". Time Inc. v. Bernard Geis
Associates, 293 F.Supp. 130, 146 (SDNY 1968), quoting Schulman, Fair Use
and the Revision of the Copyright Act, 53 Iowa L. Rev. 832 (1968). The
trial court found that The Nation knowingly exploited a purloined
manuscript. App. to Pet. for Cert. B-1, C-20 -- C-21, C-28 -- C-29. Unlike
the typical claim of fair use, The Nation cannot offer up even the fiction
of consent as justification. Like its competitor newsweekly, it was free
to bid for the right of abstracting excerpts from "A Time to Heal". Fair
use "distinguishes between 'a true scholar and a chiseler who infringes
a work for personal profit.'" Wainwright Securities Inc. v. Wall Street
Transcript Corp., 558 F.2d, at 94, quoting from Hearings on Bills for the
General Revision of the Copyright Law before the House Committee on the
Judiciary, 89th Cong., 1st Sess., ser. 8, pt. 3, p. 1706 (1966) (statement
of John Schulman).
Nature of the Copyrighted Work.
Second, the Act directs attention to the nature of the copyrighted work.
"A Time to Heal" may be characterized as an unpublished historical narrative
or autobiography. The law generally recognizes a greater need to disseminate
factual works than works of fiction or fantasy. See Gorman, Fact or Fancy?
The Implications for Copyright, 29 J. Copyright Soc. 560, 561 (1982).
"[Even] within the field of fact works, there are gradations as to
the relative proportion of fact and fancy. One may move from sparsely
embellished maps and directories to elegantly written biography. The
extent to which one must permit expressive language to be copied, in
order to assure dissemination of the underlying facts, will thus vary
from case to case." Id., at 563.
Some of the briefer quotes from the memoirs are arguably necessary adequately
to convey the facts; for example, Mr. Ford's characterization of the White
House tapes as the "smoking gun" is perhaps so integral to the idea expressed
as to be inseparable from it. Cf. 1 Nimmer Section 1.10[C]. But The Nation
did not stop at isolated phrases and instead excerpted subjective
descriptions and portraits of public figures whose power lies in the
author's individualized expression. Such use, focusing on the most
expressive elements of the work, exceeds that necessary to disseminate
the facts.
The fact that a work is unpublished is a critical element of its "nature".
3 Nimmer Section 13.05[A]; Comment, 58 St. John's L. Rev., at 613. Our prior
discussion establishes that the scope of fair use is narrower with respect to
unpublished works. While even substantial quotations might qualify as fair use
in a review of a published work or a news account of a speech that had been
delivered to the public or disseminated to the press, see House Report, at 65,
the author's right to control the first public appearance of his expression
weighs against such use of the work before its release. The right of first
publication encompasses not only the choice whether to publish at all, but
also the choices of when, where, and in what form first to publish a work.
In the case of Mr. Ford's manuscript, the copyright holders' interest in
confidentiality is irrefutable; the copyright holders had entered into a
contractual undertaking to "keep the manuscript confidential" and required
that all those to whom the manuscript was shown also "sign an agreement to
keep the manuscript confidential." App. to Pet. for Cert. C-19 -- C-20. While
the copyright holders' contract with Time required Time to submit its proposed
article seven days before publication, The Nation's clandestine publication
afforded no such opportunity for creative or quality control. Id., at C-18.
It was hastily patched together and contained "a number of inaccuracies."
App. 300b-300c (testimony of Victor Navasky). A use that so clearly infringes
the copyright holder's interests in confidentiality and creative control is
difficult to characterize as "fair".
Amount and Substantiality of the Portion Used.
Next, the Act directs us to examine the amount and substantiality of the
portion used in relation to the copyrighted work as a whole. In absolute
terms, the words actually quoted were an insubstantial portion of "A Time
to Heal". The District Court, however, found that "[The] Nation took what
was essentially the heart of the book.". 557 F.Supp., at 1072. We believe
the Court of Appeals erred in overruling the District Judge's evaluation
of the qualitative nature of the taking. See, e. g., Roy Export Co.
Establishment v. Columbia Broadcasting System, Inc., 503 F.Supp., at 1145
(taking of 55 seconds out of 1 hour and 29-minute film deemed qualitatively
substantial). A Time editor described the chapters on the pardon as "the
most interesting and moving parts of the entire manuscript." Reply Brief
for Petitioners 16, n.8. The portions actually quoted were selected by Mr.
Navasky as among the most powerful passages in those chapters. He testified
that he used verbatim excerpts because simply reciting the information
could not adequately convey the "absolute certainty with which [Ford]
expressed himself," App. 303; or show that "this comes from President
Ford", id., at 305; or carry the "definitive quality" of the original,
id., at 306. In short, he quoted these passages precisely because they
qualitatively embodied Ford's distinctive expression.
As the statutory language indicates, a taking may not be excused merely
because it is insubstantial with respect to the infringing work. As Judge
Learned Hand cogently remarked, "no plagiarist can excuse the wrong by showing
how much of his work he did not pirate." Sheldon v. Metro-Goldwyn Pictures
Corp., 81 F.2d 49, 56 (CA2), cert. denied, 298 U.S. 669 (1936). Conversely,
the fact that a substantial portion of the infringing work was copied verbatim
is evidence of the qualitative value of the copied material, both to the
originator and to the plagiarist who seeks to profit from marketing someone
else's copyrighted expression.
Stripped to the verbatim quotes, {8} the direct takings from the unpublished
manuscript constitute at least 13% of the infringing article. See Meeropol
v. Nizer, 560 F.2d 1061, 1071 (CA2 1977) (copyrighted letters constituted
less than 1% of infringing work but were prominently featured). The Nation
article is structured around the quoted excerpts which serve as its dramatic
focal points. See Appendix to this opinion, post, p. 570. In view of the
expressive value of the excerpts and their key role in the infringing work,
we cannot agree with the Second Circuit that the "magazine took a meager,
indeed an infinitesimal amount of Ford's original language".
723 F.2d, at 209.
Effect on the Market.
Finally, the Act focuses on "the effect of the use upon the potential
market for or value of the copyrighted work". This last factor is
undoubtedly the single most important element of fair use. {9} See
3 Nimmer Section 13.05[A], at 13-76, and cases cited therein. "Fair use,
when properly applied, is limited to copying by others which does not
materially impair the marketability of the work which is copied."
1 Nimmer Section 1.10[D], at 1-87. The trial court found not merely a
potential but an actual effect on the market. Time's cancellation of its
projected serialization and its refusal to pay the $12,500 were the direct
effect of the infringement.
The Court of Appeals rejected this fact-finding as clearly erroneous, noting
that the record did not establish a causal relation between Time's
nonperformance and respondents' unauthorized publication of Mr. Ford's
expression as opposed to the facts taken from the memoirs. We disagree. Rarely
will a case of copyright infringement present such clear-cut evidence of
actual damage. Petitioners assured Time that there would be no other
authorized publication of any portion of the unpublished manuscript prior to
April 23, 1979. Any publication of material from chapters 1 and 3 would permit
Time to renegotiate its final payment. Time cited The Nation's article, which
contained verbatim quotes from the unpublished manuscript, as a reason for
its nonperformance. With respect to apportionment of profits flowing from a
copyright infringement, this Court has held that an infringer who commingles
infringing and noninfringing elements "must abide the consequences, unless he
can make a separation of the profits so as to assure to the injured party all
that justly belongs to him." Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S.
390, 406 (1940). Cf. 17 U.S.C. Section 504(b) (the infringer is required to
prove elements of profits attributable to other than the infringed work).
Similarly, once a copyright holder establishes with reasonable probability
the existence of a causal connection between the infringement and a loss
of revenue, the burden properly shifts to the infringer to show that this
damage would have occurred had there been no taking of copyrighted
expression. See 3 Nimmer Section 14.02, at 14-7 -- 14-8.1. Petitioners
established a prima facie case of actual damage that respondents failed
to rebut. See Stevens Linen Associates, Inc. v. Mastercraft Corp., 656 F.2d
11, 15 (CA2 1981). The trial court properly awarded actual damages and
accounting of profits. See 17 U.S.C. Sectiion 504(b).
More important, to negate fair use one need only show that if the challenged
use "should become widespread, it would adversely affect the potential market
for the copyrighted work." Sony Corp. of America v. Universal City Studios,
Inc., 464 U.S., at 451 (emphasis added); id., at 484, and n. 36 (collecting
cases) (dissenting opinion). This inquiry must take account not only of harm
to the original but also of harm to the market for derivative works. See Iowa
State University Research Foundation, Inc. v. American Broadcasting Cos., 621
F.2d 57 (CA2 1980); Meeropol v. Nizer, supra, at 1070; Roy Export v. Columbia
Broadcasting System, Inc., 503 F.Supp., at 1146. "If the defendant's work
adversely affects the value of any of the rights in the copyrighted work (in
this case the adaptation [and serialization] right) the use is not fair."
3 Nimmer Section 13.05[B], at 13-77 -- 13-78 (footnote omitted).
It is undisputed that the factual material in the balance of The Nation's
article, besides the verbatim quotes at issue here, was drawn exclusively from
the chapters on the pardon. The excerpts were employed as featured episodes in
a story about the Nixon pardon -- precisely the use petitioners had licensed
to Time. The borrowing of these verbatim quotes from the unpublished
manuscript lent The Nation's piece a special air of authenticity -- as
Navasky expressed it, the reader would know it was Ford speaking and not
The Nation. App. 300c. Thus it directly competed for a share of the market
for prepublication excerpts. The Senate Report states:
"With certain special exceptions . . . a use that supplants any part
of the normal market for a copyrighted work would ordinarily be
considered an infringement." Senate Report, at 65.
Placed in a broader perspective, a fair use doctrine that permits extensive
prepublication quotations from an unreleased manuscript without the
copyright owner's consent poses substantial potential for damage to the
marketability of first serialization rights in general. "Isolated instances
of minor infringements, when multiplied many times, become in the aggregate
a major inroad on copyright that must be prevented." Ibid.
V
The Court of Appeals erred in concluding that The Nation's use of the
copyrighted material was excused by the public's interest in the subject
matter. It erred, as well, in overlooking the unpublished nature of the work
and the resulting impact on the potential market for first serial rights of
permitting unauthorized prepublication excerpts under the rubric of fair use.
Finally, in finding the taking "infinitesimal", the Court of Appeals accorded
too little weight to the qualitative importance of the quoted passages of
original expression. In sum, the traditional doctrine of fair use, as embodied
in the Copyright Act, does not sanction the use made by The Nation of these
copyrighted materials. Any copyright infringer may claim to benefit the public
by increasing public access to the copyrighted work. See Pacific & Southern
Co. v. Duncan, 744 F.2d, at 1499-1500. But Congress has not designed, and
we see no warrant for judicially imposing, a "compulsory license"
permitting unfettered access to the unpublished copyrighted expression of
public figures.
The Nation conceded that its verbatim copying of some 300 words of direct
quotation from the Ford manuscript would constitute an infringement unless
excused as a fair use. Because we find that The Nation's use of these verbatim
excerpts from the unpublished manuscript was not a fair use, the judgment
of the Court of Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
The portions of The Nation article which were copied verbatim from "A Time to
Heal", excepting quotes from Government documents and quotes attributed by
Ford to third persons, are identified in boldface in the text. See ante, at
562, n. 7. The corresponding passages in the Ford manuscript are footnoted.
[.......... THIS PORTION DELETED FROM THIS HTML FILE ..........]
DISSENT:
JUSTICE BRENNAN, with whom JUSTICE WHITE and JUSTICE MARSHALL join,
dissenting.
The Court holds that The Nation's quotation of 300 words from the unpublished
200,000-word manuscript of President Gerald R. Ford infringed the copyright in
that manuscript, even though the quotations related to a historical event of
undoubted significance -- the resignation and pardon of President Richard M.
Nixon. Although the Court pursues the laudable goal of protecting "the
economic incentive to create and disseminate ideas," ante, at 558, this
zealous defense of the copyright owner's prerogative will, I fear, stifle the
broad dissemination of ideas and information copyright is intended to nurture.
Protection of the copyright owner's economic interest is achieved in this case
through an exceedingly narrow definition of the scope of fair use. The
progress of arts and sciences and the robust public debate essential to an
enlightened citizenry are ill served by this constricted reading of the fair
use doctrine. See 17 U. S. C. Section 107. I therefore respectfully dissent.
I
A
This case presents two issues. First, did The Nation's use of material from
the Ford manuscript in forms other than direct quotation from that manuscript
infringe Harper & Row's copyright. Second, did the quotation of approximately
300 words from the manuscript infringe the copyright because this quotation
did not constitute "fair use" within the meaning of Section 107 of the
Copyright Act. 17 U.S.C. Section 107. The Court finds no need to resolve the
threshold copyrightability issue. The use of 300 words of quotation was, the
Court finds, beyond the scope of fair use and thus a copyright infringement.
{1'} Because I disagree with the Court's fair use holding, it is necessary
for me to decide the threshold copyrightability question.
B
"The enactment of copyright legislation by Congress under the terms of the
Constitution is not based upon any natural right that the author has in his
writings . . . but upon the ground that the welfare of the public will be
served and progress of science and useful arts will be promoted by
securing to authors for limited periods the exclusive rights to their
writings." H. R. Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909). Congress thus
seeks to define the rights included in copyright so as to serve the public
welfare and not necessarily so as to maximize an author's control over his or
her product. The challenge of copyright is to strike the "difficult balance
between the interests of authors and inventors in the control and exploitation
of their writings and discoveries on the one hand, and society's competing
interest in the free flow of ideas, information, and commerce on the other
hand". Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417,
429 (1984).
The "originality" requirement now embodied in Section 102 of the Copyright
Act is crucial to maintenance of the appropriate balance between these
competing interests. {2'} Properly interpreted in the light of the legislative
history, this section extends copyright protection to an author's literary
form but permits free use by others of the ideas and information the author
communicates. See S. Rep. No. 93-983, pp. 107-108 (1974) ("Copyright does not
preclude others from using the ideas or information revealed by the author's
work. It pertains to the literary . . . form in which the author expressed
intellectual concepts"); H. R. Rep. No. 94-1476, pp. 56-57 (1976) (same);
New York Times Co. v. United States, 403 U.S. 713, 726, n. (1971) (BRENNAN,
J., concurring) ("[The] copyright laws, of course, protect only the form of
expression and not the ideas expressed"). This limitation of protection to
literary form precludes any claim of copyright in facts, including historical
narration.
"It is not to be supposed that the framers of the Constitution, when
they empowered Congress 'to promote the progress of science and useful
arts, by securing for limited times to authors and inventors the
exclusive right to their respective writings and discoveries' (Const.,
Art I, Section 8, par. 8), intended to confer upon one who might happen
to be the first to report a historic event the exclusive right for any
period to spread the knowledge of it." International News Service v.
Associated Press, 248 U.S. 215, 234 (1918).
Accord, Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303,
309 (CA2 1966), cert. denied, 385 U.S. 1009 (1967). See 1 Nimmer Section
2.11[A], at 2-158. {3'}
The "promotion of science and the useful arts" requires this limit on the
scope of an author's control. Were an author able to prevent subsequent
authors from using concepts, ideas, or facts contained in his or her work, the
creative process would wither and scholars would be forced into unproductive
replication of the research of their predecessors. See Hoehling v. Universal
City Studios, Inc., 618 F.2d 972, 979 (CA2 1980). This limitation on copyright
also ensures consonance with our most important First Amendment values. Cf.
Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 577, n. 13 (1977).
Our "profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open", New York Times Co.
v. Sullivan, 376 U.S. 254, 270 (1964), leaves no room for a statutory
monopoly over information and ideas. "The arena of public debate would be
quiet, indeed, if a politician could copyright his speeches or a philosopher
his treatises and thus obtain a monopoly on the ideas they contained.".
Lee v. Runge, 404 U.S. 887, 893 (1971) (Douglas, J., dissenting from denial
of certiorari). A broad dissemination of principles, ideas, and factual
information is crucial to the robust public debate and informed citizenry
that are "the essence of self-government". Garrison v. Louisiana, 379 U.S.
64, 74-75 (1964). And every citizen must be permitted freely to marshal
ideas and facts in the advocacy of particular political choices. {4'}
It follows that infringement of copyright must be based on a taking of
literary form, as opposed to the ideas or information contained in a
copyrighted work. Deciding whether an infringing appropriation of literary
form has occurred is difficult for at least two reasons. First, the
distinction between literary form and information or ideas is often
elusive in practice. Second, infringement must be based on a substantial
appropriation of literary form. This determination is equally challenging. Not
surprisingly, the test for infringement has defied precise formulation. {5'}
In general, though, the inquiry proceeds along two axes: how closely has the
second author tracked the first author's particular language and structure of
presentation; and how much of the first author's language and structure has
the second author appropriated. {6'}
In the present case the infringement analysis must be applied to a historical
biography in which the author has chronicled the events of his White House
tenure and commented on those events from his unique perspective. Apart from
the quotations, virtually all of the material in The Nation's article
indirectly recounted Mr. Ford's factual narrative of the Nixon resignation
and pardon, his latter-day reflections on some events of his Presidency,
and his perceptions of the personalities at the center of those events.
See ante, at 570-579. No copyright can be claimed in this information qua
information. Infringement would thus have to be based on too close and
substantial a tracking of Mr. Ford's expression of this information. {7'}
The Language.
Much of the information The Nation conveyed was not in the form of
paraphrase at all, but took the form of synopsis of lengthy discussions
in the Ford manuscript. {8'} In the course of this summary presentation,
The Nation did use occasional sentences that closely resembled language
in the original Ford manuscript. {9'} But these linguistic similarities
are insufficient to constitute an infringement for three reasons. First,
some leeway must be given to subsequent authors seeking to convey facts
because those "wishing to express the ideas contained in a factual work
often can choose from only a narrow range of expression." Landsberg v.
Scrabble Crossword Game Players, Inc., 736 F.2d 485, 488 (CA9 1984). Second,
much of what The Nation paraphrased was material in which Harper & Row
could claim no copyright. {10'} Third, The Nation paraphrased nothing
approximating the totality of a single paragraph, much less a chapter or the
work as a whole. At most The Nation paraphrased disparate isolated sentences
from the original. A finding of infringement based on paraphrase generally
requires far more close and substantial a tracking of the original language
than occurred in this case. See, e. g., Wainwright Securities Inc. v. Wall
Street Transcript Corp., 558 F.2d 91 (CA2 1977).
The Structure of Presentation.
The article does not mimic Mr. Ford's structure. The information The Nation
presents is drawn from scattered sections of the Ford work and does not
appear in the sequence in which Mr. Ford presented it. {11'} Some of The
Nation's discussion of the pardon does roughly track the order in which the
Ford manuscript presents information about the pardon. With respect to this
similarity, however, Mr. Ford has done no more than present the facts
chronologically and cannot claim infringement when a subsequent author
similarly presents the facts of history in a chronological manner.
Also, it is difficult to suggest that a 2,000-word article could bodily
appropriate the structure of a 200,000-word book. Most of what Mr. Ford
created, and most of the history he recounted, were simply not represented
in The Nation's article. {12'}
When The Nation was not quoting Mr. Ford, therefore, its efforts to convey
the historical information in the Ford manuscript did not so closely and
substantially track Mr. Ford's language and structure as to constitute an
appropriation of literary form.
II
The Nation is thus liable in copyright only if the quotation of 300 words
infringed any of Harper & Row's exclusive rights under Section 106 of the
Act. Section 106 explicitly makes the grant of exclusive rights "[subject]
to section 107 through 118". 17 U.S.C. Section 106. Section 107 states:
"Notwithstanding the provisions of section 106, the fair use of a copyrighted
work . . . for purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship or research, is not
an infringement of copyright." The question here is whether The Nation's
quotation was a noninfringing fair use within the meaning of Section 107.
Congress "eschewed a rigid, bright-line approach to fair use." Sony Corp. of
America v. Universal City Studios, Inc., 464 U.S., at 449, n.31. A court is
to apply an "equitable rule of reason" analysis, id., at 448, guided by four
statutorily prescribed factors:
"(1) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes;
"(2) the nature of the copyrighted work;
"(3) the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and
"(4) the effect of the use upon the potential market for or value
of the copyrighted work." 17 U.S.C. Section 107.
These factors are not necessarily the exclusive determinants of the fair use
inquiry and do not mechanistically resolve fair use issues; "no generally
applicable definition is possible, and each case raising the question must be
decided on its own facts." H. R. Rep. No. 94-1476, at 65. See also id., at 66
("[The] endless variety of situations and combinations of circumstances that
can arise in particular cases precludes the formulation of exact rules in
the statute"); S. Rep. No. 94-473, p. 62 (1975). The statutory factors do,
however, provide substantial guidance to courts undertaking the proper
fact-specific inquiry.
With respect to a work of history, particularly the memoirs of a public
official, the statutorily prescribed analysis cannot properly be conducted
without constant attention to copyright's crucial distinction between
protected literary form and unprotected information or ideas. The question
must always be: Was the subsequent author's use of literary form a fair use
within the meaning of § 107, in light of the purpose for the use, the
nature of the copyrighted work, the amount of literary form used, and the
effect of this use of literary form on the value of or market for the
original?
Limiting the inquiry to the propriety of a subsequent author's use of
the copyright owner's literary form is not easy in the case of a work of
history. Protection against only substantial appropriation of literary form
does not ensure historians a return commensurate with the full value of their
labors. The literary form contained in works like "A Time to Heal" reflects
only a part of the labor that goes into the book. It is the labor of
collecting, sifting, organizing, and reflecting that predominates in the
creation of works of history such as this one. The value this labor produces
lies primarily in the information and ideas revealed, and not in the
particular collocation of words through which the information and ideas are
expressed. Copyright thus does not protect that which is often of most value
in a work of history, and courts must resist the tendency to reject the fair
use defense on the basis of their feeling that an author of history has been
deprived of the full value of his or her labor. A subsequent author's taking
of information and ideas is in no sense piratical because copyright law simply
does not create any property interest in information and ideas.
The urge to compensate for subsequent use of information and ideas is perhaps
understandable. An inequity seems to lurk in the idea that much of the fruit
of the historian's labor may be used without compensation. This, however, is
not some unforeseen byproduct of a statutory scheme intended primarily to
ensure a return for works of the imagination. Congress made the affirmative
choice that the copyright laws should apply in this way: "Copyright does not
preclude others from using the ideas or information revealed by the author's
work. It pertains to the literary . . . form in which the author expressed
intellectual concepts." H. R. Rep. No. 94-1476, at 56-57. This distinction is
at the essence of copyright. The copyright laws serve as the "engine of free
expression," ante, at 558, only when the statutory monopoly does not choke off
multifarious indirect uses and consequent broad dissemination of information
and ideas. To ensure the progress of arts and sciences and the integrity
of First Amendment values, ideas and information must not be freighted
with claims of proprietary right. {13'}
In my judgment, the Court's fair use analysis has fallen to the temptation
to find copyright violation based on a minimal use of literary form in order
to provide compensation for the appropriation of information from a work of
history. The failure to distinguish between information and literary form
permeates every aspect of the Court's fair use analysis and leads the Court
to the wrong result in this case. Application of the statutorily prescribed
analysis with attention to the distinction between information and literary
form leads to a straightforward finding of fair use within the meaning of
Section 107.
The Purpose of the Use.
The Nation's purpose in quoting 300 words of the Ford manuscript was, as
the Court acknowledges, news reporting. See ante, at 561. The Ford work
contained information about important events of recent history. Two
principals, Mr. Ford and General Alexander Haig, were at the time of The
Nation's publication in 1979 widely thought to be candidates for the
Presidency. That The Nation objectively reported the information in the Ford
manuscript without independent commentary in no way diminishes the conclusion
that it was reporting news. A typical newsstory differs from an editorial
precisely in that it presents newsworthy information in a straightforward and
unelaborated manner. Nor does the source of the information render The
Nation's article any less a news report. Often books and manuscripts,
solicited and unsolicited, are the subject matter of news reports. E.g.,
New York Times Co. v. United States, 403 U.S. 713 (1971). Frequently the
manuscripts are unpublished at the time of the news report. {14'}
Section 107 lists news reporting as a prime example of fair use of another's
expression. Like criticism and all other purposes Congress explicitly approved
in Section 107, news reporting informs the public; the language of Section
107 makes clear that Congress saw the spread of knowledge and information
as the strongest justification for a properly limited appropriation of
expression. The Court of Appeals was therefore correct to conclude that
the purpose of The Nation's use -- dissemination of the information
contained in the quotations of Mr. Ford's work -- furthered the public
interest. 723 F.2d 195, 207-208 (CA2 1983). In light of the explicit
congressional endorsement in Section 107, the purpose for which Ford's
literary form was borrowed strongly favors a finding of fair use.
The Court concedes the validity of the news reporting purpose {15'} but
then quickly offsets it against three purportedly countervailing
considerations. First, the Court asserts that because The Nation publishes
for profit, its publication of the Ford quotes is a presumptively unfair
commercial use. Second, the Court claims that The Nation's stated desire to
create a "news event" signaled an illegitimate purpose of supplanting the
copyright owner's right of first publication. Ante , at 562-563. Third,
The Nation acted in bad faith, the Court claims, because its editor
"knowingly exploited a purloined manuscript." Ante, at 563. {15}
The Court's reliance on the commercial nature of The Nation's use as "a
separate factor that tends to weigh against a finding of fair use," ante, at
562, is inappropriate in the present context. Many uses Section 107 lists as
paradigmatic examples of fair use, including criticism, comment, and news
reporting , are generally conducted for profit in this country, a fact of
which Congress was obviously aware when it enacted Section 107. To negate any
argument favoring fair use based on news reporting or criticism because that
reporting or criticism was published for profit is to render meaningless the
congressional imprimatur placed on such uses. {16'}
Nor should The Nation's intent to create a "news event" weigh against a
finding of fair use. Such a rule, like the Court's automatic presumption
against news reporting for profit, would undermine the congressional
validation of the news reporting purpose. A news business earns its
reputation, and therefore its readership, through consistent prompt
publication of news -- and often through "scooping" rivals. More importantly,
the Court's failure to maintain the distinction between information and
literary form colors the analysis of this point. Because Harper & Row had no
legitimate copyright interest in the information and ideas in the Ford
manuscript, The Nation had every right to seek to be the first to disclose
these facts and ideas to the public. The record suggests only that The Nation
sought to be the first to reveal the information in the Ford manuscript. The
Nation's stated purpose of scooping the competition should under those
circumstances have no negative bearing on the claim of fair use. Indeed the
Court's reliance on this factor would seem to amount to little more than
distaste for the standard journalistic practice of seeking to be the first
to publish news.
The Court's reliance on The Nation's putative bad faith is equally
unwarranted. No court has found that The Nation possessed the Ford manuscript
illegally or in violation of any common-law interest of Harper & Row; all
common-law causes of action have been abandoned or dismissed in this case.
723 F.2d, at 199-201. Even if the manuscript had been "purloined" by someone,
nothing in this record imputes culpability to The Nation. {17'} On the basis
of the record in this case, the most that can be said is that The Nation
made use of the contents of the manuscript knowing the copyright owner
would not sanction the use.
At several points the Court brands this conduct thievery. See, e.g., ante,
at 556, 563. This judgment is unsupportable, and is perhaps influenced by
the Court's unspoken tendency in this case to find infringement based on
the taking of information and ideas. With respect to the appropriation of
information and ideas other than the quoted words, The Nation's use was
perfectly legitimate despite the copyright owner's objection because no
copyright can be claimed in ideas or information. Whether the quotation
of 300 words was an infringement or a fair use within the meaning of
Section 107 is a close question that has produced sharp division in both
this Court and the Court of Appeals. If the Copyright Act were held not
to prohibit the use, then the copyright owner would have had no basis in
law for objecting. The Nation's awareness of an objection that has a
significant chance of being adjudged unfounded cannot amount to bad faith.
Imputing bad faith on the basis of no more than knowledge of such an
objection, the Court impermissibly prejudices the inquiry and impedes
arrival at the proper conclusion that the "purpose" factor of the
statutorily prescribed analysis strongly favors a finding of fair use
in this case.
The Nature of the Copyrighted Work.
In Sony Corp. of America v. Universal City Studios, Inc., we stated that
"not . . . all copyrights are fungible" and that "[copying] a news broadcast
may have a stronger claim to fair use than copying a motion picture."
464 U.S., at 455, n. 40. These statements reflect the principle, suggested
in Section 107(2) of the Act, that the scope of fair use is generally
broader when the source of borrowed expression is a factual or historical
work. See 3 Nimmer Section 13.05[A][2], at 13-73 -- 13-74. "[Informational]
works", like the Ford manuscript, "that readily lend themselves to
productive use by others, are less protected." Sony Corp. of America v.
Universal City Studios, Inc., 464 U.S., at 496-497 (BLACKMUN, J.,
dissenting). Thus the second statutory factor also favors a finding
of fair use in this case.
The Court acknowledges that "[the] law generally recognizes a greater need
to disseminate factual works than works of fiction or fantasy," ante, at
563, and that "[some] of the briefer quotations from the memoir are arguably
necessary to convey the facts," ibid. But the Court discounts the force of
this consideration, primarily on the ground that "[the] fact that a work is
unpublished is a crucial element of its 'nature.'" Ante, at 564. {18'} At
this point the Court introduces into analysis of this case a categorical
presumption against prepublication fair use. See ante, at 555 ("Under ordinary
circumstances, the author's right to control the first public appearance of
his undisseminated expression will outweigh a claim of fair use").
This categorical presumption is unwarranted on its own terms and unfaithful
to congressional intent. {19'} Whether a particular prepublication use will
impair any interest the Court identifies as encompassed with in the right of
first publication, see ante, at 552-555, {20'} will depend on the nature
of the copyrighted work, the timing of prepublication use, the amount of
expression used, and the medium in which the second author communicates.
Also, certain uses might be tolerable for some purposes but not for others.
See Sony Corp. of America v. Universal City Studios, Inc., supra, at 490,
n 40. The Court is ambiguous as to whether it relies on the force of the
presumption against prepublication fair use or an analysis of the purpose
and effect of this particular use. Compare ante, at 552-555, with ante,
at 564. To the extent the Court relies on the presumption, it presumes
intolerable [*597] injury -- in particular the usurpation of the economic
interest {21'} -- based on no more than a quick litmus test for
prepublication timing. Because "Congress has plainly instructed us that
fair use analysis calls for a sensitive balancing of interests", we held
last Term that the fair use inquiry could never be resolved on the basis
of such a "two dimensional" categorical approach. See Sony Corp. of
America v. Universal City Studios, Inc., 464 U.S., at 455, n. 40
(rejecting categorical requirement of "productive use").
To the extent the Court purports to evaluate the facts of this case, its
analysis relies on sheer speculation. The quotation of 300 words from the
manuscript infringed no privacy interest of Mr. Ford. This author intended
the words in the manuscript to be a public statement about his Presidency.
Lacking, therefore, is the "deliberate choice on the part of the copyright
owner" to keep expression confidential, a consideration that the Senate Report
-- in the passage on which the Court places great reliance, see ante, at 553
-- recognized as the impetus behind narrowing fair use for unpublished works.
See S. Rep. No. 94-473, at 64. See also 3 Nimmer Section 13.05[A], at 13-73
("[The] scope of the fair use doctrine is considerably narrower with respect
to unpublished works which are held confidential by their copyright owners")
(emphasis added). What the Court depicts as the copyright owner's
"confidentiality" interest, see ante, at 564, is not a privacy interest at
all. Rather, it is no more than an economic interest in capturing the full
value of initial release of information to the public, and is properly
analyzed as such. See infra, at 602-603. Lacking too is any suggestion that
The Nation's use interfered with the copyright owner's interest in
editorial control of the manuscript. The Nation made use of the Ford
quotes on the eve of official publication.
Thus the only interest The Nation's prepublication use might have infringed is
the copyright owner's interest in capturing the full economic value of initial
release. By considering this interest as a component of the "nature" of the
copyrighted work, the Court's analysis deflates The Nation's claim that the
informational nature of the work supports fair use without any inquiry into
the actual or potential economic harm of The Nation's particular
prepublication use. For this reason, the question of economic harm is properly
considered under the fourth statutory factor -- the effect on the value of or
market for the copyrighted work, 17 U.S.C. Section 107(4) -- and not as a
presumed element of the "nature" of the copyright.
The Amount and Substantiality of the Portion Used.
More difficult questions arise with respect to judgments about the
importance to this case of the amount and substantiality of the quotations
used. The Nation quoted only approximately 300 words from a manuscript of
more than 200,000 words, and the quotes are drawn from isolated passages
in disparate sections of the work. The judgment that this taking was
quantitatively "infinitesimal", 723 F.2d, at 209, does not dispose of the
inquiry, however. An evaluation of substantiality in qualitative terms is
also required. Much of the quoted material was Mr. Ford's matter-of-fact
representation of the words of others in conversations with him; such
quotations are "arguably necessary adequately to convey the facts", ante,
at 563, and are not rich in expressive content. Beyond these quotations
a portion of the quoted material was drawn from the most poignant
expression in the Ford manuscript; in particular The Nation made use of
six examples of Mr. Ford's expression of his reflections on events or
perceptions about President Nixon. {22'} The fair use inquiry turns on the
propriety of the use of these quotations with admittedly strong expressive
content. {22'}
The Court holds that "in view of the expressive value of the excerpts
and their key role in the infringing work," this third statutory factor
disfavors a finding of fair use. {23'} To support this conclusion, the
Court purports to rely on the District Court factual findings that The
Nation had taken "the heart of the book." 557 F.Supp. 1062, 1072 (SDNY 1983).
This reliance is misplaced, and would appear to be another result of the
Court's failure to distinguish between information and literary form.
When the District Court made this finding, it was evaluating not the quoted
words at issue here but the "totality" of the information and reflective
commentary in the Ford work. Ibid. The vast majority of what the District
Court considered the heart of the Ford work, therefore, consisted of ideas and
information The Nation was free to use. It may well be that, as a qualitative
matter, most of the value of the manuscript did lie in the information and
ideas The Nation used. But appropriation of the "heart" of the manuscript in
this sense is irrelevant to copyright analysis because copyright does not
preclude a second author's use of information and ideas.
Perhaps tacitly recognizing that reliance on the District Court finding is
unjustifiable, the Court goes on to evaluate independently the quality of the
expression appearing in The Nation's article. The Court states that "[the]
portions actually quoted were selected by Mr. Navasky as among the most
powerful passages." Ante, at 565. On the basis of no more than this
observation, and perhaps also inference from the fact that the quotes were
important to The Nation's article, {24'} the Court adheres to its conclusion
that The Nation appropriated the heart of the Ford manuscript.
At least with respect to the six particular quotes of Mr. Ford's
observations and reflections about President Nixon, I agree with the Court's
conclusion that The Nation appropriated some literary form of substantial
quality. I do not agree, however, that the substantiality of the expression
taken was clearly excessive or inappropriate to The Nation's news reporting
purpose.
Had these quotations been used in the context of a critical book review of the
Ford work, there is little question that such a use would be fair use within
the meaning of Section 107 of the Act. The amount and substantiality of
the use -- in both quantitative and qualitative terms -- would have certainly
been appropriate to the purpose of such a use. It is difficult to see how the
use of these quoted words in a news report is less appropriate. The Court
acknowledges as much: "[Even] substantial quotations might qualify as a fair
use in a review of a published work or a news account of a speech that had
been delivered to the public." See ante, at 564. With respect to the
motivation for the pardon and the insights into the psyche of the fallen
President, for example, Mr. Ford's reflections and perceptions are so laden
with emotion and deeply personal value judgments that full understanding is
immeasurably enhanced by reproducing a limited portion of Mr. Ford's own
words. The importance of the work, after all, lies not only in revelation
of previously unknown fact but also in revelation of the thoughts, ideas,
motivations, and fears of two Presidents at a critical moment in our
national history. Thus, while the question is not easily resolved, it is
difficult to say that the use of the six quotations was gratuitous in
relation to the news reporting purpose.
Conceding that even substantial quotation is appropriate in a news report of
a published work, the Court would seem to agree that this quotation was not
clearly inappropriate in relation to The Nation's news reporting purpose. For
the Court, the determinative factor is again that the substantiality of the
use was inappropriate in relation to the prepublication timing of that
use. That is really an objection to the effect of this use on the market for
the copyrighted work, and is properly evaluated as such.
The Effect on the Market.
The Court correctly notes that the effect on the market "is undoubtedly
the single most important element of fair use." Ante, at 566, citing 3
Nimmer Section 13.05[A], at 13-76, and the Court properly focuses on
whether The Nation's use adversely affected Harper & Row's serialization
potential and not merely the market for sales of the Ford work itself.
Ante, at 566-567. Unfortunately, the Court's failure to distinguish
between the use of information and the appropriation of literary form
badly skews its analysis of this factor.
For purposes of fair use analysis, the Court holds, it is sufficient that the
entire article containing the quotes eroded the serialization market potential
of Mr. Ford's work. Ante, at 567. On the basis of Time's cancellation of its
serialization agreement, the Court finds that "[rarely] will a case of
copyright infringement present such clear-cut evidence of actual damage".
Ibid. In essence, the Court finds that by using some quotes in a story about
the Nixon pardon, The Nation "competed for a share of the market of
prepublication excerpts" ante, at 568, because Time planned to excerpt from
the chapters about the pardon.
The Nation's publication indisputably precipitated Time's eventual
cancellation. But that does not mean that The Nation's use of the 300 quoted
words caused this injury to Harper & Row. Wholly apart from these quoted
words, The Nation published significant information and ideas from the Ford
manuscript. If it was this publication of information, and not the
publication of the few quotations, that caused Time to abrogate its
serialization agreement, then whatever the negative effect on the
serialization market, that effect was the product of wholly legitimate
activity.
The Court of Appeals specifically held that "the evidence does not support a
finding that it was the very limited use of expression per se which led to
Time's decision not to print excerpts." [*603] 723 F.2d, at 208. I fully
agree with this holding. If The Nation competed with Time, the competition was
not for a share of the market in excerpts of literary form but for a share of
the market in the new information in the Ford work. That the information, and
not the literary form, represents most of the real value of the work in this
case is perhaps best revealed by the following provision in the contract
between Harper & Row and Mr. Ford:
"Author acknowledges that the value of the rights granted to publisher
hereunder would be substantially diminished by Author's public
discussion of the unique information not previously disclosed about
Author's career and personal life which will be included in the Work,
and Author agrees that Author will endeavor not to disseminate any
such information in any media, including television, radio and
newspaper and magazine interviews prior to the first publication
of the work hereunder." App. 484.
The contract thus makes clear that Harper & Row sought to benefit
substantially from monopolizing the initial revelation of information
known only to Ford.
Because The Nation was the first to convey the information in this case, it
did perhaps take from Harper & Row some of the value that publisher sought
to garner for itself through the contractual arrangement with Ford and
the license to Time. Harper & Row had every right to seek to monopolize
revenue from that potential market through contractual arrangements but it has
no right to set up copyright as a shield from competition in that market
because copyright does not protect information. The Nation had every right to
seek to be the first to publish that information. {25'}
Balancing the Interests.
Once the distinction between information and literary form is made clear,
the statutorily prescribed process of weighing the four statutory fair use
factors discussed above leads naturally to a conclusion that The Nation's
limited use of literary form was not an infringement. Both the purpose of
the use and the nature of the copyrighted work strongly favor the fair use
defense here. The Nation appropriated Mr. Ford's expression for a purpose
Congress expressly authorized in Section 107 and borrowed from a work whose
nature justifies some appropriation to facilitate the spread of information.
The factor that is perhaps least favorable to the claim of fair use is the
amount and substantiality of the expression used. Without question, a
portion of the expression appropriated was among the most poignant in the
Ford manuscript. But it is difficult to conclude that this taking was
excessive in relation to the news reporting purpose. In any event, because
the appropriation of literary form -- as opposed to the use of information
-- was not shown to injure Harper & Row's economic interest, any uncertainty
with respect to the propriety of the amount of expression borrowed should
be resolved in favor of a finding of fair use. {26'} In light of the
circumscribed scope of the quotation in The Nation's article and the
undoubted validity of the purpose motivating that quotation, I must conclude
that the Court has simply adopted an exceedingly narrow view of fair use
in order to impose liability for what was in essence a taking of
unprotected information.
III
The Court's exceedingly narrow approach to fair use permits Harper & Row to
monopolize information. This holding "[effects] an important extension of
property rights and a corresponding curtailment in the free use of knowledge
and of ideas." International News Service v. Associated Press, 248 U.S., at
263 (Brandeis, J., dissenting). The Court has perhaps advanced the ability of
the historian -- or at least the public official who has recently left office
-- to capture the full economic value of information in his or her possession.
But the Court does so only by risking the robust debate of public issues that
is the "essence of self-government." Garrison v. Louisiana, 379 U.S., at
74-75. The Nation was providing the grist for that robust debate. The Court
imposes liability upon The Nation for no other reason than that The Nation
succeeded in being the first to provide certain information to the public.
I dissent.
====
FOOTNOTES:
{1} Section 106 provides in pertinent part:
"Subject to sections 107 through 118, the owner of copyright under
this title has the exclusive rights to do and authorize any of the
following:
"(1) to reproduce the copyrighted work in copies . . . ;
"(2) to prepare derivative works based upon the copyrighted work;
"(3) to distribute copies . . . of the copyrighted work to the
public. . . ."
{2} Section 107 states:
"Notwithstanding the provisions of section 106, the fair use of a
copyrighted work . . . for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright. In
determining whether the use made of a work in any particular case
is a fair use the factors to be considered shall include --
"(1) the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational purposes;
"(2) the nature of the copyrighted work;
"(3) the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and
"(4) the effect of the use upon the potential market for or value
of the copyrighted work."
{3} Professor Nimmer notes: "[Perhaps] no more precise guide can be stated
than Joseph McDonald's clever paraphrase of the Golden Rule: 'Take not from
others to such an extent and in such a manner that you would be resentful
if they so took from you.'" 3 Nimmer Section 13.05[A], at 13-66, quoting
McDonald, Non-infringing Uses, 9 Bull. Copyright Soc. 466, 467 (1962).
This "equitable rule of reason", Sony Corp. of America v. Universal City
Studios, Inc., 464 U.S., at 448, "permits courts to avoid rigid application
of the copyright statute when, on occasion, it would stifle the very
creativity which that law is designed to foster." Iowa State University
Research Foundation, Inc. v. American Broadcasting Cos., 621 F.2d 57, 60
(CA2 1980). See generally L. Seltzer, Exemptions and Fair Use in Copyright
18-48 (1978).
{4} See Latman 7; Strauss, Protection of Unpublished Works (1957),
reprinted as Study No. 29 in Copyright Law Revision Studies Nos. 29-31,
prepared for the Senate Committee on the Judiciary, 86th Cong., 2d Sess.,
4, n. 32 (1961) (citing cases); R. Shaw, Literary Property in the United
States 67 (1950) ("[There] can be no 'fair use' of unpublished material");
Ball 260, n. 5 ("[The] doctrine of fair use does not apply to unpublished
works"); A. Weil, American Copyright Law Section 276, p. 115 (1917) (the
author of an unpublished work "has, probably, the right to prevent even
a 'fair use' of the work by others"). Cf. M. Flint, A User's Guide to
Copyright para. 10.06 (1979) (United Kingdom) ("no fair dealing with
unpublished works"); Beloff v. Pressdram Ltd., [1973] All E. R. 241,
263 (Ch. 1972) (same).
{5} See, e. g., Wheaton v. Peters, 8 Pet. 591, 657 (1834) (distinguishing
the author's common-law right to "obtain redress against anyone who . . . by
improperly obtaining a copy [of his unpublished work] endeavors to realize
a profit by its publication" from rights in a published work, which are
prescribed by statute); Press Publishing Co. v. Monroe, 73 F. 196, 199 (CA2),
writ of error dism'd, 164 U.S. 105 (1896); Stanley v. Columbia Broadcasting
System, Inc., 35 Cal. 2d 653, 660-661, 221 P. 2d 73, 77-78 (1950) (en banc);
Golding v. RKO Radio Pictures, Inc., 193 P. 2d 153, 162 (Cal. App. 1948) ("An
unauthorized appropriation of [an unpublished work] is not to be neutralized
on the plea that 'it is such a little one'"), aff'd, 35 Cal. 2d 690, 221 P. 2d
95 (1950); Fendler v. Morosco, 253 N. Y. 281, 291, 171 N. E. 56, 59 ("Since
plaintiff had not published or produced her play, perhaps any use that others
made of it might be unfair"), rehearing denied, 254 N. Y. 563, 173 N. E. 867
(1930).
{6} It bears noting that Congress in the Copyright Act recognized a public
interest warranting specific exemptions in a number of areas not within
traditional fair use, see, e. g., 17 U.S.C. Section 115 (compulsory license
for records); Section 105 (no copyright in Government works). No such
exemption limits copyright in personal narratives written by public
servants after they leave Government service.
{7} The dissent excuses The Nation's unconsented use of an unpublished
manuscript as "standard journalistic practice", taking judicial notice of New
York Times articles regarding the memoirs of John Erlichman, John Dean's
"Blind Ambition", and Bernstein and Woodward's "The Final Days" as proof of
such practice. Post, at 590-593, and n. 14. Amici curiae sought to bring this
alleged practice to the attention of the Court of Appeals for the Second
Circuit, citing these same articles. The Court of Appeals, at Harper & Row's
motion, struck these exhibits for failure of proof at trial, Record Doc. No.
19; thus they are not a proper subject for this Court's judicial notice.
{8} See Appendix to this opinion, post, p. 570. The Court of Appeals found
that only "approximately 300 words" were copyrightable but did not specify
which words. The court's discussion, however, indicates it excluded from
consideration those portions of The Nation's piece that, although copied
verbatim from Ford's manuscript, were quotes attributed by Ford to third
persons and quotations from Government documents. At oral argument, counsel
for The Nation did not dispute that verbatim quotes and very close paraphrase
could constitute infringement. Tr. of Oral Arg. 24-25. Thus the Appendix
identifies as potentially infringing only verbatim quotes or very close
paraphrase and excludes from consideration Government documents and words
attributed to third persons. The Appendix is not intended to endorse any
particular rule of copyrightability but is intended merely as an aid to
facilitate our discussion.
{9} Economists who have addressed the issue believe the fair use exception
should come into play only in those situations in which the market fails or
the price the copyright holder would ask is near zero. See, e. g., T. Brennan,
Harper & Row v. The Nation, Copyrightability and Fair Use, Dept. of Justice
Economic Policy Office Discussion Paper 13-17 (1984); Gordon, Fair Use as
Market Failure: A Structural and Economic Analysis of the Betamax Case and
its Predecessors, 82 Colum. L. Rev. 1600, 1615 (1982). As the facts here
demonstrate, there is a fully functioning market that encourages the creation
and dissemination of memoirs of public figures. In the economists' view,
permitting "fair use" to displace normal copyright channels disrupts the
copyright market without a commensurate public benefit.
{1'} In bypassing the threshold issue, the Court certainly does not intimate
that The Nation's use of ideas and information other than the quoted material
would constitute a violation of the copyright laws. At one point in its
opinion the Court correctly states the governing principles with respect to
the copyrightability question. See ante, at 556 ("No author may copyright
his ideas or the facts he narrates").
{2'} Section 102(b) states: "In no case does copyright protection for an
original work of authorship extend to any idea, procedure, process, system,
method of operation, concept, principle, or discovery, regardless of the form
in which it is described, explained, illustrated, or embodied in such work."
17 U.S.C. Section 102(b). The doctrines of fair use, see 17 U.S.C. Section
107, and substantial similarity, see 3 M. Nimmer, Copyright Section 13.05
(1984) (hereinafter Nimmer), also function to accommodate these competing
considerations. See generally Gorman, Fact or Fancy? The Implications for
Copyright, 29 J. Copyright Soc. 560 (1982).
{3'} By the same token, an author may not claim copyright in statements
made by others and reported verbatim in the author's work. See Suid v.
Newsweek Magazine, 503 F.Supp. 146, 148 (DC 1980); Rokeach v. Avco Embassy
Pictures Corp., 197 USPQ 155, 161 (SDNY 1978).
{4'} It would be perverse to prohibit government from limiting the financial
resources upon which a political speaker may draw, see FEC v. National
Conservative Political Action Committee, 470 U.S. 480 (1985), but to permit
government to limit the intellectual resources upon which that speaker may
draw.
{5'} The protection of literary form must proscribe more than merely
word-for-word appropriation of substantial portions of an author's work.
Otherwise a plagiarist could avoid infringement by immaterial variations.
Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (CA2 1930). The step
beyond the narrow and clear prohibition of wholesale copying is, however, a
venture onto somewhat uncertain terrain. Compare Hoehling v. Universal City
Studios, Inc., 618 F.2d 972, 974 (CA2 1980), with Wainwright Securities Inc.
v. Wall Street Transcript Corp., 558 F.2d 91 (CA2 1977). See also 1 Nimmer
Section 1.10B, at 1-73 -- 1-74 ("It is the particular selection and
arrangement of ideas, as well as a given specificity in the form of their
expression, which warrants protection"); Chafee, Reflections on the Law of
Copyright: I, 45 Colum. L. Rev. 503, 513 (1945) ("[The] line . . . [lies]
somewhere between the author's idea and the precise form in which he wrote
it down. . . . [The] protection covers the 'pattern' of the work"); Gorman,
supra, at 593 ("too literal and substantial copying and paraphrasing of
. . . language").
{6'} The inquiry into the substantiality of appropriation has a quantitative
and a qualitative aspect.
{7'} Neither the District Court nor the dissent in the Court of Appeals
approached the question in this way. Despite recognizing that this material
was not "per se copyrightable," the District Court held that the "totality of
these facts and memoranda collected together with Mr. Ford's reflections . . .
is protected by the copyright laws." 557 F.Supp. 1067, 1072-1073 (SDNY 1983).
The dissent in the Court of Appeals signaled approval of this approach. 723
F.2d 195, 213-214 (CA2 1983) (Meskill, J., dissenting). Such an approach must
be rejected. Copyright protection cannot be extended to factual information
whenever that information is interwoven with protected expression (purportedly
in this case Mr. Ford's reflections) into an expressive "totality." Most works
of history or biography blend factual narrative and reflective or speculative
commentary in this way. Precluding subsequent use of facts so presented cannot
be squared with the specific legislative intent, expressed in both House and
Senate Reports, that "[copyright] does not preclude others from using the . .
. information revealed by the author's work." See S. Rep. No. 93-983, pp.
107-108 (1974); H. R. Rep. No. 94-1476, pp. 56-57 (1976). The core purposes of
copyright would be thwarted and serious First Amendment concerns would arise.
An author could obtain a monopoly on narration of historical events simply
by being the first to discuss them in a reflective or analytical manner.
{8'} For example, the Ford manuscript expends several hundred words
discussing relations between Mr. Ford and Ronald Reagan in the weeks
before the Republican Convention of 1976:
"About a month before the convention, my aides had met with Reagan's
representatives to discuss the need for party unity. And they had
reached an agreement. At the end of the Presidential balloting, the
winner would go to the loser's hotel suite and congratulate his
opponent for waging a fine campaign. Together, they would appear
at a press conference and urge all Republicans to put aside their
differences and rally behind the ticket. That was the only way we
could leave Kansas City with a hope of victory. When it appeared I
was going to win, Sears contacted Cheney and refined the scenario.
He insisted on two conditions. The first was that I had to see Reagan
alone; there could be no aides from either camp in the room. Secondly,
under no circumstances should I offer him the nomination to be Vice
President. Reagan had said all along that he wasn't interested in the
job. He had meant what he said. If I tried to talk him out of it, he
would have to turn me down, and that would be embarrassing because it
would appear that he was refusing to help the GOP. When Cheney relayed
those conditions to me, I agreed to go along with them. I would need
Reagan's assistance in the fall campaign. It would be stupid to anger
him or his followers at this moment.
"Later I was told that just before my arrival at the Californian's
hotel, one of his closest advisors, businessman Justin Dart, had urged
him to say yes if I asked him to be my running mate, Regardless of
anything he'd said before, Dart had insisted, it was his patriotic
duty to accept the number two post. Finally, according to Dart, Reagan
had agreed. But at the time, no one mentioned this new development to
me. Had I been aware of the Dart-Reagan conversation, would I have
chosen him? I can't say for sure -- I thought his challenge had been
divisive, and that it would probably hurt the party in the fall
campaign; additionally, I resented some of the things that he'd been
saying about me and my Administration's policies -- but I certainly
would have considered him." App. 628-629.
The Nation encapsulated this discussion in the following sentence: "Ford also
writes that, but for a misunderstanding, he might have selected Ronald Reagan
as his 1976 running mate." Id., at 627. In most other instances, a single
sentence or brief paragraph in The Nation's article similarly conveys the
gist of a discussion in the Ford manuscript that runs into the hundreds of
words. See generally Addendum B to Defendant's Post-Trial Memorandum, id.,
at 627-704.
{9'} For example, at one point The Nation's article reads: "Ford told a
Jackson, Mich., luncheon audience later in the day that the President was
not guilty of an impeachable offense." Ante, at 572. The portion of the Ford
manuscript discussed stated: "Representative Thad Cochran . . . escorted me
to a luncheon at the Jackson Hilton Hotel. During the luncheon I repeated
my assertion that the President was not guilty of an impeachable offense."
App. 649. In several other places the language in The Nation's article
parallels Mr. Ford's original expression to a similar degree. Compare ante,
at 570-579, with App. 627-704.
{10'} Often the paraphrasing was of statements others had made to Mr.
Ford. E. g., ante, at 571 ("He could 'ride it out' or he could resign,
Haig said"). See generally ante, at 570-579. No copyright can be asserted
in the verbatim representation of such statements of others. 17 U.S.C.
Section 102. See Suid v. Newsweek Magazine, 503 F.Supp., at 148; Rokeach
v. Avco Embassy Pictures Corp., 197 USPQ, at 161. Other paraphrased material
came from Government documents in which no copyright interest can be
claimed. For example, the article quotes from a memorandum prepared by
Henry S. Ruth, Jr., in his official capacity as assistant to Watergate
Special Prosecutor Leon Jaworski. See ante, at 573. This document is a
work of the United States Government. See 17 U.S.C. Section 105.
{11'} According to an exhibit Harper & Row introduced at trial the pages
in the Ford manuscript that correspond to consecutive sections of the
article are as follows: 607-608, 401, 44, 496, 1, 2-3, 4, 8, 7, 4-5, 5,
5-6, 8, 14, 15, 16, 16, 18, 19, 21, 266, 236, 246, 248, 249, 238-239, 239,
243, 245, 246, 250, 250-251, 251, 252, 253, 254, 256, 298, 299, 46, 494,
537, 155-156, 216, 415, 416, 416, 53-54, 57. See App. to Pet. for Cert.
E-1 to E-41.
{12'} In one sense The Nation "copied" Mr. Ford's selection of facts
because it reported on only those facts Mr. Ford chose to select for
presentation. But this tracking of a historian's selection of facts
generally should not supply the basis for a finding of infringement.
See Myers v. Mail & Express Co., 36 Copyright Off. Bull. 478 (SDNY 1919)
(L. Hand, J.). To hold otherwise would be to require a second author to
duplicate the research of the first author so as to avoid reliance on
the first author's judgment as to what facts are particularly pertinent.
"'It is just such wasted effort that the proscription against the copyright
of ideas and facts . . . are designed to prevent.'" Miller v. Universal
City Studios, Inc., 650 F.2d 1365, 1371 (CA5 1981), quoting Rosemont
Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 310 (CA2 1966).
See Gorman, 29 J. Copyright Soc., at 594-595.
{13'} This congressional limitation on the scope of copyright does not
threaten the production of history. That this limitation results in
significant diminution of economic incentives is far from apparent. In any
event noneconomic incentives motivate much historical research and writing.
For example, former public officials often have great incentive to "tell
their side of the story." And much history is the product of academic
scholarship. Perhaps most importantly, the urge to preserve the past is
as old as humankind.
{14'} E.g., N.Y. Times, Aug. 2, 1984, p. C20, col. 5 (article about
revelations in forthcoming biography of Cardinal Spellman); N. Y. Times, Dec.
10, 1981, p. A18, col. 1 (article about revelations in forthcoming book by
John Erlichman); N. Y. Times, Sept. 29, 1976, p. 1, col. 2 (article about
revelations in forthcoming autobiography of President Nixon); N. Y. Times,
Mar. 27, 1976, p. 9, col. 1 (article about revelations concerning President
Nixon's resignation in forthcoming book The Final Days); N. Y. Times, Sept.
23, 1976, p. 36, col. 1 (article about revelations concerning President Ford
in forthcoming book Blind Ambition by John Dean).
{15'} The Court properly rejects the argument that this is not legitimate
news. Courts have no business making such evaluations of journalistic
quality. See ante, at 561. The Court also properly rejects the argument
that this use is nonproductive. See ibid. News reporting, which encompasses
journalistic judgment with respect to selection, organization, and
presentation of facts and ideas, is certainly a productive use. See Sony
Corp. of America v. Universal City Studios, Inc., 464 U.S., at 478-479
(BLACKMUN, J., dissenting).
{16'} To support this claim the Court refers to some language in Sony Corp.
of America v. Universal City Studios, Inc., supra, to the effect that
"every commercial use of copyrighted material is presumptively an unfair
exploitation". Id., at 451. See ante, at 562. Properly understood, this
language does not support the Court's position in this case. The Court in Sony
Corp. dealt with a use -- video recording of copyrighted television programs
for personal use -- about which Congress had expressed no policy judgment.
When a court evaluates uses that Congress has not specifically addressed,
the presumption articulated in Sony Corp. is appropriate to effectuate the
congressional instruction to consider "whether such use is of a commercial
nature." 17 U.S.C. Section 107(1). Also, the Court made that statement in the
course of evaluating a use that appropriated the entirety of the copyrighted
work in a form identical to that of the original; the presumption articulated
may well have been intended to apply to takings under these circumstances.
But, in light of the specific language of Section 107, this presumption is
not appropriately employed to negate the weight Congress explicitly gave to
news reporting as a justification for limited use of another's expression.
{17'} This case is a far cry from Time Inc. v. Bernard Geis Associates,
293 F.Supp. 130, 146 (SDNY 1968), the only case the Court cites to support
consideration of The Nation's purported bad faith. In that case the publisher
claiming fair use had personally stolen film negatives from the offices of
Time and then published graphic representations of the stolen photographic
images. And the court found fair use despite these circumstances. Ibid.
{18'} The Court also discounts this factor in part because the appropriation
of The Nation, "focusing on the most expressive elements of the work, exceeds
that necessary to disseminate the facts." Ante, at 564. Whatever the propriety
of this view of The Nation's use, it is properly analyzed under the third
statutory fair use factor -- the amount and substantiality of the expression
taken in relation to the copyrighted work as a whole, 17 U.S.C. Section
107(3) -- and will be analyzed as such in this opinion.
{19'} The Court lays claim to specific congressional intent supporting the
presumption against prepublication fair use. See ante, at 553, quoting S. Rep.
No. 94-473, p. 64 (1975); ante, at 551, n. 4, 553-554. The argument based on
congressional intent is unpersuasive for three reasons.
First, the face of the statute clearly allows for prepublication fair use.
The right of first publication, like all other rights Section 106 of the Act
specifically grants copyright owners, is explicitly made "subject to section
107", the statutory fair use provision. See 17 U.S.C. Section 106.
Second, the language from the Senate Report on which the Court relies so
heavily, see ante, at 553, simply will not bear the weight the Court places on
it. The Senate Report merely suggests that prepublication photocopying for
classroom purposes will not generally constitute fair use when the author has
an interest in the confidentiality of the unpublished work, evidenced by the
author's "deliberate choice" not to publish. Given that the face of Section
106 specifically allows for prepublication fair use, it would be unfaithful
to the intent of Congress to draw from this circumscribed suggestion in the
Senate Report a blanket presumption against any amount of prepublication
fair use for any purpose and irrespective of the effect of that use on the
copyright owner's privacy, editorial, or economic interests.
Third, the Court's reliance on congressional adoption of the common law is
also unpersuasive. The common law did not set up the monolithic barrier to
prepublication fair use that the Court wishes it did. See, e. g., Estate of
Hemingway v. Random House, Inc., 53 Misc. 2d 462, 279 N.Y.S.2d 51 (S.Ct.
N.Y. Cty.), aff'd, 29 App. Div. 2d 633, 285 N.Y.S.2d 568 (1st Jud. Dept.
1967), aff'd on other grounds, 23 N.Y.2d 341, 244 N.E.2d 250 (1968). The
statements of general principle the Court cites to support its contrary
representation of the common law, see ante, at 551, n. 4, are themselves
unsupported by reference to substantial judicial authority. Congressional
endorsement of the common law of fair use should not be read as adoption of
any rigid presumption against prepublication use. If read that way, the broad
statement that the Copyright Act was intended to incorporate the common law
would in effect be given the force of nullifying Congress' repeated
methodological prescription that definite rules are inappropriate and
fact-specific analysis is required. The broad language adopting the common-law
approach to fair use is best understood as an endorsement of the essential
fact-specificity and case-by-case methodology of the common law of fair use.
{20'} The Court finds the right of first publication particularly weighty
because it encompasses three important interests: (i) a privacy interest
in whether to make expression public at all; (ii) an editorial interest
in ensuring control over the work while it is being groomed for public
dissemination; and (iii) an economic interest in capturing the full
remunerative potential of initial release to the public. Ante, at 552-555.
{21'} Perhaps most inappropriate is the Court's apocalyptic prophesy that
permitting any prepublication use for news reporting will "effectively destroy
any expectation of copyright protection in the work of a public figure." Ante,
at 557. The impact of a prepublication use for purposes of news reporting will
obviously vary with the circumstances. A claim of news reporting should not be
a fig leaf for substantial plagiarism, see Wainwright Securities Inc. v. Wall
Street Transcript Corp., 558 F.2d 91 (CA2 1977), but there is no warrant for
concluding that prepublication quotation of a few sentences will usually
drain all value from a copyright owner's right of first publication.
{22'} These six quotes are:
(1) "'[Compassion] for Nixon as an individual hadn't prompted my decision at
all.' Rather, he did it because he had 'to get the monkey off my back one way
or the other.'" Ante, at 572-573.
(2) "Nixon 'would not spend the time quietly in San Clemente,' and 'it would
be virtually impossible for me to direct public attention on anything else.'"
Ante, at 573.
(3) "'I learned that public policy often took precedence over a rule of law.
Although I respected the tenet that no man should be above the law, public
policy demanded that I put Nixon -- and Watergate -- behind us as quickly as
possible.'" Ante, at 575.
(4) "'If I made the trip it would remind everybody of Watergate and the
pardon. If I didn't people would say I lacked compassion.'" Ibid.
(5) "He was stretched out flat on his back. There were tubes in his nose and
mouth, and wires led from his arms, chest and legs to machines with orange
lights that blinked on and off. His face was ashen, and I thought I had never
seen anyone closer to death." Ibid.
(6) "'A terribly proud man,' writes Ford, 'he detested weakness in other
people. I'd often heard him speak disparagingly of those whom he felt to be
soft and expedient. (Curiously, he didn't feel that the press was weak.
Reporters, he sensed, were his adversaries. He knew they didn't like him, and
he responded with reciprocal disdain.)' . . . 'His pride and personal contempt
for weakness had overcome his ability to tell the difference between right and
wrong.' . . . 'Nixon was out of touch with reality.'" Ante, at 578.
{23'} The Court places some emphasis on the fact that the quotations from
the Ford work constituted a substantial portion of The Nation's article.
Superficially, the Court would thus appear to be evaluating The Nation's
quotation of 300 words in relation to the amount and substantiality of
expression used in relation to the second author's work as a whole. The
statute directs the inquiry into "the amount and substantiality of the portion
used in relation to the copyrighted work as a whole", 17 U.S.C. Section 107(3)
(emphasis added). As the statutory directive implies, it matters little
whether the second author's use is 1- or 100-percent appropriated expression
if the taking of that expression had no adverse effect on the copyrighted
work. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417
(1984) (100% of expression taken). I presume, therefore, that the Court
considered the role of the expression "in the infringing work" only as
indirect evidence of the qualitative value of the expression taken in this
case. If read this way, the point dovetails with the Court's major argument
that The Nation appropriated the most valuable sentences of the work.
{24'} See n. 23', supra.
{25'} The Court's reliance on the principle that "an infringer who mingles
infringing and noninfringing elements 'must abide the consequences,'" ante,
at 567 (citation omitted), is misconceived. Once infringement of a Section
106 exclusive right has been shown, it is entirely appropriate to shift to the
infringer the burden of showing that the infringement did not cause all the
damages shown. But the question in this case is whether this particular use
infringed any Section 106 rights. Harper & Row may have shown actual damage
flowing from The Nation's use of information, but they have not shown actual
damage flowing from an infringement of a Section 106 exclusive right.
{26'} Had The Nation sought to justify a more substantial appropriation of
expression on a news reporting rationale, a different case might be presented.
The substantiality of the taking would certainly dilute the claim of need
to use the first author's exact words to convey a particular thought or
sentiment. Even if the claim of need were plausible, the equities would have
to favor the copyright owner in order to prevent erosion of virtually all
copyright protection for works of former public officials. In this case,
however, the need is manifest and the integrity of copyright protection for
the works of public officials is not threatened.