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Harper & Row v. Nation Enterprises, 471 U.S. 539, 105 S. Ct. 2218, 85 L. Ed. 2d 588.

Harper & Row Publishers obtained the rights to publish President Ford's upcoming memoirs. Time magazine contracted to preview the memoirs before publication. However, The Nation magazine obtained a copy of the manuscript and published quotes from it about the Nixon pardon. This caused Time to cancel its planned article. Harper sued The Nation for copyright infringement. While the lower courts found in favor of Harper, the Supreme Court reversed, finding that publication of excerpts from an upcoming work did not qualify as fair use.

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183 views1 page

Harper & Row v. Nation Enterprises, 471 U.S. 539, 105 S. Ct. 2218, 85 L. Ed. 2d 588.

Harper & Row Publishers obtained the rights to publish President Ford's upcoming memoirs. Time magazine contracted to preview the memoirs before publication. However, The Nation magazine obtained a copy of the manuscript and published quotes from it about the Nixon pardon. This caused Time to cancel its planned article. Harper sued The Nation for copyright infringement. While the lower courts found in favor of Harper, the Supreme Court reversed, finding that publication of excerpts from an upcoming work did not qualify as fair use.

Uploaded by

JMae Magat
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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Facts.

 Harper & Row Publishers, Inc. (Harper) (Plaintiff) obtained the rights to publish
President Ford’s memoirs, A Time to Heal. Time magazine contracted for the rights to
preview the work immediately before publication. Before the publication of the article by
Time magazine, Nation Enterprises (Defendant), publisher of The Nation magazine, got
a copy of the Ford manuscript. The Nation published an article that quoted the
manuscript about the Nixon pardon. Time then choose not to use the article as planned
and canceled its contract with Harper (Plaintiff). Plaintiff sued Defendant for copyright
infringement. The district court awarded damages for infringement. The Second Circuit
reversed, holding Nation Enterprises’ (Defendant) use to be a “fair use†under 17
U.S.C.107. The United States Supreme Court granted certiorari.

Issue. Does publication of parts of a work soon to be published qualify as fair use?

Held. (O’Connor, J.) No. Publication of parts of a work soon to be published does not
qualify as fair use. The idea behind the fair use doctrine as it was framed in the common
law was that one using a copyrighted work should not have to get a copyright holder’s
permission to use the copyrighted work in a case where a reasonable copyright holder
would in fact grant permission. Section 107 of the Copyright Act, which codified the
doctrine, expressly noted in its legislative history that it was not meant to change the
common law. As for reasonableness, it is not reasonable to expect a copyright holder to
let another person “scoop†it by publishing his material ahead of time. Regarding
the language of § 107, the section lists four points to consider in applying the doctrine.
The two factors most relevant here are purpose of the use and effect on the market.
Usually, a fair use will not be one of economic competition with the copyright holder,
which is exactly what prior publication of a copyrighted work is. In addition, the effect on
the market of such a use is shown by what happened here: it greatly decreases the
market value of the copyrighted work. Therefore, the conclusion in this case, and in
almost all cases, is that prior publication of a work pending publication will not be a fair
use. Reversed.

Discussion. The common law doctrine of “fair use†is well established. The


Supreme Court recognized the doctrine as early as 1841. In Folsom v. Marsh, 9 F. Cas.
342 (1841), Justice Story allowed use of quotes by a reviewer as a “fair use.†A
major application of the doctrine remains to be the use of quotes in criticism of a work.

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