Note by Owen B. Cooper
Petitioners Harper & Row Publishers, Inc. and Readers Digest Association, Inc., filed suit against Nation Enterprises, the publisher of a political commentary magazine, alleging violations of the Copyright Revision Act of 1976 (Copyright Act). Petitioners premised their allegations upon The Nation's unauthorized publication of an article, which included facts, paraphrases, and quotations from the then unpublished memoirs of former President Ford. Ford had granted petitioners the copyright to the work, including the right to license the use of prepublication excerpts or first serial rights. Petitioners then sold the exclusive right to extract portions of the memoirs to Time magazine for use in an article that was to appear approximately one week before distribution of the book itself. Under this agreement, Time initially paid petitioners $12,500 and was to pay an additional $12,500 upon publication of its article if the material had not yet appeared in print. After The Nation published its article, Time cancelled its piece and declined to make the final payment due under its agreement with petitioners. Explaining that the historical information in the Ford text intertwined with the author's expression to form a copyrighted ‘totality,’ the district court found an infringement of copyright. The Second Circuit rejected the notion of a copyrightable ‘totality’ combining fact and expression and held that The Nation's limitd appropriation of expression was a ‘fair use’ news report of Ford's copyrighted work sanctioned by section 107 of the Copyright Act. The Supreme Court reversed and held that the fair use doctrine does not protect the unauthorized and commercially harmful use of unpublished copyrighted material. Harper & Row Publishers, Inc. v. Nation Enterprises, 105 S. Ct. 2218 (1985).
About the Author
Owen B. Cooper.
Citation
61 Tul. L. Rev. 415 (1986)