Former President Gerald Ford wanted to write his memoirs,
and he entered into a contract with Harper & Row to publish them. The
contract also gave Harper & Row first serial rights, which it then sold to Time Magazine. That means Time paid Harper & Row for the
exclusive right to publish parts of the book before it was released.
Then the editor of The
Nation purloined an advance copy of the manuscript. He had only a couple of
weeks before Time was due to print
its first excerpt, so he threw together a quick, 2,250 word article that quoted
the highlights of the book, including Ford’s reasons for pardoning Nixon. The Nation intended to scoop Time, and it did. Because Time’s exclusive rights were no longer
exclusive, it cancelled its agreement with Harper & Row.
Harper & Row sued The
Nation, claiming that the magazine had infringed the copyright in President
Ford’s book.
Copyrights exist to inspire creativity, not to suppress
it, so the copyright law protects fair uses. Since brief quotations in printed reviews are usually considered
fair, Nation Enterprises should have won the case. Right?
Wrong.
The
district court judge didn’t think The
Nation’s article was a fair use.
A divided panel (2-1 vote) of the 2nd Circuit Court of Appeals did,
so it reversed the decision. When the case went to the United States Supreme
Court, it got another divided panel—and another reversal in a 6-3 decision
saying the use was not fair. If the people who are paid to decide fair use
issues can’t agree, what’s a writer to do?
Unfortunately, there is no bright-line test. Still, courts
analyze four factors, and the Supreme Court discussed each of them
in the Harper & Row case.
- The purpose and character of the allegedly infringing use—in this case, of The Nation’s article. News reporting is normally a fair use, as are
criticism, comment, teaching, scholarship, research, and anything that
transforms the work. But normally doesn’t mean always. Here, the
magazine’s motive was purely commercial, and its “commentary” was
mostly a cut and paste of selections from the book. So even though the
piece was written as a news article, this first factor counted against it.
- The nature of the copyrighted work—meaning the nature of Ford’s autobiography. The more creative the
work, the more it deserves protecting. Fiction deserves the greatest
protection and most non-fiction the least, with creative non-fiction coming
somewhere in between. Under normal circumstances, this factor may have
been a wash. But Ford’s memoir had something else going for it. The Court
said that whether material has been published is part of its nature, and unpublished material deserves greater protection than published
material. Since the memoir was still unpublished when the article came out, The Nation lost on
this factor, too.
- The amount and substantiality of the portion used in relation to
the copyrighted work as a whole. Generally, the higher the
percentage borrowed, the less likely it is to be a fair use. That means
you can borrow more words from a book than from a poem. But it isn’t a
mathematical test, and if you borrow the heart of the work, it doesn’t
matter how small it is. The article used approximately 400 words from
President Ford’s 200,000 word memoir, but those words were the juiciest
parts of the manuscript. For that reason, this factor also counted against
the magazine.
- The effect upon the potential market for the copyrighted work. If the new work can be a substitute for the copyrighted work, it
is probably not a fair use. People who read the unauthorized article no
longer had a reason to buy Time to
get the information, so The Nation's
article was a substitute for the Time
article. The economic loss was obvious, too: Time cancelled its exclusivity
agreement and Ford’s publishers lost the money they would have been paid for it.
Another strike against The Nation.
All four factors weighed against The Nation, so it’s no surprise that it
lost the case. Still, three out of four isn’t an automatic loss, and one out of
four isn’t an automatic win. It all depends on the facts.
So if The
Nation’s article wasn’t a fair
use, what is?
Tune in next month for the Case of the Disappearing
Wind.
* * * * *
Kathryn Page Camp is a licensed attorney and full-time
writer. Her new book, Writers in
Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013) is available
from Amazon.com and other retailers. Kathryn is also the author of In God We Trust: How the Supreme Court’s
First Amendment Decisions Affect Organized Religion (FaithWalk Publishing
2006) and numerous articles. You can learn more about Kathryn at
www.kathrynpagecamp.com.
Kathryn, I believe this is my favorite so far. Thanks for this series, and especially for this installment.
ReplyDeleteJeff
Thanks, Jeff. And thanks for your Facebook plugs, too.
ReplyDeleteFascinating. Informative. So glad you post. Also, I've never heard the term "bright-line" test, only litmus test. I understand the meaning, but what's the reference?
ReplyDeleteMary, I answered your question as a regular comment, but I'm not sure that would make Hoosier Ink notify you. If using this reply function does send you an e-mail, you can go to the blog and read the regular comment I posted. Kathryn.
DeleteMary, a bright line test (or bright line rule) is one that is clear. If there is a bright yellow line down the middle of the road, it is easier to know which side you are on than if the line is gray. Similarly, if there is a bright line legal test, it is easy to see the line between legal and illegal. If there is no bright line test, it is more like the gray line down the middle of the road. While some uses are clearly fair and some are clearly not, the ones closer to the middle are harder to judge. Maybe the term is used more by lawyers than by laypeople.
ReplyDelete