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?
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.
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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.