Facts of the Case

In 1977, former President Gerald Ford contracted with Harper & Row, Publishers, Inc. to publish his memoirs. Harper & Row negotiated a prepublication agreement with Time Magazine for the right to excerpt 7,500 words from Ford's account of his pardon of former President Richard Nixon. Before Time released its article, an unauthorized source provided The Nation Magazine with the unpublished Ford manuscript. Subsequently, The Nation, using approximately 300 words from the manuscript, scooped Time. Harper & Row sued The Nation, alleging violations of the Copyright Revision Act of 1976. The District Court held that The Nation's use of the copyrighted material constituted infringement. In reversing, the Court of Appeals held that Nation's use of the copyrighted material was sanctioned as a fair use.

Question

Did the Copyright Revision Act of 1976's fair use doctrine sanction The Nation's unauthorized use of quotations from former President Gerald Ford's unpublished manuscript?

Conclusion

No. In a 6-3 opinion delivered by Justice Sandra Day O'Connor, the Court held that The Nation's use of verbatim excerpts from the unpublished manuscript was not a fair use. The Court reasoned that the unpublished nature of a work is a key, though not necessarily determinative, factor tending to negate a defense of fair use. "Under ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use," wrote Justice O'Connor. Accordingly, the Court concluded that the four statutory factors relevant to determining whether the use was fair were not satisfied. In his dissent, Justice William J. Brennan, Jr., argued that the Court was advancing the protection of the copyright owner's economic interest "through an exceedingly narrow definition of the scope of fair use."