Harper & Row v. Nation Enterprises/Dissent Brennan
The Court holds that The Nation's quotation of 300 words from the unpublished 200,000-word manuscript of President Gerald R. Ford infringed the copyright in that manuscript, even though the quotations related to a historical event of undoubted significance—the resignation and pardon of President Richard M. Nixon. Although the Court pursues the laudable goal of protecting "the economic incentive to create and disseminate ideas," ante, at 558, this zealous defense of the copyright owner's prerogative will, I fear, stifle the broad dissemination of ideas and information copyright is intended to nurture. Protection of the copyright owner's economic interest is achieved in this case through an exceedingly narrow definition of the scope of fair use. The progress of arts and sciences and the robust public debate essential to an enlightened citizenry are ill served by this constricted reading of the fair use doctrine. See 17 U.S.C. 107. I therefore respectfully dissent.
This case presents two issues. First, did The Nation's use of material from the Ford manuscript in forms other than direct quotation from that manuscript infringe Harper & Row's copyright. Second, did the quotation of approximately 300 words from the manuscript infringe the copyright because this quotation did not constitute "fair use" within the meaning [p580] of 107 of the Copyright Act. 17 U.S.C. 107. The Court finds no need to resolve the threshold copyrightability issue. The use of 300 words of quotation was, the Court finds, beyond the scope of fair use and thus a copyright infringement. Because I disagree with the Court's fair use holding, it is necessary for me to decide the threshold copyrightability question.
"The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings ... but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods the exclusive rights to their writings." H.R. Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909). Congress thus seeks to define the rights included in copyright so as to serve the public welfare and not necessarily so as to maximize an author's control over his or her product. The challenge of copyright is to strike the "difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society's competing interest in the free flow of ideas, information, and commerce on the other hand." Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).
The "originality" requirement now embodied in 102 of the Copyright Act is crucial to maintenance of the appropriate balance between these competing interests. Properly interpreted [p581] in the light of the legislative history, this section extends copyright protection to an author's literary form but permits free use by others of the ideas and information the author communicates. See S. Rep. No. 93-983, pp. 107–108 (1974) ("Copyright does not preclude others from using the ideas or information revealed by the author's work. It pertains to the literary ... form in which the author expressed intellectual concepts"); H.R. Rep. No. 94-1476, pp. 56–57 (1976) (same); New York Times Co. v. United States, 403 U.S. 713, 726 , n. (1971) (BRENNAN, J., concurring) ("[T]he copyright laws, of course, protect only the form of expression and not the ideas expressed"). This limitation of protection to literary form precludes any claim of copyright in facts, including historical narration.
"It is not to be supposed that the framers of the Constitution, when they empowered Congress 'to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries' (Const., Art I, 8, par. 8), intended to confer upon one who might happen to be the first to report a historic event the exclusive right for any period to spread the knowledge of it." International News Service v. Associated Press, 248 U.S. 215, 234 (1918).
Accord, Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 309 (CA2 1966), cert. denied, 385 U.S. 1009 (1967). See 1 Nimmer 2.11[A], at 2-158. [p582]
The "promotion of science and the useful arts" requires this limit on the scope of an author's control. Were an author able to prevent subsequent authors from using concepts, ideas, or facts contained in his or her work, the creative process would wither and scholars would be forced into unproductive replication of the research of their predecessors. See Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (CA2 1980). This limitation on copyright also ensures consonance with our most important First Amendment values. Cf. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 577, n. 13 (1977). Our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), leaves no room for a statutory monopoly over information and ideas. "The arena of public debate would be quiet, indeed, if a politician could copyright his speeches or a philosopher his treatises and thus obtain a monopoly on the ideas they contained." Lee v. Runge, 404 U.S. 887, 893 (1971) (Douglas, J., dissenting from denial of certiorari). A broad dissemination of principles, ideas, and factual information is crucial to the robust public debate and informed citizenry that are "the essence of self-government." Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964). And every citizen must be permitted freely to marshal ideas and facts in the advocacy of particular political choices.
It follows that infringement of copyright must be based on a taking of literary form, as opposed to the ideas or information contained in a copyrighted work. Deciding whether an infringing appropriation of literary from has occurred is difficult for at least two reasons. First, the distinction between [p583] literary form and information or ideas is often elusive in practice. Second, infringement must be based on a substantial appropriation of literary form. This determination is equally challenging. Not surprisingly, the test for infringement has defied precise formulation. In general, though, the inquiry proceeds along two axes: how closely has the second author tracked the first author's particular language and structure of presentation; and how much of the first author's language and structure has the second author appropriated.
In the present case the infringement analysis must be applied to a historical biography in which the author has chronicled the events of his White House tenure and commented on those events from his unique perspective. Apart from the quotations, virtually all of the material in The Nation's article indirectly recounted Mr. Ford's factual narrative of the Nixon resignation and pardon, his latter-day reflections on some events of his Presidency, and his perceptions of the personalities at the center of those events. See ante, at 570–579. No copyright can be claimed in this information qua information. Infringement would thus have to be based [p584] on too close and substantial a tracking of Mr. Ford's expression of this information.
Much of the information The Nation conveyed was not in the form of paraphrase at all, but took the form of synopsis of lengthy discussions in the Ford manuscript. In the course of this summary presentation, The [p585] Nation did use occasional sentences that closely resembled language in the original Ford manuscript. But these linguistic similarities are insufficient to constitute an infringement for three reasons. First, some leeway must be given to subsequent authors seeking to convey facts because those "wishing to express the ideas contained in a factual work [p586] often can choose from only a narrow range of expression." Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485, 488 (CA9 1984). Second, much of what The Nation paraphrased was material in which Harper & Row could claim no copyright. Third, The Nation paraphrased nothing approximating the totality of a single paragraph, much less a chapter or the work as a whole. At most The Nation paraphrased disparate isolated sentences from the original. A finding of infringement based on paraphrase generally requires far more close and substantial a tracking of the original language than occurred in this case. See, e.g., Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (CA2 1977).
The Structure of PresentationEdit
The article does not mimic Mr. Ford's structure. The information The Nation presents is drawn from scattered sections of the Ford work and does not appear in the sequence in which Mr. Ford presented it. Some of The Nation's discussion of the pardon does roughly track the order in which the Ford manuscript presents information about the pardon. With respect to this similarity, however, Mr. Ford has done no more than present the facts [p587] chronologically and cannot claim infringement when a subsequent author similarly presents the facts of history in a chronological manner. Also, it is difficult to suggest that a 2,000-word article could bodily appropriate the structure of a 200,000-word book. Most of what Mr. Ford created, and most of the history he recounted, were simply not represented in The Nation's article.
When The Nation was not quoting Mr. Ford, therefore, its efforts to convey the historical information in the Ford manuscript did not so closely and substantially track Mr. Ford's language and structure as to constitute an appropriation of literary form.
The Nation is thus liable in copyright only if the quotation of 300 words infringed any of Harper & Row's exclusive rights under 106 of the Act. Section 106 explicitly makes the grant of exclusive rights "[s]ubject to section 107 through 118." 17 U.S.C. 106. Section 107 states: "Notwithstanding the provisions of section 106, the fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright." The question here is whether The Nation's [p588] quotation was a noninfringing fair use within the meaning of 107.
Congress "eschewed a rigid, bright-line approach to fair use." Sony Corp. of America v. Universal City Studios, Inc., 464 U.S., at 449, n. 31. A court is to apply an "equitable rule of reason" analysis, id., at 448, guided by four statutorily prescribed factors:
- "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- "(2) the nature of the copyright work;
- "(3) the amount and substantially of the portion used in relation to the copyrighted work as a whole; and
- "(4) the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. 107.
These factors are not necessarily the exclusive determinants of the fair use inquiry and do not mechanistically resolve fair use issues; "no generally applicable definition is possible, and each case raising the question must be decided on its own facts." H.R. Rep. No. 94-1476, at 65. See also id., at 66 ("[T]he endless variety of situations and combinations of circumstances that can arise in particular cases precludes the formulation of exact rules in the statute"); S. Rep. No. 94-473, p. 62 (1975). The statutory factors do, however, provide substantial guidance to courts undertaking the proper fact-specific inquiry.
With respect to a work of history, particularly the memoirs of a public official, the statutorily prescribed analysis cannot properly be conducted without constant attention to copyright's crucial distinction between protected literary form and unprotected information or ideas. The question must always be: Was the subsequent author's use of literary form a fair use within the meaning of 107, in light of the purpose for the use, the nature of the copyrighted work, the amount of literary form used, and the effect of this use of literary form on the value of or market for the original? [p589]
Limiting the inquiry to the propriety of a subsequent author's use of the copyright owner's literary form is not easy in the case of a work of history. Protection against only substantial appropriation of literary form does not ensure historians a return commensurate with the full value of their labors. The literary form contained in works like "A Time to Heal" reflects only a part of the labor that goes into the book. It is the labor of collecting, sifting, organizing, and reflecting that predominates in the creation of works of history such as this one. The value this labor produces lies primarily in the information and ideas revealed, and not in the particular collocation of words through which the information and ideas are expressed. Copyright thus does not protect that which is often of most value in a work of history, and courts must resist the tendency to reject the fair use defense on the basis of their feeling that an author of history has been deprived of the full value of his or her labor. A subsequent author's taking of information and ideas is in no sense piratical because copyright law simply does not create any property interest in information and ideas.
The urge to compensate for subsequent use of information and ideas is perhaps understandable. An inequity seems to lurk in the idea that much of the fruit of the historian's labor may be used without compensation. This, however, is not some unforeseen byproduct of a statutory scheme intended primarily to ensure a return for works of the imagination. Congress made the affirmative choice that the copyright laws should apply in this way: "Copyright does not preclude others from using the ideas or information revealed by the author's work. It pertains to the literary ... form in which the author expressed intellectual concepts." H.R. Rep. No. 94-1476, at 56–57. This distinction is at the essence of copyright. The copyright laws serve as the "engine of free expression," ante, at 558, only when the statutory monopoly does not choke off multifarious indirect uses and consequent broad dissemination of information and ideas. To ensure the progress of arts and sciences and the integrity [p590] of First Amendment values, ideas and information must not be freighted with claims of proprietary right.
In my judgment, the Court's fair use analysis has fallen to the temptation to find copyright violation based on a minimal use of literary form in order to provide compensation for the appropriation of information from a work of history. The failure to distinguish between information and literary form permeates every aspect of the Court's fair use analysis and leads the Court to the wrong result in this case. Application of the statutorily prescribed analysis with attention to the distinction between information and literary form leads to a straightforward finding of fair use within the meaning of 107.
The Purpose of the UseEdit
The Nation's purpose in quoting 300 words of the Ford manuscript was, as the Court acknowledges, news reporting. See ante, at 561. The Ford work contained information about important events of recent history. Two principals, Mr. Ford and General Alexander Haig, were at the time of The Nation's publication in 1979 widely thought to be candidates for the Presidency. That The Nation objectively reported the information in the Ford manuscript without independent commentary in no way diminishes the conclusion that it was reporting news. A typical news story differs from an editorial precisely in that it presents newsworthy information in a straightforward and unelaborated manner. Nor does the source of the information render The Nation's article any less a news report. Often books and manuscripts, solicited and unsolicited, are [p591] the subject matter of news reports. E.g., New York Times Co. v. United States, 403 U.S. 713 (1971). Frequently the manuscripts are unpublished at the time of the news report.
Section 107 lists news reporting as a prime example of fair use of another's expression. Like criticism and all other purposes Congress explicitly approved in 107, news reporting informs the public; the language of 107 makes clear that Congress saw the spread of knowledge and information as the strongest justification for a properly limited appropriation of expression. The Court of Appeals was therefore correct to conclude that the purpose of The Nation's use—dissemination of the information contained in the quotations of Mr. Ford's work—furthered the public interest. 723 F.2d 195, 207–208 (CA2 1983). In light of the explicit congressional endorsement in 107, the purpose for which Ford's literary form was borrowed strongly favors a finding of fair use.
The Court concedes the validity of the news reporting purpose but then quickly offsets it against three purportedly countervailing considerations. First, the Court asserts that because The Nation publishes for profit, its publication of [p592] the Ford quotes is a presumptively unfair commercial use. Second, the Court claims that The Nation's stated desire to create a "news event" signaled an illegitimate purpose of supplanting the copyright owner's right of first publication. Ante, at 562–563. Third, The Nation acted in bad faith, the Court claims, because its editor "knowingly exploited a purloined manuscript." Ante, at 563.
The Court's reliance on the commercial nature of The Nation's use as "a separate factor that tends to weigh against a finding of fair use," ante, at 562, is inappropriate in the present context. Many uses 107 lists as paradigmatic examples of fair use, including criticism, comment, and news reporting, are generally conducted for profit in this country, a fact of which Congress was obviously aware when it enacted 107. To negate any argument favoring fair use based on news reporting or criticism because that reporting or criticism was published for profit is to render meaningless the congressional imprimatur placed on such uses.
Nor should The Nation's intent to create a "news event" weigh against a finding of fair use. Such a rule, like the [p593] Court's automatic presumption against news reporting for profit, would undermine the congressional validation of the news reporting purpose. A news business earns its reputation, and therefore its readership, through consistent prompt publication of news—and often through "scooping" rivals. More importantly, the Court's failure to maintain the distinction between information and literary form colors the analysis of this point. Because Harper & Row had no legitimate copyright interest in the information and ideas in the Ford manuscript, The Nation had every right to seek to be the first to disclose these facts and ideas to the public. The record suggests only that The Nation sought to be the first to reveal the information in the Ford manuscript. The Nation's stated purpose of scooping the competition should under those circumstances have no negative bearing on the claim of fair use. Indeed the Court's reliance on this factor would seem to amount to little more than distaste for the standard journalistic practice of seeking to be the first to publish news.
The Court's reliance on The Nation's putative bad faith is equally unwarranted. No court has found that The Nation possessed the Ford manuscript illegally or in violation of any common-law interest of Harper & Row; all common-law causes of action have been abandoned or dismissed in this case. 723 F.2d, at 199–201. Even if the manuscript had been "purloined" by someone, nothing in this record imputes culpability to The Nation. On the basis of the record in this case, the most that can be said is that The Nation made use of the contents of the manuscript knowing the copyright owner would not sanction the use. [p594]
At several points the Court brands this conduct thievery. See, e.g., ante, at 556, 563. This judgment is unsupportable, and is perhaps influenced by the Court's unspoken tendency in this case to find infringement based on the taking of information and ideas. With respect to the appropriation of information and ideas other than the quoted words, The Nation's use was perfectly legitimate despite the copyright owner's objection because no copyright can be claimed in ideas or information. Whether the quotation of 300 words was an infringement or a fair use within the meaning of 107 is a close question that has produced sharp division in both this Court and the Court of Appeals. If the Copyright Act were held not to prohibit the use, then the copyright owner would have had no basis in law for objecting. The Nation's awareness of an objection that has a significant chance of being adjudged unfounded cannot amount to bad faith. Imputing bad faith on the basis of no more than knowledge of such an objection, the Court impermissibly prejudices the inquiry and impedes arrival at the proper conclusion that the "purpose" factor of the statutorily prescribed analysis strongly favors a finding of fair use in this case.
The Nature of the Copyrighted WorkEdit
In Sony Corp. of America v. Universal City Studios, Inc., we stated that "not ... all copyrights are fungible" and that "[c]opying a news broadcast may have a stronger claim to fair use than copying a motion picture." 464 U.S., at 455, n. 40. These statements reflect the principle, suggested in 107(2) of the Act, that the scope of fair use is generally broader when the source of borrowed expression is a factual or historical work. See 3 Nimmer 13.05[A]2., at 13-73–13-74. "[I]nformational works," like the Ford manuscript, "that readily lend themselves to productive use by others, are less protected." Sony Corp. of America v. Universal City Studios, Inc., 464 U.S., at 496–497 (BLACKMUN, J., dissenting). Thus the second statutory factor also favors a finding of fair use in this case. [p595]
The Court acknowledges that "[t]he law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy," ante, at 563, and that "[s]ome of the briefer quotations from the memoir are arguably necessary to convey the facts," ibid. But the Court discounts the force of this consideration, primarily on the ground that "[t]he fact that a work is unpublished is a crucial element of its 'nature.'" Ante, at 564. At this point the Court introduces into analysis of this case a categorical presumption against prepublication fair use. See ante, at 555 ("Under ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use").
This categorical presumption is unwarranted on its own terms and unfaithful to congressional intent. Whether a [p596] particular prepublication use will impair any interest the Court identifies as encompassed within the right of first publication, see ante, at 552–555, will depend on the nature of the copyrighted work, the timing of prepublication use, the amount of expression used, and the medium in which the second author communicates. Also, certain uses might be tolerable for some purposes but not for others. See Sony Corp. of America v. Universal City Studios, Inc., supra, at 490, n. 40. The Court is ambiguous as to whether it relies on the force of the presumption against prepublication fair use or an analysis of the purpose and effect of this particular use. Compare ante, at 552–555, with ante, at 564. To the extent the Court relies on the presumption, it presumes intolerable [p597] injury—in particular the usurpation of the economic interest—based on no more than a quick litmus test for prepublication timing. Because "Congress has plainly instructed us that fair use analysis calls for a sensitive balancing of interests," we held last Term that the fair use inquiry could never be resolved on the basis of such a "two dimensional" categorical approach. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S., at 455, n. 40 (rejecting categorical requirement of "productive use").
To the extent the Court purports to evaluate the facts of this case, its analysis relies on sheer speculation. The quotation of 300 words from the manuscript infringed no privacy interest of Mr. Ford. This author intended the words in the manuscript to be a public statement about his Presidency. Lacking, therefore, is the "deliberate choice on the part of the copyright owner" to keep expression confidential, a consideration that the Senate Report—in the passage on which the Court places great reliance, see ante, at 553—recognized as the impetus behind narrowing fair use for unpublished works. See S. Rep. No. 94-473, at 64. See also 3 Nimmer 13.05[A], at 13-73 ("[T]he scope of the fair use doctrine is considerably narrower with respect to unpublished works which are held confidential by their copyright owners") (emphasis added). What the Court depicts as the copyright owner's "confidentiality" interest, see ante, at 564, is not a privacy interest at all. Rather, it is no more than an economic interest in capturing the full value of initial release of information to [p598] the public, and is properly analyzed as such. See infra, at 602–603. Lacking too is any suggestion that The Nation's use interfered with the copyright owner's interest in editorial control of the manuscript. The Nation made use of the Ford quotes on the eve of official publication.
Thus the only interest The Nation's prepublication use might have infringed is the copyright owner's interest in capturing the full economic value of initial release. By considering this interest as a component of the "nature" of the copyrighted work, the Court's analysis deflates The Nation's claim that the informational nature of the work supports fair use without any inquiry into the actual or potential economic harm of The Nation's particular prepublication use. For this reason, the question of economic harm is properly considered under the fourth statutory factor—the effect on the value of or market for the copyrighted work, 17 U.S.C. 107(4)—and not as a presumed element of the "nature" of the copyright.
The Amount and Substantiality of the Portion UsedEdit
More difficult questions arise with respect to judgments about the importance to this case of the amount and substantiality of the quotations used. The Nation quoted only approximately 300 words from a manuscript of more than 200,000 words, and the quotes are drawn from isolated passages in disparate sections of the work. The judgment that this taking was quantitatively "infinitesimal," 723 F.2d, at 209, does not dispose of the inquiry, however. An evaluation of substantiality in qualitative terms is also required. Much of the quoted material was Mr. Ford's matter-of-fact representation of the words of others in conversations with him; such quotations are "arguably necessary adequately to convey the facts," ante, at 563, and are not rich in expressive content. Beyond these quotations a portion of the quoted material was drawn from the most poignant expression in the Ford manuscript; in particular The Nation made use of six examples of Mr. Ford's expression of his reflections on [p599] events or perceptions about President Nixon. The fair use inquiry turns on the propriety of the use of these quotations with admittedly strong expressive content.
The Court holds that "in view of the expressive value of the excerpts and their key role in the infringing work," this third statutory factor disfavors a finding of fair use. To support [p600] this conclusion, the Court purports to rely on the District Court factual findings that The Nation had taken "the heart of the book." 557 F.Supp. 1062, 1072 (S.D.N.Y.1983). This reliance is misplaced, and would appear to be another result of the Court's failure to distinguish between information and literary form. When the District Court made this finding, it was evaluating not the quoted words at issue here but the "totality" of the information and reflective commentary in the Ford work. Ibid. The vast majority of what the District Court considered the heart of the Ford work, therefore, consisted of ideas and information The Nation was free to use. It may well be that, as a qualitative matter, most of the value of the manuscript did lie in the information and ideas The Nation used. But appropriation of the "heart" of the manuscript in this sense is irrelevant to copyright analysis because copyright does not preclude a second author's use of information and ideas.
Perhaps tacitly recognizing that reliance on the District Court finding is unjustifiable, the Court goes on to evaluate independently the quality of the expression appearing in The Nation's article. The Court states that "[t]he portions actually quoted were selected by Mr. Navasky as among the most powerful passages." Ante, at 565. On the basis of no more than this observation, and perhaps also inference from the fact that the quotes were important to The Nation's article, the Court adheres to its conclusion that The Nation appropriated the heart of the Ford manuscript. [p601]
At least with respect to the six particular quotes of Mr. Ford's observations and reflections about President Nixon, I agree with the Court's conclusion that The Nation appropriated some literary form of substantial quality. I do not agree, however, that the substantiality of the expression taken was clearly excessive or inappropriate to The Nation's news reporting purpose.
Had these quotations been used in the context of a critical book review of the Ford work, there is little question that such a use would be fair use within the meaning of 107 of the Act. The amount and substantiality of the use—in both quantitative and qualitative terms—would have certainly been appropriate to the purpose of such a use. It is difficult to see how the use of these quoted words in a news report is less appropriate. The Court acknowledges as much: "[E]ven substantial quotations might qualify as a fair use in a review of a published work or a news account of a speech that had been delivered to the public." See ante, at 564. With respect to the motivation for the pardon and the insights into the psyche of the fallen President, for example, Mr. Ford's reflections and perceptions are so laden with emotion and deeply personal value judgments that full understanding is immeasurably enhanced by reproducing a limited portion of Mr. Ford's own words. The importance of the work, after all, lies not only in revelation of previously unknown fact but also in revelation of the thoughts, ideas, motivations, and fears of two Presidents at a critical moment in our national history. Thus, while the question is not easily resolved, it is difficult to say that the use of the six quotations was gratuitous in relation to the news reporting purpose.
Conceding that even substantial quotation is appropriate in a news report of a published work, the Court would seem to agree that this quotation was not clearly inappropriate in relation to The Nation's news reporting purpose. For the Court, the determinative factor is again that the substantiality of the use was inappropriate in relation to the prepublication [p602] timing of that use. That is really an objection to the effect of this use on the market for the copyrighted work, and is properly evaluated as such.
The Effect on the MarketEdit
The Court correctly notes that the effect on the market "is undoubtedly the single most important element of fair use." Ante, at 566, citing 3 Nimmer 13.05[A], at 13-76, and the Court properly focuses on whether The Nation's use adversely affected Harper & Row's serialization potential and not merely the market for sales of the Ford work itself. Ante, at 566–567. Unfortunately, the Court's failure to distinguish between the use of information and the appropriation of literary form badly skews its analysis of this factor.
For purposes of fair use analysis, the Court holds, it is sufficient that the entire article containing the quotes eroded the serialization market potential of Mr. Ford's work. Ante, at 567. On the basis of Time's cancellation of its serialization agreement, the Court finds that "[r]arely will a case of copyright infringement present such clear-cut evidence of actual damage." Ibid. In essence, the Court finds that by using some quotes in a story about the Nixon pardon, The Nation "competed for a share of the market of prepublication excerpts" ante, at 568, because Time planned to excerpt from the chapters about the pardon.
The Nation's publication indisputably precipitated Time's eventual cancellation. But that does not mean that The Nation's use of the 300 quoted words caused this injury to Harper & Row. Wholly apart from these quoted words, The Nation published significant information and ideas from the Ford manuscript. If it was this publication of information, and not the publication of the few quotations, that caused Time to abrogate its serialization agreement, then whatever the negative effect on the serialization market, that effect was the product of wholly legitimate activity.
The Court of Appeals specifically held that "the evidence does not support a finding that it was the very limited use of expression per se which led to Time's decision not to print excerpts." [p603] 723 F.2d, at 208. I fully agree with this holding. If The Nation competed with Time, the competition was not for a share of the market in excerpts of literary form but for a share of the market in the new information in the Ford work. That the information, and not the literary form, represents most of the real value of the work in this case is perhaps best revealed by the following provision in the contract between Harper & Row and Mr. Ford:
- "Author acknowledges that the value of the rights granted to publisher hereunder would be substantially diminished by Author's public discussion of the unique information not previously disclosed about Author's career and personal life which will be included in the Work, and Author agrees that Author will endeavor not to disseminate any such information in any media, including television, radio and newspaper and magazine interviews prior to the first publication of the work hereunder." App. 484.
Because The Nation was the first to convey the information in this case, it did perhaps take from Harper & Row some of the value that publisher sought to garner for itself through the contractual arrangement with Ford and the license to Time. Harper & Row had every right to seek to monopolize revenue from that potential market through contractual arrangements but it has no right to set up copyright as a shield from competition in that market because copyright does not protect information. The Nation had every right to seek to be the first to publish that information. [p604]
Balancing the InterestsEdit
Once the distinction between information and literary form is made clear, the statutorily prescribed process of weighing the four statutory fair use factors discussed above leads naturally to a conclusion that The Nation's limited use of literary form was not an infringement. Both the purpose of the use and the nature of the copyrighted work strongly favor the fair use defense here. The Nation appropriated Mr. Ford's expression for a purpose Congress expressly authorized in 107 and borrowed from a work whose nature justifies some appropriation to facilitate the spread of information. The factor that is perhaps least favorable to the claim of fair use is the amount and substantiality of the expression used. Without question, a portion of the expression appropriated was among the most poignant in the Ford manuscript. But it is difficult to conclude that this taking was excessive in relation to the news reporting purpose. In any event, because the appropriation of literary form—as opposed to the use of information—was not shown to injure Harper & Row's economic interest, any uncertainty with respect to the propriety of the amount of expression borrowed should be resolved in favor of a finding of fair use. In light of the circumscribed scope of the quotation in The Nation's article and the undoubted validity of the purpose [p605] motivating that quotation, I must conclude that the Court has simply adopted an exceedingly narrow view of fair use in order to impose liability for what was in essence a taking of unprotected information.
The Court's exceedingly narrow approach to fair use permits Harper & Row to monopolize information. This holding "effect[s] an important extension of property rights and a corresponding curtailment in the free use of knowledge and of ideas." International News Service v. Associated Press, 248 U.S., at 263 (Brandeis, J., dissenting). The Court has perhaps advanced the ability of the historian—or at least the public official who has recently left office—to capture the full economic value of information in his or her possession. But the Court does so only by risking the robust debate of public issues that is the "essence of self-government." Garrison v. Louisiana, 379 U.S., at 74–75. The Nation was providing the grist for that robust debate. The Court imposes liability upon The Nation for no other reason than that The Nation succeeded in being the first to provide certain information to the public. I dissent.
- ^ In bypassing the threshold issue, the Court certainly does not intimate that The Nation's use of ideas and information other than the quoted material would constitute a violation of the copyright laws. At one point in its opinion the Court correctly states the governing principles with respect to the copyrightability question. See ante, at 556 ("No author may copyright his ideas or the facts he narrates").
- ^ Section 102(b) states: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such [p581] work." 17 U.S.C. 102(b). The doctrines of fair use, see 17 U.S.C. 107, and substantial similarity, see 3 M. Nimmer, Copyright 13.05 (1984) (hereinafter Nimmer), also function to accommodate these competing considerations. See generally Gorman, "Fact or Fancy? The Implications for Copyright", 29 J. Copyright Soc. 560 (1982).
- ^ By the same token, an author may not claim copyright in statements made by others and reported verbatim in the author's work. See Suid v. Newsweek Magazine, 503 F.Supp. 146, 148 (D.C.1980); Rokeach v. Avco Embassy Pictures Corp., 197 USPQ 155, 161 (S.D.N.Y.1978).
- ^ It would be perverse to prohibit government from limiting the financial resources upon which a political speaker may draw, see FEC v. National Conservative Political Action Committee, 470 U.S. 480 (1985), but to permit government to limit the intellectual resources upon which that speaker may draw.
- ^ The protection of literary form must proscribe more than merely word-for-word appropriation of substantial portions of an author's work. Otherwise a plagiarist could avoid infringement by immaterial variations. Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (CA2 1930). The step beyond the narrow and clear prohibition of wholesale copying is, however, a venture onto somewhat uncertain terrain. Compare Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 974 (CA2 1980), with Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (CA2 1977). See also 1 Nimmer 1.10B, at 1-73–1-74 ("It is the particular selection and arrangement of ideas, as well as a given specificity in the form of their expression, which warrants protection"); Chafee, "Reflections on the Law of Copyright: I", 45 Colum.L.Rev. 503, 513 (1945) ("[T]he line ... lie[s] somewhere between the author's idea and the precise form in which he wrote it down. ... [T]he protection covers the 'pattern' of the work"); Gorman, supra, at 593 ("too literal and substantial copying and paraphrasing of ... language").
- ^ The inquiry into the substantiality of appropriation has a quantitative and a qualitative aspect.
- ^ Neither the District Court nor the dissent in the Court of Appeals approached the question in this way. Despite recognizing that this material was not "per se copyrightable," the District Court held that the "totality of these facts and memoranda collected together with Mr. Ford's reflections ... is protected by the copyright laws." 557 F. Supp. 1067, 1072–1073 (S.D.N.Y.1983). The dissent in the Court of Appeals signaled approval of this approach. 723 F.2d 195, 213–214 (CA2 1983) (Meskill, J., dissenting). Such an approach must be rejected. Copyright protection cannot be extended to factual information whenever that information is interwoven with protected expression (purportedly in this case Mr. Ford's reflections) into an expressive "totality." Most works of history or biography blend factual narrative and reflective or speculative commentary in this way. Precluding subsequent use of facts so presented cannot be squared with the specific legislative intent, expressed in both House and Senate Reports, that "[c]opyright does not preclude others from using the ... information revealed by the author's work." See S. Rep. No. 93-983, pp. 107–108 (1974); H.R. Rep. No. 94-1476, pp. 56–57 (1976). The core purposes of copyright would be thwarted and serious First Amendment concerns would arise. An author could obtain a monopoly on narration of historical events simply by being the first to discuss them in a reflective or analytical manner.
- ^ For example, the Ford manuscript expends several hundred words discussing relations between Mr. Ford and Ronald Reagan in the weeks before the Republican Convention of 1976:
"About a month before the convention, my aides had met with Reagan's representatives to discuss the need for party unity. And they had reached an agreement. At the end of the Presidential balloting, the winner would go to the loser's hotel suite and congratulate his opponent for waging a fine campaign. Together, they would appear at a press conference and urge all Republicans to put aside their differences and rally behind the ticket. That was the only way we could leave Kansas City with a hope of victory. When it appeared I was going to win, Sears contacted Cheney and refined the scenario. He insisted on two conditions. The first was that I had to see Reagan alone; there could be no aides from either camp in the room. Secondly, under no circumstances should I offer him the nomination to be [p585] Vice President. Reagan had said all along that he wasn't interested in the job. He had meant what he said. If I tried to talk him out of it, he would have to turn me down, and that would be embarrassing because it would appear that he was refusing to help the GOP. When Cheney relayed those conditions to me, I agreed to go along with them. I would need Reagan's assistance in the fall campaign. It would be stupid to anger him or his followers at this moment.
"Later I was told that just before my arrival at the Californian's hotel, one of his closest advisors, businessman Justin Dart, had urged him to say yes if I asked him to be my running mate, Regardless of anything he'd said before, Dart had insisted, it was his patriotic duty to accept the number two post. Finally, according to Dart, Reagan had agreed. But at the time, no one mentioned this new development to me. Had I been aware of the Dart–Reagan conversation, would I have chosen him? I can't say for sure—I thought his challenge had been divisive, and that it would probably hurt the party in the fall campaign; additionally, I resented some of the things that he'd been saying about me and my Administration's policies—but I certainly would have considered him." App. 628–629.
The Nation encapsulated this discussion in the following sentence: "Ford also writes that, but for a misunderstanding, he might have selected Ronald Reagan as his 1976 running mate." Id., at 627. In most other instances, a single sentence or brief paragraph in The Nation's article similarly conveys the gist of a discussion in the Ford manuscript that runs into the hundreds of words. See generally Addendum B to Defendant's Post-Trial Memorandum, id., at 627–704.
- ^ For example, at one point The Nation's article reads: "Ford told a Jackson, Mich., luncheon audience later in the day that the President was not guilty of an impeachable offense." Ante, at 572. The portion of the Ford manuscript discussed stated: "Representative Thad Cochran ... escorted me to a luncheon at the Jackson Hilton Hotel. During the luncheon I repeated my assertion that the President was not guilty of an impeachable offense." App. 649. In several other places the language in The Nation's article parallels Mr. Ford's original expression to a similar degree. Compare ante, at 570–579, with App. 627–704.
- ^ Often the paraphrasing was of statements others had made to Mr. Ford. E.g., ante, at 571 ("He could 'ride it out' or he could resign, Haig said"). See generally ante, at 570–579. No copyright can be asserted in the verbatim representation of such statements of others. 17 U.S.C. 102. See Suid v. Newsweek Magazine, 503 F.Supp., at 148; Rokeach v. Avco Embassy Pictures Corp., 197 USPQ, at 161. Other paraphrased material came from Government documents in which no copyright interest can be claimed. For example, the article quotes from a memorandum prepared by Henry S. Ruth, Jr., in his official capacity as assistant to Watergate Special Prosecutor Leon Jaworski. See ante, at 573. This document is a work of the United States Government. See 17 U.S.C. 105.
- ^ According to an exhibit Harper & Row introduced at trial the pages in the Ford manuscript that correspond to consecutive sections of the article are as follows: 607–608, 401, 44, 496, 1, 2–3, 4, 8, 7, 4–5, 5, 5–6, 8, 14, 15, 16, 16, 18, 19, 21, 266, 236, 246, 248, 249, 238–239, 239, 243, 245, 246, 250, 250–251, 251, 252, 253, 254, 256, 298, 299, 46, 494, 537, 155–156, 216, 415, 416, 416, 53–54, 57. See App. to Pet. for Cert. E-1 to E-41.
- ^ In one sense The Nation "copied" Mr. Ford's selection of facts because it reported on only those facts Mr. Ford chose to select for presentation. But this tracking of a historian's selection of facts generally should not supply the basis for a finding of infringement. See Myers v. Mail & Express Co., 36 Copyright Off. Bull. 478 (S.D.N.Y.1919) (L. Hand, J.). To hold otherwise would be to require a second author to duplicate the research of the first author so as to avoid reliance on the first author's judgment as to what facts are particularly pertinent. "'It is just such wasted effort that the proscription against the copyright of ideas and facts ... are designed to prevent.'" Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1371 (CA5 1981), quoting Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 310 (CA2 1966). See Gorman, 29 J. Copyright Soc., at 594–595.
- ^ This congressional limitation on the scope of copyright does not threaten the production of history. That this limitation results in significant diminution of economic incentives is far from apparent. In any event noneconomic incentives motivate much historical research and writing. For example, former public officials often have great incentive to "tell their side of the story." And much history is the product of academic scholarship. Perhaps most importantly, the urge to preserve the past is as old as humankind.
- ^ E.g., N. Y. Times, Aug. 2, 1984, p. C20, col. 5 (article about revelations in forthcoming biography of Cardinal Spellman); N. Y. Times, Dec. 10, 1981, p. A18, col. 1 (article about revelations in forthcoming book by John Erlichman); N. Y. Times, Sept. 29, 1976, p. 1, col. 2 (article about revelations in forthcoming autobiography of President Nixon); N. Y. Times, Mar. 27, 1976, p. 9, col. 1 (article about revelations concerning President Nixon's resignation in forthcoming book The Final Days); N. Y. Times, Sept. 23, 1976, p. 36, col. 1 (article about revelations concerning President Ford in forthcoming book Blind Ambition by John Dean).
- ^ The Court properly rejects the argument that this is not legitimate news. Courts have no business making such evaluations of journalistic quality. See ante, at 561. The Court also properly rejects the argument that this use is nonproductive. See ibid. News reporting, which encompasses journalistic judgment with respect to selection, organization, and presentation of facts and ideas, is certainly a productive use. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S., at 478–479 (BLACKMUN, J., dissenting).
- ^ To support this claim the Court refers to some language in Sony Corp. of America v. Universal City Studios, Inc., supra, to the effect that "every commercial use of copyrighted material is presumptively an unfair exploitation." Id., at 451. See ante, at 562. Properly understood, this language does not support the Court's position in this case. The Court in Sony Corp. dealt with a use—video recording of copyrighted television programs for personal use—about which Congress had expressed no policy judgment. When a court evaluates uses that Congress has not specifically addressed, the presumption articulated in Sony Corp. is appropriate to effectuate the congressional instruction to consider "whether such use is of a commercial nature." 17 U.S.C. 107(1). Also, the Court made that statement in the course of evaluating a use that appropriated the entirety of the copyrighted work in a form identical to that of the original; the presumption articulated may well have been intended to apply to takings under these circumstances. But, in light of the specific language of 107, this presumption is not appropriately employed to negate the weight Congress explicitly gave to news reporting as a justification for limited use of another's expression.
- ^ This case is a far cry from Time Inc. v. Bernard Geis Associates, 293 F.Supp. 130, 146 (S.D.N.Y.1968), the only case the Court cites to support consideration of The Nation's purported bad faith. In that case the publisher claiming fair use had personally stolen film negatives from the offices of Time and then published graphic representations of the stolen photographic images. And the court found fair use despite these circumstances. Ibid.
- ^ The Court also discounts this factor in part because the appropriation of The Nation, "focusing on the most expressive elements of the work, exceeds that necessary to disseminate the facts." Ante, at 564. Whatever the propriety of this view of The Nation's use, it is properly analyzed under the third statutory fair use factor—the amount and substantiality of the expression taken in relation to the copyrighted work as a whole. 17 U.S.C. 107(3)—and will be analyzed as such in this opinion.
- ^ The Court lays claim to specific congressional intent supporting the presumption against prepublication fair use. See ante, at 553, quoting S. Rep. No. 94-473, p. 64 (1975); ante, at 551, n. 4, 553–554. The argument based on congressional intent is unpersuasive for three reasons.
First, the face of the statute clearly allows for prepublication fair use. The right of first publication, like all other rights 106 of the Act specifically grants copyright owners, is explicitly made "subject to section 107," the statutory fair use provision. See 17 U.S.C. 106.
Second, the language from the Senate Report on which the Court relies so heavily, see ante, at 553, simply will not bear the weight the Court places on it. The Senate Report merely suggests that prepublication photocopying for classroom purposes will not generally constitute fair use when the author has an interest in the confidentiality of the unpublished work, evidenced by the author's "deliberate choice" not to publish. Given that the face of 106 specifically allows for prepublication fair use, it would be unfaithful to the intent of Congress to draw from this circumscribed [p596] suggestion in the Senate Report a blanket presumption against any amount of prepublication fair use for any purpose and irrespective of the effect of that use on the copyright owner's privacy, editorial, or economic interests.
Third, the Court's reliance on congressional adoption of the common law is also unpersuasive. The common law did not set up the monolithic barrier to prepublication fair use that the Court wishes it did. See, e.g., Estate of Hemingway v. Random House, Inc., 53 Misc.2d 462, 279 N.Y.S.2d 51 (S.Ct.N.Y.Cty.), aff'd, 29 App.Div.2d 633, 285 N.Y.S.2d 568 (1st Jud.Dept.1967), aff'd on other grounds, 23 N.Y.2d 341, 244 N.E.2d 250 (1968). The statements of general principle the Court cites to support its contrary representation of the common law, see ante, at 551, n. 4, are themselves unsupported by reference to substantial judicial authority. Congressional endorsement of the common law of fair use should not be read as adoption of any rigid presumption against prepublication use. If read that way, the broad statement that the Copyright Act was intended to incorporate the common law would in effect be given the force of nullifying Congress' repeated methodological prescription that definite rules are inappropriate and fact-specific analysis is required. The broad language adopting the common-law approach to fair use is best understood as an endorsement of the essential fact-specificity and case-by-case methodology of the common law of fair use.
- ^ The Court finds the right of first publication particularly weighty because it encompasses three important interests: (i) a privacy interest in whether to make expression public at all; (ii) an editorial interest in ensuring control over the work while it is being groomed for public dissemination; and (iii) an economic interest in capturing the full remunerative potential of initial release to the public. Ante, at 552–555.
- ^ Perhaps most inappropriate is the Court's apocalyptic prophesy that permitting any prepublication use for news reporting will "effectively destroy any expectation of copyright protection in the work of a public figure." Ante, at 557. The impact of a prepublication use for purposes of news reporting will obviously vary with the circumstances. A claim of news reporting should not be a fig leaf for substantial plagiarism, see Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (CA2 1977), but there is no warrant for concluding that prepublication quotation of a few sentences will usually drain all value from a copyright owner's right of first publication.
- ^ These six quotes are:
(1) "'[C]ompassion for Nixon as an individual hadn't prompted my decision at all.' Rather, he did it because he had 'to get the monkey off my back one way or the other.'" Ante, at 572–573.
(2) "Nixon 'would not spend the time quietly in San Clemente,' and 'it would be virtually impossible for me to direct public attention on anything else.'" Ante, at 573.
(3) "'I learned that public policy often took precedence over a rule of law. Although I respected the tenet that no man should be above the law, public policy demanded that I put Nixon—and Watergate—behind us as quickly as possible.'" Ante, at 575.
(4) "'If I made the trip it would remind everybody of Watergate and the pardon. If I didn't people would say I lacked compassion.'" Ibid.
(5) "He was stretched out flat on his back. There were tubes in his nose and mouth, and wires led from his arms, chest and legs to machines with orange lights that blinked on and off. His face was ashen, and I thought I had never seen anyone closer to death." Ibid.
(6) "'A terribly proud man,' writes Ford, 'he detested weakness in other people. I'd often heard him speak disparagingly of those whom he felt to be soft and expedient. (Curiously, he didn't feel that the press was weak. Reporters, he sensed, were his adversaries. He knew they didn't like him, and he responded with reciprocal disdain.)' ... 'His pride and personal contempt for weakness had overcome his ability to tell the difference between right and wrong.' ... 'Nixon was out of touch with reality.'" Ante, at 578.
- ^ The Court places some emphasis on the fact that the quotations from the Ford work constituted a substantial portion of The Nation's article. Superficially, the Court would thus appear to be evaluating The Nation's quotation of 300 words in relation to the amount and substantiality of expression used in relation to the second author's work as a whole. The statute directs the inquiry into "the amount and substantiality of the portion used in relation to the copyrighted work as a whole," 17 U.S.C. 107(3) (emphasis added). As the statutory directive implies, it matters little [p600] whether the second author's use is 1- or 100-percent appropriated expression if the taking of that expression had no adverse effect on the copyrighted work. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) (100% of expression taken). I presume, therefore, that the Court considered the role of the expression "in the infringing work" only as indirect evidence of the qualitative value of the expression taken in this case. If read this way, the point dovetails with the Court's major argument that The Nation appropriated the most valuable sentences of the work.
- ^ See n. 23, supra.
- ^ The Court's reliance on the principle that "an infringer who mingles infringing and noninfringing elements 'must abide the consequences,'" ante, at 567 (citation omitted), is misconceived. Once infringement of a 106 exclusive right has been shown, it is entirely appropriate to shift to [p604] the infringer the burden of showing that the infringement did not cause all the damages shown. But the question in this case is whether this particular use infringed any 106 rights. Harper & Row may have shown actual damage flowing from The Nation's use of information, but they have not shown actual damage flowing from an infringement of a 106 exclusive right.
- ^ Had The Nation sought to justify a more substantial appropriation of expression on a news reporting rationale, a different case might be presented. The substantiality of the taking would certainly dilute the claim of need to use the first author's exact words to convey a particular thought or sentiment. Even if the claim of need were plausible, the equities would have to favor the copyright owner in order to prevent erosion of virtually all copyright protection for works of former public officials. In this case, however, the need is manifest and the integrity of copyright protection for the works of public officials is not threatened. [p606]
Table of casesEdit
- Estate of Hemingway v. Random House, Inc., 53 Misc.2d 462, 279 N.Y.S.2d 51 (S.Ct.N.Y.Cty.), aff'd, 29 App.Div.2d 633, 285 N.Y.S.2d 568 (1st Jud.Dept.1967), aff'd on other grounds, 23 N.Y.2d 341, 244 N.E.2d 250 (1968)
- FEC v. National Conservative Political Action Committee, 470 U.S. 480 (1985)
- Garrison v. Louisiana, 379 U.S. 64 (1964)
- Harper & Row v. Nation Enterprises, 557 F.Supp. 1062 (S.D.N.Y.1983)
- Harper & Row v. Nation Enterprises, 723 F.2d 195 (CA2 1983)
- Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (CA2 1980)
- International News Service v. Associated Press, 248 U.S. 215 (1918).
- Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485 (CA9 1984)
- Lee v. Runge, 404 U.S. 887 (1971)
- Miller v. Universal City Studios, Inc., 650 F.2d 1365 (CA5 1981)
- Myers v. Mail & Express Co., 36 Copyright Off. Bull. 478 (S.D.N.Y.1919)
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
- New York Times Co. v. United States, 403 U.S. 713 (1971)
- Nichols v. Universal Pictures Corp., 45 F.2d 119 (CA2 1930)
- Rokeach v. Avco Embassy Pictures Corp., 197 USPQ 155 (S.D.N.Y.1978)
- Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (CA2 1966), cert. denied, 385 U.S. 1009 (1967)
- Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)
- Suid v. Newsweek Magazine, 503 F.Supp. 146 (D.C.1980)
- Time Inc. v. Bernard Geis Associates, 293 F.Supp. 130 (S.D.N.Y.1968)
- Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (CA2 1977)
- Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977)