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Harper & Row Publishers, Inc. v. Nation Enterprises

Citation. Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 105 S. Ct. 2218, 85 L. Ed. 2d 588, 225 U.S.P.Q. (BNA) 1073, 53 U.S.L.W. 4562, 11 Media L. Rep. 1969 (U.S. May 20, 1985)
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Brief Fact Summary.

Nation Enterprises (Defendant) argued that its use of quotes from a yet-unpublished set of memoirs constituted fair use.

Synopsis of Rule of Law.

Publication of parts of a work soon to be published does not qualify as fair use.


Harper & Row Publishers, Inc. (Harper) (Plaintiff) obtained the rights to publish President Ford’s memoirs, A Time to Heal. Time magazine contracted for the rights to preview the work immediately before publication. Before the publication of the article by Time magazine, Nation Enterprises (Defendant), publisher of The Nation magazine, got a copy of the Ford manuscript. The Nation published an article that quoted the manuscript about the Nixon pardon. Time then choose not to use the article as planned and canceled its contract with Harper (Plaintiff). Plaintiff sued Defendant for copyright infringement. The district court awarded damages for infringement. The Second Circuit reversed, holding Nation Enterprises’ (Defendant) use to be a “fair use†under 17 U.S.C.107. The United States Supreme Court granted certiorari.


Does publication of parts of a work soon to be published qualify as fair use?


(O’Connor, J.) No. Publication of parts of a work soon to be published does not qualify as fair use. The idea behind the fair use doctrine as it was framed in the common law was that one using a copyrighted work should not have to get a copyright holder’s permission to use the copyrighted work in a case where a reasonable copyright holder would in fact grant permission. Section 107 of the Copyright Act, which codified the doctrine, expressly noted in its legislative history that it was not meant to change the common law. As for reasonableness, it is not reasonable to expect a copyright holder to let another person “scoop†it by publishing his material ahead of time. Regarding the language of § 107, the section lists four points to consider in applying the doctrine. The two factors most relevant here are purpose of the use and effect on the market. Usually, a fair use will not be one of economic competition with the copyright holder, which is exactly what prior publication of a copyrighted work is. In addition, the effect on the market of such a use is shown by what happened here: it greatly decreases the market value of the copyrighted work. Therefore, the conclusion in this case, and in almost all cases, is that prior publication of a work pending publication will not be a fair use. Reversed.


The common law doctrine of “fair use†is well established. The Supreme Court recognized the doctrine as early as 1841. In Folsom v. Marsh, 9 F. Cas. 342 (1841), Justice Story allowed use of quotes by a reviewer as a “fair use.†A major application of the doctrine remains to be the use of quotes in criticism of a work.

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