Harper & Row Publishers v.

Nation Enterprises
Case Brief
Facts:
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unauthorized source provided The Nation Magazine with the unpublished Ford manuscript.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.

Issue(s):
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unauthorized use of quotations from former President Gerald Ford's unpublished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?
Holding(s):
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The Nation's use of verbatim excerpts from the unpublished manuscript was not a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 The Court reasoned that the unpublished nature of a work is a key, though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."
Rule(s):
Reasoning:
Dissent: