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Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) p.628


fair use


D published without authorization big parts of President Ford's about to be released memoirs. They did this in order to "scoop" the release that was expected to be in Time magazine that same week.


On appeal the Second Circuit reversed the lower court's finding of infringement, holding that The Nation's act was sanctioned as a fair use of the copyrighted material. The USSC reversed.


To what extent the fair use provisions of the copyright act sanctions the unauthorized use of quotations from a public figure's unpublished manuscript.


The facts that words the author has chosen to clothe his narrative may of themselves be newsworthy is not an independent justification for unauthorized copying of the author's expression prior to publication.


The publication of Ford's memoirs constituted an infringement and was not fair use. We find that this use of the copyrighted manuscript. even stripped to the verbatim quotes conceded by the Nation to be copyrightable expression, was not a fair used within the meaning of the Copyright Act.


Fair use is a mixed question of fact and law. The scope of fair use is narrower with repsect to unpublished works. The author's right to control the first public appearance of his expression weighs against such use of the work before its release. Also relevant to the character of the use is the propriety of the defendant's conduct. Nation quoted these passages precisely because they qualitatively embodied distinctive expression. The last factor is undoubtedly the single most important element of fair use (effect of the use upon the potential market for or value of the copyrighted work). Rarely will a case of copyright infringement present such a clear cut case of actual damage (the fact that Time cancelled the publication and refused to pay the $12,500 remaining payment). Petitioners established a prima facie case of actual damage that respondents failed to rebut.


fair use is an equitable doctrine - must look at the fairness; the court here makes a point that the defendant got a hold of the manuscript by improper means; that was taken into consideration.

Created on: Thursday, October 21, 1999 at 19:24:01 (PDT)

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