U.S. Supreme Court
HARPER & ROW v. NATION ENTERPRISES, 471 U.S. 539 (1985)
471 U.S. 539
HARPER & ROW, PUBLISHERS, INC., ET AL. v. NATION ENTERPRISES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Argued November 6, 1984
Decided May 20, 1985
In 1977, former President Ford contracted with petitioners to publish his as
yet unwritten memoirs. The agreement gave petitioners the exclusive first
serial right to license prepublication excerpts. Two years later, as the
memoirs were nearing completion, petitioners, as the copyright holders,
negotiated a prepublication licensing agreement with Time Magazine under which
Time agreed to pay $25,000 ($12,500 in advance and the balance at publication)
in exchange for the right to excerpt 7,500 words from Mr. Ford's account of his
pardon of former President Nixon. Shortly before the Time article's scheduled
release, an unauthorized source provided The Nation Magazine with the
unpublished Ford manuscript. Working directly from this manuscript, an editor
of The Nation produced a 2,250-word article, at least 300 to 400 words of which
consisted of verbatim quotes of copyrighted expression taken from the
manuscript. It was timed to "scoop" the Time article. As a result of
the publication of The Nation's article, Time canceled its article and refused
to pay the remaining $12,500 to petitioners. Petitioners then brought suit in
Federal District Court against respondent publishers of The Nation, alleging,
inter alia, violations of the Copyright Act (Act). The District Court held that
the Ford memoirs were protected by copyright at the time of The Nation
publication and that respondents' use of the copyrighted material constituted
an infringement under the Act, and the court awarded actual damages of $12,500.
The Court of Appeals reversed, holding that The Nation's publication of the 300
to 400 words it identified as copyrightable expression was sanctioned as a
"fair use" of the copyrighted material under 107 of the Act. Section
107 provides that notwithstanding the provisions of 106 giving a copyright
owner the exclusive right to reproduce the copyrighted work and to prepare
derivative works based on the copyrighted work, the fair use of a copyrighted
work for purposes such as comment and news reporting is not an infringement of
copyright. Section 107 further provides that in determining whether the use was
fair the factors to be considered shall include: (1) the purpose and character
of the use; (2) the nature of the copyrighted work; (3) the substantiality of
the portion used in relation to the [471 U.S. 539, 540]
copyrighted work as a whole; and (4) the effect on the potential market for or
value of the copyrighted work.
The Nation's article was not a "fair use" sanctioned by 107. Pp.
(a) In using generous verbatim excerpts of Mr. Ford's unpublished expression to
lend authenticity to its account of the forthcoming memoirs, The Nation
effectively arrogated to itself the right of first publication, an important
marketable subsidiary right. Pp. 545-549.
(b) Though the right of first publication, like other rights enumerated in 106,
is expressly made subject to the fair use provisions of 107, fair use analysis
must always be tailored to the individual case. The nature of the interest at
stake is highly relevant to whether a given use is fair. The unpublished nature
of a work is a key, though not necessarily determinative, factor tending to
negate a defense of fair use. And under ordinary circumstances, the author's
right to control the first public appearance of his undisseminated expression
will outweigh a claim of fair use. Pp. 549-555.
(c) In view of the First Amendment's protections embodied in the Act's
distinction between copyrightable expression and uncopyrightable facts and
ideas, and the latitude for scholarship and comment traditionally afforded by
fair use, there is no warrant for expanding, as respondents contend should be
done, the fair use doctrine to what amounts to a public figure exception to
copyright. Whether verbatim copying from a public figure's manuscript in a
given case is or is not fair must be judged according to the traditional
equities of fair use. Pp. 555-560.
(d) Taking into account the four factors enumerated in 107 as especially
relevant in determining fair use, leads to the conclusion that the use in
question here was not fair. (i) The fact that news reporting was the general
purpose of The Nation's use is simply one factor. While The Nation had every
right to be the first to publish the information, it went beyond simply
reporting uncopyrightable information and actively sought to exploit the
headline value of its infringement, making a "news event" out of its
unauthorized first publication. The fact that the publication was commercial as
opposed to nonprofit is a separate factor tending to weigh against a finding of
fair use. Fair use presupposes good faith. The Nation's unauthorized use of the
undisseminated manuscript had not merely the incidental effect but the intended
purpose of supplanting the copyright holders' commercially valuable right of
first publication. (ii) While there may be a greater need to disseminate works
of fact than works of fiction, The Nation's taking of copyrighted expression
exceeded that necessary to disseminate the facts and infringed the copyright
holders' interests in confidentiality and creative control over the first
public appearance of the work. (iii) Although the verbatim quotes
[471 U.S. 539, 541]
in question were an insubstantial portion of the Ford manuscript, they
qualitatively embodied Mr. Ford's distinctive expression and played a key role
in the infringing article. (iv)
As to the effect of The Nation's article on the
market for the copyrighted work, Time's cancellation of its projected article
and its refusal to pay $12,500 were the direct effect of the infringing
publication. Once a copyright holder establishes a causal connection between
the infringement and loss of revenue, the burden shifts to the infringer to
show that the damage would have occurred had there been no taking of
copyrighted expression. Petitioners established a prima facie case of actual
damage that respondents failed to rebut. More important, to negate a claim of
fair use it need only be shown that if the challenged use should become
widespread, it would adversely affect the potential market for the copyrighted
work. Here, The Nation's liberal use of verbatim excerpts posed substantial
potential for damage to the marketability of first serialization rights in the
copyrighted work. Pp. 560-569.
723 F.2d 195, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and
BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a
dissenting opinion, in which WHITE and MARSHALL, JJ., joined, post, p. 579.
Edward A. Miller argued the cause for petitioners. With him on the briefs were
Barbara Hufham and David Otis Fuller, Jr.
Floyd Abrams argued the cause for respondents. With him on the brief were
Devereux Chatillon, Carol E. Rinzler, Andrew L. Deutsch, and Leon Friedman.
Briefs of amici curiae urging reversal were filed for the Association of
American Publishers, Inc., by Jon A. Baumgarten and Charles H. Lieb; and for
Volunteer Lawyers for the Arts, Inc., by I. Fred Koenigsberg.
Briefs of amici curiae urging affirmance were filed for the Pen American Center
by Stephen Gillers; and for Gannett Co., Inc., et al. by Melville B. Nimmer,
Benjamin W. Heineman, Jr., Alice Neff Lucan, and Robert C. Lobdell.
JUSTICE O'CONNOR delivered the
OPINION OF THE COURT
This case requires us to consider to what extent the "fair use"
provision of the Copyright Revision Act of 1976 (hereinafter [471 U.S. 539,
the Copyright Act), 17 U.S.C. 107, sanctions the unauthorized use of quotations
from a public figure's unpublished manuscript. In March 1979, an undisclosed
source provided The Nation Magazine with the unpublished manuscript of "A
Time to Heal: The Autobiography of Gerald R. Ford." Working directly from
the purloined manuscript, an editor of The Nation produced a short piece
entitled "The Ford Memoirs - Behind the Nixon Pardon." The piece was
timed to "scoop" an article scheduled shortly to appear in Time
Magazine. Time had agreed to purchase the exclusive right to print
prepublication excerpts from the copyright holders, Harper & Row Publishers,
Inc. (hereinafter Harper & Row), and Reader's Digest Association, Inc.
(hereinafter Reader's Digest). As a result of The Nation article, Time canceled
its agreement. Petitioners brought a successful copyright action against The
Nation. 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. We granted certiorari, [467 U.S. 1214
(1984)], and we now reverse.
In February 1977, shortly after leaving the White House, former President
Gerald R. Ford contracted with petitioners Harper & Row and Reader's Digest, to
publish his as yet unwritten memoirs. The memoirs were to contain
"significant hitherto unpublished material" concerning the Watergate
crisis, Mr. Ford's pardon of former President Nixon and "Mr. Ford's
reflections on this period of history, and the morality and personalities
involved." App. to Pet. for Cert. C-14 - C-15. In addition to the right to
publish the Ford memoirs in book form, the agreement gave petitioners the
exclusive right to license prepublication excerpts, known in the trade as
"first serial rights." Two years later, as the memoirs were nearing
completion, petitioners negotiated a prepublication licensing agreement with
Time, a weekly news magazine. Time agreed to pay $25,000, $12,500 in advance
[471 U.S. 539, 543]
additional $12,500 at publication, in exchange for the right to excerpt 7,500
words from Mr. Ford's account of the Nixon pardon. The issue featuring the
excerpts was timed to appear approximately one week before shipment of the full
length book version to bookstores. Exclusivity was an important consideration;
Harper & Row instituted procedures designed to maintain the confidentiality of
the manuscript, and Time retained the right to renegotiate the second payment
should the material appear in print prior to its release of the excerpts.
Two to three weeks before the Time article's scheduled release, an unidentified
person secretly brought a copy of the Ford manuscript to Victor Navasky, editor
of The Nation, a political commentary magazine. Mr. Navasky knew that his
possession of the manuscript was not authorized and that the manuscript must be
returned quickly to his "source" to avoid discovery. 557 F. Supp.
1067, 1069 (SDNY 1983). He hastily put together what he believed was "a
real hot news story" composed of quotes, paraphrases, and facts drawn
exclusively from the manuscript. Ibid. Mr. Navasky attempted no independent
commentary, research or criticism, in part because of the need for speed if he
was to "make news" by "publish[ing] in advance of publication of
the Ford book." App. 416-417. The 2,250-word article, reprinted in the
Appendix to this opinion, appeared on April 3, 1979. As a result of The
Nation's article, Time canceled its piece and refused to pay the remaining
Petitioners brought suit in the District Court for the Southern District of New
York, alleging conversion, tortious interference with contract, and violations
of the Copyright Act. After a 6-day bench trial, the District Judge found that
"A Time to Heal" was protected by copyright at the time of The Nation
publication and that respondents' use of the copyrighted material constituted
an infringement under the Copyright Act, 106(1), (2), and (3), protecting
respectively the right to reproduce the work, the right to license preparation
of derivative works, and the right of first distribution of
[471 U.S. 539, 544]
the copyrighted work to the public. App. to Pet. for Cert. C-29 - C-30. The
District Court rejected respondents' argument that The Nation's piece was a
"fair use" sanctioned by 107 of the Act. Though billed as "hot
news," the article contained no new facts. The magazine had
"published its article for profit," taking "the heart" of
"a soon-to-be published" work. This unauthorized use "caused the
Time agreement to be aborted and thus diminished the value of the
copyright." 557 F. Supp., at 1072. Although certain elements of the Ford
memoirs, such as historical facts and memoranda, were not per se copyrightable,
the District Court held that it was "the totality of these facts and
memoranda, collected together with Ford's reflections that made them of value
to The Nation, [and] this . . . totality . . . is protected by the copyright
laws." Id., at 1072-1073. The court awarded actual damages of $12,500.
A divided panel of the Court of Appeals for the Second Circuit reversed. The
majority recognized that Mr. Ford's verbatim "reflections" were
original "expression" protected by copyright. But it held that the
District Court had erred in assuming the "coupling [of these reflections]
with uncopyrightable fact transformed that information into a copyrighted
`totality.'" 723 F.2d 195, 205 (1983). The majority noted that copyright
attaches to expression, not facts or ideas. It concluded that, to avoid
granting a copyright monopoly over the facts underlying history and news,
"`expression' [in such works must be confined] to its barest elements -
the ordering and choice of the words themselves." Id., at 204. Thus
similarities between the original and the challenged work traceable to the
copying or paraphrasing of uncopyrightable material, such as historical facts,
memoranda and other public documents, and quoted remarks of third parties, must
be disregarded in evaluating whether the second author's use was fair or
"When the uncopyrighted material is stripped away, the article in The
Nation contains, at most, approximately
[471 U.S. 539, 545]
300 words that are copyrighted. These remaining paragraphs and scattered
phrases are all verbatim quotations from the memoirs which had not appeared
previously in other publications. They include a short segment of Ford's
conversations with Henry Kissinger and several other individuals. Ford's
impressionistic depictions of Nixon, ill with phlebitis after the resignation
and pardon, and of Nixon's character, constitute the major portion of this
material. It is these parts of the magazine piece on which [the court] must
focus in [its] examination of the question whether there was a `fair use' of
copyrighted matter." Id., at 206.
Examining the four factors enumerated in 107, see infra, at 547, n. 2, the
majority found the purpose of the article was "news reporting," the
original work was essentially factual in nature, the 300 words appropriated
were insubstantial in relation to the 2,250-word piece, and the impact on the
market for the original was minimal as "the evidence [did] not support a
finding that it was the very limited use of expression per se which led to
Time's decision not to print the excerpt." The Nation's borrowing of
verbatim quotations merely "len[t] authenticity to this politically
significant material . . . complementing the reporting of the facts." 723
F.2d, at 208. The Court of Appeals was especially influenced by the
"politically significant" nature of the subject matter and its
conviction that it is not "the purpose of the Copyright Act to impede that
harvest of knowledge so necessary to a democratic state" or "chill
the activities of the press by forbidding a circumscribed use of copyrighted
words." Id., at 197, 209.
We agree with the Court of Appeals that copyright is intended to increase and
not to impede the harvest of knowledge. But we believe the Second Circuit gave
insufficient deference to the scheme established by the Copyright Act for
[471 U.S. 539, 546]
fostering the original works that provide the seed and substance of this
harvest. The rights conferred by copyright are designed to assure contributors
to the store of knowledge a fair return for their labors. Twentieth Century
Music Corp. v. Aiken,
[422 U.S. 151, 156 (1975)].
Article I, 8, of the Constitution provides:
"The Congress shall have Power . . . 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."
As we noted last Term: "[This] limited grant is a means by which an
important public purpose may be achieved. It is intended to motivate the
creative activity of authors and inventors by the provision of a special
reward, and to allow the public access to the products of their genius after
the limited period of exclusive control has expired." Sony Corp. of
America v. Universal City Studios, Inc.,
[464 U.S. 417, 429 (1984)].
"The monopoly created by copyright thus rewards the individual
author in order to benefit the public." Id., at 477 (dissenting opinion).
This principle applies equally to works of fiction and nonfiction. The book at
issue here, for example, was two years in the making, and began with a contract
giving the author's copyright to the publishers in exchange for their services
in producing and marketing the work. In preparing the book, Mr. Ford drafted
essays and word portraits of public figures and participated in hundreds of
taped interviews that were later distilled to chronicle his personal viewpoint.
It is evident that the monopoly granted by copyright actively served its
intended purpose of inducing the creation of new material of potential
Section 106 of the Copyright Act confers a bundle of exclusive rights to the
owner of the copyright.
Under the Copyright
[471 U.S. 539, 547]
Act, these rights - to publish, copy, and distribute the author's work - vest
in the author of an original work from the time of its creation. 106. In
practice, the author commonly sells his rights to publishers who offer
royalties in exchange for their services in producing and marketing the
author's work. The copyright owner's rights, however, are subject to certain
statutory exceptions. 107-118. Among these is 107 which codifies the
traditional privilege of other authors to make "fair use" of an
earlier writer's work.
In addition, no author may copyright facts or ideas. 102. The copyright is
limited to those aspects of the work - termed "expression" - that
display the stamp of the author's originality.
Creation of a nonfiction work, even a compilation of pure fact, entails
originality. See, e. g., Schroeder v. William Morrow & Co., 566 F.2d 3 (CA7
1977) (copyright in gardening directory); cf. Burrow-Giles Lithographic Co. v.
[111 U.S. 53, 58 (1884)]
(originator of a photograph may claim copyright in his work). The
copyright holders of "A Time to Heal" complied with the relevant
statutory notice and registration
[471 U.S. 539, 548]
procedures. See 106, 401, 408; App. to Pet. for Cert. C-20. Thus there is no
dispute that the unpublished manuscript of "A Time to Heal," as a
whole, was protected by 106 from unauthorized reproduction. Nor do respondents
dispute that verbatim copying of excerpts of the manuscript's original form of
expression would constitute infringement unless excused as fair use. See 1 M.
Nimmer, Copyright 2.11[B], p. 2-159 (1984) (hereinafter Nimmer). Yet copyright
does not prevent subsequent users from copying from a prior author's work those
constituent elements that are not original - for example, quotations borrowed
under the rubric of fair use from other copyrighted works, facts, or materials
in the public domain - as long as such use does not unfairly appropriate the
author's original contributions. Ibid.; A. Latman, Fair Use of Copyrighted
Works (1958), reprinted as Study No. 14 in Copyright Law Revision Studies Nos.
14-16, prepared for the Senate Committee on the Judiciary, 86th Cong., 2d
Sess., 7 (1960) (hereinafter Latman). Perhaps the controversy between the lower
courts in this case over copyrightability is more aptly styled a dispute over
whether The Nation's appropriation of unoriginal and uncopyrightable elements
encroached on the originality embodied in the work as a whole. Especially in
the realm of factual narrative, the law is currently unsettled regarding the
ways in which uncopyrightable elements combine with the author's original
contributions to form protected expression. Compare Wainwright Securities Inc.
v. Wall Street Transcript Corp., 558 F.2d 91 (CA2 1977) (protection accorded
author's analysis, structuring of material and marshaling of facts), with
Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (CA2 1980) (limiting
protection to ordering and choice of words). See, e. g., 1 Nimmer 2.11[D], at
2-164 - 2-165.
We need not reach these issues, however, as The Nation has admitted to lifting
verbatim quotes of the author's original language totaling between 300 and 400
words and constituting some 13% of The Nation article. In using generous
[471 U.S. 539, 549]
verbatim excerpts of Mr. Ford's unpublished manuscript to lend authenticity to
its account of the forthcoming memoirs, The Nation effectively arrogated to
itself the right of first publication, an important marketable subsidiary
right. For the reasons set forth below, 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 use within the meaning of
the Copyright Act.
Fair use was traditionally defined as "a privilege in others than the
owner of the copyright to use the copyrighted material in a reasonable manner
without his consent." H. Ball, Law of Copyright and Literary Property 260
(1944) (hereinafter Ball). The statutory formulation of the defense of fair use
in the Copyright Act reflects the intent of Congress to codify the common-law
doctrine. 3 Nimmer 13.05. Section 107 requires a case-by-case determination
whether a particular use is fair, and the statute notes four nonexclusive
factors to be considered. This approach was "intended to restate the
[pre-existing] judicial doctrine of fair use, not to change, narrow, or enlarge
it in any way." H. R. Rep. No. 94-1476, p. 66 (1976) (hereinafter House
"[T]he author's consent to a reasonable use of his copyrighted works ha[d]
always been implied by the courts as a necessary incident of the constitutional
policy of promoting the progress of science and the useful arts, since a
prohibition of such use would inhibit subsequent writers from attempting to
improve upon prior works and thus . . . frustrate the very ends sought to be
attained." Ball 260. Professor Latman, in a study of the doctrine of fair
use commissioned by Congress for the revision effort, see Sony Corp. of America
v. Universal City Studios, Inc.,
[464 U.S., at 462-463, n. 9]
(dissenting opinion), summarized prior law as turning on the
[471 U.S. 539, 550]
of the material copied or performed from the point of view of the reasonable
copyright owner. In other words, would the reasonable copyright owner have
consented to the use?" Latman 15.
As early as 1841, Justice Story gave judicial recognition to the doctrine in a
case that concerned the letters of another former President, George Washington.
"[A] reviewer may fairly cite largely from the original work, if his
design be really and truly to use the passages for the purposes of fair and
reasonable criticism. On the other hand, it is as clear, that if he thus cites
the most important parts of the work, with a view, not to criticise, but to
supersede the use of the original work, and substitute the review for it, such
a use will be deemed in law a piracy." Folsom v. Marsh, 9 F. Cas. 342,
344-345 (No. 4,901) (CC Mass.)
As Justice Story's hypothetical illustrates, the fair use doctrine has always
precluded a use that "supersede[s] the use of the original." Ibid.
Accord, S. Rep. No. 94-473, p. 65 (1975) (hereinafter Senate Report).
Perhaps because the fair use doctrine was predicated on the author's implied
consent to "reasonable and customary" use when he released his work
for public consumption, fair use traditionally was not recognized as a defense
[471 U.S. 539, 551]
of copying from an author's as yet unpublished works.
Under common-law copyright, "the property of the author . . . in his
intellectual creation [was] absolute until he voluntarily part[ed] with the
same." American Tobacco Co. v. Werckmeister,
[207 U.S. 284, 299 (1907)];
2 Nimmer 8.23, at 8-273. This absolute rule, however, was tempered in
practice by the equitable nature of the fair use doctrine. In a given case,
factors such as implied consent through de facto publication on performance or
dissemination of a work may tip the balance of equities in favor of
prepublication use. See Copyright Law Revision - Part 2: Discussion and
Comments on Report of the Register of Copyrights on General Revision of the
U.S. Copyright Law, 88th Cong., 1st Sess., 27 (H. R. Comm. Print 1963)
(discussion suggesting works disseminated to the public in a form not
constituting a technical "publication" should nevertheless be subject
to fair use); 3 Nimmer 13.05, at 13-62, n. 2. But it has never been seriously
disputed that "the fact that the plaintiff's work is unpublished . . . is
a factor tending to negate the defense of fair use." Ibid. Publication of
an author's expression before he has authorized its dissemination seriously
infringes the author's right to decide when and whether it will be made public,
a factor not present in fair use of published works.
[471 U.S. 539, 552]
Respondents contend, however, that Congress, in including first publication
among the rights enumerated in 106, which are expressly subject to fair use
under 107, intended that fair use would apply in pari materia to published and
unpublished works. The Copyright Act does not support this proposition.
The Copyright Act represents the culmination of a major legislative
reexamination of copyright doctrine. See Mills Music, Inc. v. Snyder,
[ 469 U.S. 153, 159
-160 (1985)]; Sony Corp. of America v. Universal City Studios, Inc.,
[ 464 U.S., at 462
-463, n. 9] (dissenting opinion). Among its other innovations, it eliminated
publication "as a dividing line between common law and statutory
protection," House Report, at 129, extending statutory protection to all
works from the time of their creation. It also recognized for the first time a
distinct statutory right of first publication, which had previously been an
element of the common-law protections afforded unpublished works. The Report of
the House Committee on the Judiciary confirms that "Clause (3) of section
106, establishes the exclusive right of publications . . . . Under this
provision the copyright owner would have the right to control the first public
distribution of an authorized copy . . . of his work." Id., at 62.
Though the right of first publication, like the other rights enumerated in 106,
is expressly made subject to the fair use provision of 107, fair use analysis
must always be tailored to the individual case. Id., at 65; 3 Nimmer 13.05[A].
[471 U.S. 539, 553]
nature of the interest at stake is highly relevant to whether a given use is
fair. From the beginning, those entrusted with the task of revision recognized
the "overbalancing reasons to preserve the common law protection of
undisseminated works until the author or his successor chooses to disclose
them." Copyright Law Revision, Report of the Register of Copyrights on the
General Revision of the U.S. Copyright Law, 87th Cong., 1st Sess., 41 (Comm.
Print 1961). The right of first publication implicates a threshold decision by
the author whether and in what form to release his work. First publication is
inherently different from other 106 rights in that only one person can be the
first publisher; as the contract with Time illustrates, the commercial value of
the right lies primarily in exclusivity. Because the potential damage to the
author from judicially enforced "sharing" of the first publication
right with unauthorized users of his manuscript is substantial, the balance of
equities in evaluating such a claim of fair use inevitably shifts.
The Senate Report confirms that Congress intended the unpublished nature of the
work to figure prominently in fair use analysis. In discussing fair use of
photocopied materials in the classroom the Committee Report states:
"A key, though not necessarily determinative, factor in fair use is
whether or not the work is available to the potential user. If the work is `out
of print' and unavailable for purchase through normal channels, the user may
have more justification for reproducing it . . . . The applicability of the
fair use doctrine to unpublished works is narrowly limited since, although the
work is unavailable, this is the result of a deliberate choice on the part of
the copyright owner. Under ordinary circumstances, the copyright owner's `right
of first publication' would outweigh any needs of reproduction for classroom
purposes." Senate Report, at 64.
Although the Committee selected photocopying of classroom materials to
illustrate fair use, it emphasized that "the same
[471 U.S. 539, 554]
general standards of fair use are applicable to all kinds of uses of
copyrighted material." Id., at 65. We find unconvincing respondents'
contention that the absence of the quoted passage from the House Report
indicates an intent to abandon the traditional distinction between fair use of
published and unpublished works. It appears instead that the fair use
discussion of photocopying of classroom materials was omitted from the final
Report because educators and publishers in the interim had negotiated a set of
guidelines that rendered the discussion obsolete. House Report, at 67. The
House Report nevertheless incorporates the discussion by reference, citing to
the Senate Report and stating: "The Committee has reviewed this
discussion, and considers it still has value as an analysis of various aspects
of the [fair use] problem." Ibid.
Even if the legislative history were entirely silent, we would be bound to
conclude from Congress' characterization of 107 as a "restatement"
that its effect was to preserve existing law concerning fair use of unpublished
works as of other types of protected works and not to "change, narrow, or
enlarge it." Id., at 66. We conclude that the unpublished nature of a work
is "[a] key, though not necessarily determinative, factor" tending to
negate a defense of fair use. Senate Report, at 64. See 3 Nimmer 13.05, at
13-62, n. 2; W. Patry, The Fair Use Privilege in Copyright Law 125 (1985)
We also find unpersuasive respondents' argument that fair use may be made of a
soon-to-be-published manuscript on the ground that the author has demonstrated
he has no interest in nonpublication. This argument assumes that the
unpublished nature of copyrighted material is only relevant to letters or other
confidential writings not intended for dissemination. It is true that
common-law copyright was often enlisted in the service of personal privacy. See
Brandeis & Warren, The Right to Privacy, 4 Harv. L. Rev. 193, 198-199 (1890).
In its commercial guise, however, an author's right to choose when he will
publish is no less deserving of protection.
[471 U.S. 539, 555]
The period encompassing the work's initiation, its preparation, and its
grooming for public dissemination is a crucial one for any literary endeavor.
The Copyright Act, which accords the copyright owner the "right to control
the first public distribution" of his work, House Report, at 62, echos the
common law's concern that the author or copyright owner retain control
throughout this critical stage. See generally Comment, The Stage of Publication
as a "Fair Use" Factor: Harper & Row, Publishers v. Nation
Enterprises, 58 St. John's L. Rev. 597 (1984). The obvious benefit to author
and public alike of assuring authors the leisure to develop their ideas free
from fear of expropriation outweighs any short-term "news value" to
be gained from premature publication of the author's expression. See Goldstein,
Copyright and the First Amendment, 70 Colum. L. Rev. 983, 1004-1006 (1970) (The
absolute protection the common law accorded to soon-to-be published works
"[was] justified by [its] brevity and expedience"). The author's
control of first public distribution implicates not only his personal interest
in creative control but his property interest in exploitation of prepublication
rights, which are valuable in themselves and serve as a valuable adjunct to
publicity and marketing. See Belushi v. Woodward, 598 F. Supp. 36 (DC 1984)
(successful marketing depends on coordination of serialization and release to
public); Marks, Subsidiary Rights and Permissions, in What Happens in Book
Publishing 230 (C. Grannis ed. 1967) (exploitation of subsidiary rights is
necessary to financial success of new books). Under ordinary circumstances, the
author's right to control the first public appearance of his undisseminated
expression will outweigh a claim of fair use.
Respondents, however, contend that First Amendment values require a different
rule under the circumstances of this case. The thrust of the decision below is
that "[t]he scope of [fair use] is undoubtedly wider when the information
[471 U.S. 539, 556]
conveyed relates to matters of high public concern." Consumers Union of
the United States, Inc. v. General Signal Corp., 724 F.2d 1044, 1050 (CA2 1983)
(construing 723 F.2d 195 (1983) (case below) as allowing advertiser to quote
Consumer Reports), cert. denied,
[469 U.S. 823 (1984)].
Respondents advance the substantial public import of the subject matter
of the Ford memoirs as grounds for excusing a use that would ordinarily not
pass muster as a fair use - the piracy of verbatim quotations for the purpose
of "scooping" the authorized first serialization. Respondents explain
their copying of Mr. Ford's expression as essential to reporting the news story
it claims the book itself represents. In respondents' view, not only the facts
contained in Mr. Ford's memoirs, but "the precise manner in which [he]
expressed himself [were] as newsworthy as what he had to say." Brief for
Respondents 38-39. Respondents argue that the public's interest in learning
this news as fast as possible outweighs the right of the author to control its
The Second Circuit noted, correctly, that copyright's idea/expression dichotomy
"strike[s] a definitional balance between the First Amendment and the
Copyright Act by permitting free communication of facts while still protecting
an author's expression." 723 F.2d, at 203. No author may copyright his
ideas or the facts he narrates. 17 U.S.C. 102(b). See, e. g., New York Times
Co. v. United States,
[403 U.S. 713, 726, n. (1971) (BRENNAN, J., concurring)] (Copyright laws are
not restrictions on
freedom of speech as copyright protects only form of expression and not the
ideas expressed); 1 Nimmer 1.10[B]2.. As this Court long ago observed:
"[T]he news element - the information respecting current events contained
in the literary production - is not the creation of the writer, but is a report
of matters that ordinarily are publici juris; it is the history of the
day." International News Service v. Associated Press,
[248 U.S. 215, 234 (1918)]. But copyright assures those who write and publish
such as "A Time to Heal" that
[471 U.S. 539, 557]
they may at least enjoy the right to market the original expression contained
therein as just compensation for their investment. Cf. Zacchini v.
Scripps-Howard Broadcasting Co.,
[433 U.S. 562, 575 (1977)].
Respondents' theory, however, would expand fair use to effectively destroy any
expectation of copyright protection in the work of a public figure. Absent such
protection, there would be little incentive to create or profit in financing
such memoirs, and the public would be denied an important source of significant
historical information. The promise of copyright would be an empty one if it
could be avoided merely by dubbing the infringement a fair use "news
report" of the book. See Wainwright Securities Inc. v. Wall Street
Transcript Corp., 558 F.2d 91 (CA2 1977), cert. denied,
[434 U.S. 1014 (1978)].
Nor do respondents assert any actual necessity for circumventing the copyright
scheme with respect to the types of works and users at issue here.
Where an author and publisher have invested extensive resources in creating an
original work and are poised to release it to the public, no legitimate aim is
served by pre-empting the right of first publication. The fact that the 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. To paraphrase another
recent Second Circuit decision:
"[Respondent] possessed an unfettered right to use any factual information
revealed in [the memoirs] for the purpose of enlightening its audience, but it
[471 U.S. 539, 558]
no need to 'bodily appropriate' [Mr. Ford's] 'expression' of that information
by utilizing portions of the actual [manuscript]. The public interest in the
free flow of information is assured by the law's refusal to recognize a valid
copyright in facts. The fair use doctrine is not a license for corporate theft,
empowering a court to ignore a copyright whenever it determines the underlying
work contains material of possible public importance." Iowa State
University Research Foundation, Inc. v. American Broadcasting Cos., Inc., 621
F.2d 57, 61 (1980) (citations omitted).
Accord, Roy Export Co. Establishment v. Columbia Broadcasting System, Inc., 503
F. Supp. 1137 (SDNY 1980) ("newsworthiness" of material copied does
not justify copying), aff'd, 672 F.2d 1095 (CA2), cert. denied,
[459 U.S. 826 (1982); Quinto v. Legal Times of Washington, Inc., 506 F. Supp.
554 (DC 1981)]
In our haste to disseminate news, it should not be forgotten that the Framers
intended copyright itself to be the engine of free expression. By establishing
a marketable right to the use of one's expression, copyright supplies the
economic incentive to create and disseminate ideas. This Court stated in Mazer
[347 U.S. 201, 209 (1954)]:
"The economic philosophy behind the clause empowering Congress to grant
patents and copyrights is the conviction that encouragement of individual
effort by personal gain is the best way to advance public welfare through the
talents of authors and inventors in `Science and useful Arts.'"
And again in Twentieth Century Music Corp. v. Aiken:
"The immediate effect of our copyright law is to secure a fair return for
an 'author's' creative labor. But the ultimate aim is, by this incentive, to
stimulate [the creation of useful works] for the general public good."
[422 U.S., at 156]
[471 U.S. 539, 559]
It is fundamentally at odds with the scheme of copyright to accord lesser
rights in those works that are of greatest importance to the public. Such a
notion ignores the major premise of copyright and injures author and public
alike. "[T]o propose that fair use be imposed whenever the `social value
[of dissemination] . . . outweighs any detriment to the artist,' would be to
propose depriving copyright owners of their right in the property precisely
when they encounter those users who could afford to pay for it." Gordon,
Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax
Case and its Predecessors, 82 Colum. L. Rev. 1600, 1615 (1982). And as one
commentator has noted: "If every volume that was in the public interest
could be pirated away by a competing publisher, . . . the public [soon] would
have nothing worth reading." Sobel, Copyright and the First Amendment: A
Gathering Storm? 19 ASCAP Copyright Law Symposium 43, 78 (1971). See generally
Comment, Copyright and the First Amendment; Where Lies the Public Interest?, 59
Tulane L. Rev. 135 (1984).
Moreover, freedom of thought and expression "includes both the right to
speak freely and the right to refrain from speaking at all." Wooley v.
[430 U.S. 705, 714 (1977)] (BURGER, C. J.). We do not suggest this right not to
sanction abuse of the copyright owner's monopoly as an instrument to suppress
facts. But in the words of New York's Chief Judge Fuld:
"The essential thrust of the First Amendment is to prohibit improper
restraints on the voluntary public expression of ideas; it shields the man who
wants to speak or publish when others wish him to be quiet. There is
necessarily, and within suitably defined areas, a concomitant freedom not to
speak publicly, one which serves the same ultimate end as freedom of speech in
its affirmative aspect." Estate of Hemingway v. Random House, Inc., 23 N.
Y. 2d 341, 348, 244 N. E. 2d 250, 255 (1968).
[471 U.S. 539, 560]
Courts and commentators have recognized that copyright, and the right of first
publication in particular, serve this countervailing First Amendment value. See
Schnapper v. Foley, 215 U.S. App. D.C. 59, 667 F.2d 102 (1981), cert. denied,
[455 U.S. 948 (1982)]; 1 Nimmer 1.10[B], at 1-70, n. 24; Party 140-142.
In view of the First Amendment protections already embodied in the Copyright
Act's distinction between copyrightable expression and uncopyrightable facts
and ideas, and the latitude for scholarship and comment traditionally afforded
by fair use, we see no warrant for expanding the doctrine of fair use to create
what amounts to a public figure exception to copyright. Whether verbatim
copying from a public figure's manuscript in a given case is or is not fair
must be judged according to the traditional equities of fair use.
Fair use is a mixed question of law and fact. Pacific & Southern Co. v. Duncan,
744 F.2d 1490, 1495, n. 8 (CA11 1984). Where the district court has found facts
sufficient to evaluate each of the statutory factors, an appellate court
"need not remand for further factfinding . . . [but] may conclude as a
matter of law that [the challenged use] do[es] not qualify as a fair use of the
copyrighted work." Id., at 1495. Thus whether The Nation article
constitutes fair use under 107 must be reviewed in light of the principles
discussed above. The factors enumerated in the section are not meant to be
"[S]ince the doctrine is an equitable rule of reason, no
generally applicable definition is possible, and each case raising the question
must be decided on its own facts." House Report, at 65.
The four factors
identified by Congress as especially relevant in determining whether the use
was fair are: (1) the purpose and character of the use; (2) the nature of the
copyrighted work; (3) the substantiality of the portion used in relation to the
copyrighted work as [471 U.S. 539, 561]
a whole; (4) the effect on the potential market for or value of the copyrighted
We address each one separately.
Purpose of the Use. The Second Circuit correctly identified news reporting as
the general purpose of The Nation's use. News reporting is one of the examples
enumerated in 107 to "give some idea of the sort of activities the courts
might regard as fair use under the circumstances." Senate Report, at 61.
This listing was not intended to be exhaustive, see ibid.; 101 (definition of
"including" and "such as"), or to single out any particular
use as presumptively a "fair" use. The drafters resisted pressures
from special interest groups to create presumptive categories of fair use, but
structured the provision as an affirmative defense requiring a case-by-case
analysis. See H. R. Rep. No. 83, 90th Cong., 1st Sess., 37 (1967); Patry 477,
n. 4. "[W]hether a use referred to in the first sentence of section 107 is
a fair use in a particular case will depend upon the application of the
determinative factors, including those mentioned in the second sentence."
Senate Report, at 62. The fact that an article arguably is "news" and
therefore a productive use is simply one factor in a fair use analysis.
We agree with the Second Circuit that the trial court erred in fixing on
whether the information contained in the memoirs was actually new to the
public. As Judge Meskill wisely noted, "[c]ourts should be chary of
deciding what is and what is not news." 723 F.2d, at 215 (dissenting). Cf.
Gertz v. Robert Welch, Inc.,
[418 U.S. 323, 345-346 (1974)]. "The issue is not what constitutes `news,' but whether a
claim of newsreporting is a valid fair use defense to an infringement of
copyrightable expression." Patry 119. The Nation has every right to seek
to be the first to publish information. But The Nation went beyond simply
reporting uncopyrightable information and actively sought to exploit the
headline value of its infringement, making a "news event" out of its
unauthorized first publication of a noted figure's copyrighted expression.
[471 U.S. 539, 562]
The fact that a publication was commercial as opposed to nonprofit is a
separate factor that tends to weigh against a finding of fair use.
"[E]very commercial use of copyrighted material is presumptively an unfair
exploitation of the monopoly privilege that belongs to the owner of the
copyright." Sony Corp. of America v. Universal City Studios, Inc.,
[464 U.S., at 451]. In arguing that the purpose of news reporting is not purely commercial, The
Nation misses the point entirely. The crux of the profit/nonprofit distinction
is not whether the sole motive of the use is monetary gain but whether the user
stands to profit from exploitation of the copyrighted material without paying
the customary price. See Roy Export Co. Establishment v. Columbia Broadcasting
System, Inc., 503 F. Supp., at 1144; 3 Nimmer 13.05[A]1., at 13-71, n. 25.3.
In evaluating character and purpose we cannot ignore The Nation's stated
purpose of scooping the forthcoming hard-cover and Time abstracts.
App. to Pet. for Cert. C-27. The Nation's use had not merely the incidental
effect but the intended purpose of supplanting the copyright holder's
commercially valuable right of first publication. See Meredith Corp. v. Harper
& Row, Publishers, Inc., 378 F. Supp. 686, 690 (SDNY) (purpose of text was to
compete with original), aff'd, 500 F.2d 1221 (CA2 1974). Also relevant to the
"character" of the use is "the propriety of the defendant's
conduct." 3 Nimmer 13.05[A], at 13-72. "Fair use presupposes `good
faith' and `fair dealing.'" Time Inc. v. Bernard Geis Associates, 293 F.
Supp. 130, 146 (SDNY 1968), quoting
[471 U.S. 539, 563]
Schulman, Fair Use and the Revision of the Copyright Act, 53 Iowa L. Rev. 832
(1968). The trial court found that The Nation knowingly exploited a purloined
manuscript. App. to Pet. for Cert. B-1, C-20 - C-21, C-28 - C-29. Unlike the
typical claim of fair use, The Nation cannot offer up even the fiction of
consent as justification. Like its competitor news-weekly, it was free to bid
for the right of abstracting excerpts from "A Time to Heal." Fair use
"distinguishes between `a true scholar and a chiseler who infringes a work
for personal profit.'" Wainwright Securities Inc. v. Wall Street
Transcript Corp., 558 F.2d, at 94, quoting from Hearings on Bills for the
General Revision of the Copyright Law before the House Committee on the
Judiciary, 89th Cong., 1st Sess., ser. 8, pt. 3, p. 1706 (1966) (statement of
Nature of the Copyrighted work. Second, the Act directs attention to the nature
of the copyrighted work. "A Time to Heal" may be characterized as an
unpublished historical narrative or autobiography. The law generally recognizes
a greater need to disseminate factual works than works of fiction or fantasy.
See Gorman, Fact or Fancy? The Implications for Copyright, 29 J. Copyright Soc.
560, 561 (1982).
"[E]ven within the field of fact works, there are gradations as to the
relative proportion of fact and fancy. One may move from sparsely embellished
maps and directories to elegantly written biography. The extent to which one
must permit expressive language to be copied, in order to assure dissemination
of the underlying facts, will thus vary from case to case." Id., at 563.
Some of the briefer quotes from the memoirs are arguably necessary adequately
to convey the facts; for example, Mr. Ford's characterization of the White
House tapes as the "smoking gun" is perhaps so integral to the idea
expressed as to be inseparable from it. Cf. 1 Nimmer 1.10[C]. But The Nation
did not stop at isolated phrases and instead excerpted subjective descriptions
and portraits of public figures whose power lies in the author's individualized
[471 U.S. 539, 564]
use, focusing on the most expressive elements of the work, exceeds that
necessary to disseminate the facts.
The fact that a work is unpublished is a critical element of its
"nature." 3 Nimmer 13.05[A]; Comment, 58 St. John's L. Rev., at 613.
Our prior discussion establishes that the scope of fair use is narrower with
respect to unpublished works. While even substantial quotations might qualify
as fair use in a review of a published work or a news account of a speech that
had been delivered to the public or disseminated to the press, see House
Report, at 65, the author's right to control the first public appearance of his
expression weighs against such use of the work before its release. The right of
first publication encompasses not only the choice whether to publish at all,
but also the choices of when, where, and in what form first to publish a work.
In the case of Mr. Ford's manuscript, the copyright holders' interest in
confidentiality is irrefutable; the copyright holders had entered into a
contractual undertaking to "keep the manuscript confidential" and
required that all those to whom the manuscript was shown also "sign an
agreement to keep the manuscript confidential." App. to Pet. for Cert.
C-19 - C-20. While the copyright holders' contract with Time required Time to
submit its proposed article seven days before publication, The Nation's
clandestine publication afforded no such opportunity for creative or quality
control. Id., at C-18. It was hastily patched together and contained "a
number of inaccuracies." App. 300b-300c (testimony of Victor Navasky). A
use that so clearly infringes the copyright holder's interests in
confidentiality and creative control is difficult to characterize as
Amount and Substantiality of the Portion Used. Next, the Act directs us to
examine the amount and substantiality of the portion used in relation to the
copyrighted work as a whole.
In absolute terms, the words actually quoted were
an insubstantial portion of "A Time to Heal." The District Court,
however, found that "[T]he Nation took what was
[471 U.S. 539, 565]
essentially the heart of the book."
557 F. Supp., at 1072.
We believe the
Court of Appeals erred in overruling the District Judge's evaluation of the
qualitative nature of the taking. See, e. g., Roy Export Co. Establishment v.
Columbia Broadcasting System, Inc., 503 F. Supp., at 1145 (taking of 55 seconds
out of 1 hour and 29-minute film deemed qualitatively substantial). A Time
editor described the chapters on the pardon as "the most interesting and
moving parts of the entire manuscript." Reply Brief for Petitioners 16, n.
8. The portions actually quoted were selected by Mr. Navasky as among the most
powerful passages in those chapters. He testified that he used verbatim
excerpts because simply reciting the information could not adequately convey
the "absolute certainty with which [Ford] expressed himself," App.
303; or show that "this comes from President Ford," id., at 305; or
carry the "definitive quality" of the original, id., at 306. In
short, he quoted these passages precisely because they qualitatively embodied
Ford's distinctive expression.
As the statutory language indicates, a taking may not be excused merely because
it is insubstantial with respect to the infringing work. As Judge Learned Hand
cogently remarked, "no plagiarist can excuse the wrong by showing how much
of his work he did not pirate." Sheldon v. Metro-Goldwyn Pictures Corp.,
81 F.2d 49, 56 (CA2), cert. denied, [298 U.S. 669
(1936)]. Conversely, the fact that a substantial portion of the infringing work
was copied verbatim is evidence of the qualitative value of the copied
material, both to the originator and to the plagiarist who seeks to profit from
marketing someone else's copyrighted expression.
Stripped to the verbatim quotes,
the direct takings from the unpublished manuscript constitute at least 13% of
[471 U.S. 539, 566]
article. See Meeropol v. Nizer, 560 F.2d 1061, 1071 (CA2 1977) (copyrighted
letters constituted less than 1% of infringing work but were prominently
featured). The Nation article is structured around the quoted excerpts which
serve as its dramatic focal points. See Appendix to this opinion, post, p. 570.
In view of the expressive value of the excerpts and their key role in the
infringing work, we cannot agree with the Second Circuit that the
"magazine took a meager, indeed an infinitesimal amount of Ford's original
language." 723 F.2d, at 209.
Effect on the Market. Finally, the Act focuses on "the effect of the use
upon the potential market for or value of the copyrighted work." This last
factor is undoubtedly the single most important element of fair use.
See 3 Nimmer 13.05[A], at 13-76, and cases cited therein. "Fair use, when
properly applied, is limited to copying by others which
[471 U.S. 539, 567]
does not materially impair the marketability of the work which is copied."
1 Nimmer 1.10[D], at 1-87. The trial court found not merely a potential but an
actual effect on the market. Time's cancellation of its projected serialization
and its refusal to pay the $12,500 were the direct effect of the infringement.
The Court of Appeals rejected this factfinding as clearly erroneous, noting
that the record did not establish a causal relation between Time's
nonperformance and respondents' unauthorized publication of Mr. Ford's
expression as opposed to the facts taken from the memoirs. We disagree. Rarely
will a case of copyright infringement present such clear-cut evidence of actual
damage. Petitioners assured Time that there would be no other authorized
publication of any portion of the unpublished manuscript prior to April 23,
1979. Any publication of material from chapters 1 and 3 would permit Time to
renegotiate its final payment. Time cited The Nation's article, which contained
verbatim quotes from the unpublished manuscript, as a reason for its
nonperformance. With respect to apportionment of profits flowing from a
copyright infringement, this Court has held that an infringer who commingles
infringing and noninfringing elements "must abide the consequences, unless
he can make a separation of the profits so as to assure to the injured party
all that justly belongs to him." Sheldon v. Metro-Goldwyn Pictures Corp.,
[309 U.S. 390, 406 (1940)]. Cf. 17 U.S.C. 504(b) (the infringer is required to prove elements of
profits attributable to other than the infringed work). Similarly, once a
copyright holder establishes with reasonable probability the existence of a
causal connection between the infringement and a loss of revenue, the burden
properly shifts to the infringer to show that this damage would have occurred
had there been no taking of copyrighted expression. See 3 Nimmer 14.02, at 14-7
- 14-8.1. Petitioners established a prima facie case of actual damage that
respondents failed to rebut. See Stevens Linen Associates,
[471 U.S. 539, 568]
Inc. v. Mastercraft Corp., 656 F.2d 11, 15 (CA2 1981). The trial court properly
awarded actual damages and accounting of profits. See 17 U.S.C. 504(b).
More important, to negate fair use one need only show that if the challenged
use "should become widespread, it would adversely affect the potential
market for the copyrighted work." Sony Corp. of America v. Universal City
[464 U.S., at 451] (emphasis added); id., at 484, and n. 36 (collecting cases) (dissenting
opinion). This inquiry must take account not only of harm to the original but
also of harm to the market for derivative works. See Iowa State University
Research Foundation, Inc. v. American Broadcasting Cos., 621 F.2d 57 (CA2
1980); Meeropol v. Nizer, supra, at 1070; Roy Export v. Columbia Broadcasting
System, Inc., 503 F. Supp., at 1146. "If the defendant's work adversely
affects the value of any of the rights in the copyrighted work (in this case
the adaptation [and serialization] right) the use is not fair." 3 Nimmer
13.05[B], at 13-77 - 13-78 (footnote omitted).
It is undisputed that the factual material in the balance of The Nation's
article, besides the verbatim quotes at issue here, was drawn exclusively from
the chapters on the pardon. The excerpts were employed as featured episodes in
a story about the Nixon pardon - precisely the use petitioners had licensed to
Time. The borrowing of these verbatim quotes from the unpublished manuscript
lent The Nation's piece a special air of authenticity - as Navasky expressed
it, the reader would know it was Ford speaking and not The Nation. App. 300c.
Thus it directly competed for a share of the market for prepublication
excerpts. The Senate Report states:
"With certain special exceptions . . . a use that supplants any part of
the normal market for a copyrighted work would ordinarily be considered an
infringement." Senate Report, at 65.
[471 U.S. 539, 569]
Placed in a broader perspective, a fair use doctrine that permits extensive
prepublication quotations from an unreleased manuscript without the copyright
owner's consent poses substantial potential for damage to the marketability of
first serialization rights in general. "Isolated instances of minor
infringements, when multiplied many times, become in the aggregate a major
inroad on copyright that must be prevented." Ibid.
The Court of Appeals erred in concluding that The Nation's use of the
copyrighted material was excused by the public's interest in the subject
matter. It erred, as well, in overlooking the unpublished nature of the work
and the resulting impact on the potential market for first serial rights of
permitting unauthorized prepublication excerpts under the rubric of fair use.
Finally, in finding the taking "infinitesimal," the Court of Appeals
accorded too little weight to the qualitative importance of the quoted passages
of original expression. In sum, the traditional doctrine of fair use, as
embodied in the Copyright Act, does not sanction the use made by The Nation of
these copyrighted materials. Any copyright infringer may claim to benefit the
public by increasing public access to the copyrighted work. See Pacific &
Southern Co. v. Duncan, 744 F.2d, at 1499-1500. But Congress has not designed,
and we see no warrant for judicially imposing, a "compulsory license"
permitting unfettered access to the unpublished copyrighted expression of
The Nation conceded that its verbatim copying of some 300 words of direct
quotation from the Ford manuscript would constitute an infringement unless
excused as a fair use. Because we find that The Nation's use of these verbatim
excerpts from the unpublished manuscript was not a fair use, the judgment of
the Court of Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
[471 U.S. 539, 570]