Harper & Row, Publishers, Inc. v. Nation Enterprises

PETITIONER:Harper & Row, Publishers, Inc.
RESPONDENT:Nation Enterprises
LOCATION:United States District Court for the Middle District of North Carolina, Greensboro Division

DOCKET NO.: 83-1632
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 471 US 539 (1985)
ARGUED: Nov 06, 1984
DECIDED: May 20, 1985

ADVOCATES:
Edward A. Miller – Argued the cause for the petitioner
Floyd Abrams – Argued the cause for the respondents

Facts of the case

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 Before Time released its article, an unauthorized source provided The Nation Magazine with the unpublished Ford manuscript.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.

Question

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of 1976’s fair use doctrine sanction The Nation’s unauthorized use of quotations from former President Gerald Ford’s unpublished manuscript?

Warren E. Burger:

We’ll hear arguments next in Harper and Row against Nation Enterprises.

Mr. Miller, I think you may proceed whenever you’re ready.

Edward A. Miller:

Thank you, Mr. Chief Justice, and may it please the Court.

This case presents two important issues concerning the relationship between copyright and First Amendment interests.

Warren E. Burger:

Would you raise your voice a little.

Edward A. Miller:

Yes.

First, does the First Amendment require that the scope of protection for a copyrighted work of non-fiction dealing with news and history be narrowed?

Secondly, does the policy in the Fair Use case, does the policy of facilitating the harvest of knowledge call for a sanction for the use of an unpublished manuscript that the author himself is about to publish?

The case also raises the question of whether the court below heard, first of all, in failing to consider that the manuscript was unpublished; and secondly, in failing to consider that the user added nothing at all to the material that he published.

In February of 1977, shortly after leaving office, President Ford signed a publishing agreement with Harper & Row and the Reader’s Digest to publish his memoirs.

President Ford retained an experienced writer, Trevor Armbrister, to assist him in that task, and the work began almost at once on a project that was to take two years, that is, the writing of the book.

The District Court has detailed findings of the extensive work that went into that, and I’ll just mention one or two of those facts.

Trevor Armbrister met with President Ford on 200 separate occasions for interviews, and each of those interviews lasted two hours each.

Those interviews were taped and they were typed up, and they resulted in 3600 legal sized transcripts pages of those interviews.

Trevor Armbrister took that material–

William H. Rehnquist:

Do you have any idea of how many words to the page?

Edward A. Miller:

–No, Your Honor, I don’t.

I don’t know how many there were.

Trevor Armbrister took that material and he took material of almost equal mass from his interviews with others, together with a mountain of material from public records and the like, and then out of that he prepared a manuscript for President Ford.

President Ford reviewed that manuscript word for word, and he then reviewed three subsequent revisions word for word before finally giving his okay for the manuscript to be published.

In March, 1979, approximately two years later, Harper & Row’s subsidiary right department began to contact newspapers and magazines to ascertain if any of them were interested in publishing excerpts from this book prior to book publication, a right that is referred to in the book publishing trade as “first serial rights”.

In circulating that manuscript, the subsidiary rights department secured a confidentiality agreement from each of the firms to whom it was given.

Eventually an agreement was signed with Time Magazine whereby Time agreed to publish excerpts from Chapters 1 and 3 of the book, a 7500-word excerpt which was to appear in the Time Magazine issue that was to go on sale on April 16th, 1979.

That agreement was entered into in the middle of March, 1979.

The agreement also provided that if for any reason material from Chapters 1 and 3 of the manuscript were published prior to Time’s publication, Time would have the right to renegotiate the second installment of the advance, which was $12,500.

Approximately two weeks later, a copy of the manuscript found its way into the hands of the editor of The Nation Magazine.

The editor testified that he did not solicit it and did not pay for it.

He has never revealed who the source was, but he has acknowledged that he knew that the source had no authority to give it to him.

Working quickly over a weekend, he rushed into print with an article that was derived almost exclusively from the memoirs.

Eighty percent of it was from the memoirs, and what wasn’t from the memoirs was either introduction or conclusion, or a few transition sentences.

Edward A. Miller:

The article quoted verbatim from several portions of the manuscript.

It included President Ford’s summary of the underlying philosophy for pardoning Nixon.

It included a vivid description of–

William H. Rehnquist:

You say, Mr. Miller, that it included President Ford’s summary of his reasons for the pardon, do you mean by that that it quoted directly or that it simply paraphrased?

Edward A. Miller:

–There was a quote in which President Ford summarized his overall philosophy.

In fact, he predated to the time when he was in law school, and he said that the basic underlying philosophy that governed my decision here was the fact that public policy sometimes has to take precedence over the rule of law, then he went on and expanded that somewhat, and that was quoted verbatim.

That particular passage was quoted verbatim.

He also quoted verbatim a vivid description of Nixon’s–

Warren E. Burger:

Was that material available anywhere else?

Edward A. Miller:

–President Ford’s–

Warren E. Burger:

In prior speeches, or articles?

Edward A. Miller:

–That particular material was the material that President Ford created as he wrote the book, and that particular material was not available.

It also included President Ford’s assessment of Nixon’s character, which President Ford had written out in longhand during that interviewing process that I described, and that also was copied verbatim by Nation in the article.

Sandra Day O’Connor:

Mr. Miller, do you take the position that the copyright allows President Ford to license publication of those facts, or just his written expression or choice of words in expressing?

Edward A. Miller:

Just his expression, Justice O’Connor, as that term has been defined traditionally in the copyright courts.

Byron R. White:

How many total words were quoted, actually quoted?

Edward A. Miller:

How many were quoted?

There was approximately 1800 words altogether derived from the manuscript, and about 700, I think, were quoted and the balance were paraphrased.

Byron R. White:

Seven hundred were quoted?

Edward A. Miller:

Yes.

The balance constitutes paraphrase of the material in the manuscript.

Byron R. White:

How many did the Court of Appeals think were quoted?

Edward A. Miller:

The Court of Appeals did a stripping away exercise, and ended up with 300 words that in their view represented copyrightable expression.

Byron R. White:

Whose word should we take?

Edward A. Miller:

Well, Your Honor, Justice White, I think–

Byron R. White:

Do we have to count them?

Edward A. Miller:

–I think it is not a question of counting.

I think that the problem is that the majority–

Byron R. White:

You say that it included a summary of his philosophy going back to law school, an assessment of President Nixon’s character.

If it gets down to 300 words, that is getting pretty short to cover those fields, isn’t it?

Edward A. Miller:

–Your Honor, I think that 300 words of expression should be protected, certainly in a manuscript that hasn’t been published yet.

But, if I can address your point, it is not really a question of counting words, I think, it is a question of the fact that the majority applied the wrong standards in determining copyrightability, and that is one of the major points we make on the copyrightability.

Lewis F. Powell, Jr.:

The copyright Act applies to works, as I understand it, not to words.

Is that correct?

Edward A. Miller:

Yes, Justice Powell.

Lewis F. Powell, Jr.:

It uses the term “works”, doesn’t it?

Edward A. Miller:

I think the Copyright Act applies to protect expression, and expression has been defined in cases to include the following, this is a reading from a Second Circuit case: What is protected is the manner of expression, the author’s analysis or interpretation of events, the way he structures his material and marshals his facts, his choice of words, and the emphasis he gives to the particular developments.

“That is a quote from the Second Circuit opinion in Wainwright, and that was the definition of expression. “

The majority in this case didn’t follow that definition in determining what was copyrightable in the copied portions of the manuscript.

What the majority did, was they said, expression is limited to barest elements, to literal copying, to the ordering and choice of the words themselves.

We submit that traditional copyright cases have always recognized that copyright protection for expression goes beyond just the literal words themselves, to protect, as the dissent noted in this case, selection, arrangement, emphasis, and anything else that makes original.

William H. Rehnquist:

Mr. Miller, it isn’t just a question that he who reads may count as to how many words were copyrightable, is that the Court of Appeals had one view of copyrightability, and I take it that you have a somewhat broader view, and that is why you reach a higher number.

Edward A. Miller:

That’s correct.

That’s correct, Justice Rehnquist, that is the reason for the difference.

The majority applied, we submit, an incorrect standard in a second respect.

They adopted a dissection–

Byron R. White:

I take it that you would say that even there was not a single instance in this story that you could identify as a literal quote, you would think that there could be a violation of copyright.

Edward A. Miller:

–I think it is certainly possible, Justice White, that there could be a violation in that situation, but that, of course, isn’t the situation here.

Here there was use of exact language.

Indeed, the editor of The Nation Magazine testified that he took this passage, he said, because that was Ford’s own way of saying it.

He took another passage, he said, because of the absolutely certainty with which Ford addressed himself.

He took still another passage because… he quoted it because it was a much more powerful statement for the reader.

Sandra Day O’Connor:

Mr. Miller, do you think that the fact that it was an unpublished work expands your definition of what is protectable under the copyright law, or is the fact that it was unpublished in your view just one element of determining Fair Use?

Edward A. Miller:

I think the fact that it wasn’t published doesn’t expand the scope of what is protectable, but it is certainly a very important factor in determining Fair Use.

John Paul Stevens:

Mr. Miller, it would be helpful to me, in trying to focus on the difference between your two positions, if you could identify one or two of the passages that you think are clearly copyrightable, and they think are not, because talking in generalities, it is always a little hard to focus on what the difference is.

Edward A. Miller:

President Ford has a discussion in the book that describes his discussions with Alexander Haig during that eight-day period prior to the time that he became President.

He covered a lot of that same material in the Hungate testimony, but the material in the book, if you compare the two, has quite a different emphasis from what it has in Hungate.

The material in the book includes President Ford’s subjective feelings about those events.

He tells how, for example, President Nixon had reassured him over many months that he would ultimately prevail, and that the facts would justify him.

He says how hurt he was, the deep hurt that he had when that material was revealed.

Edward A. Miller:

He includes also the reaction of his aides to Alexander Haig’s discussion of the pardon, and how they reacted to that.

All of that creates a subjective… it gives the subjective feelings that Ford had during those things.

President Ford testified in his deposition that what he tried to add to the book was the more subjective, the more personal feelings that went through his mind for the time the pardon became a possibility.

John Paul Stevens:

One of the examples that you have given, I guess, is this written statement that President Ford read to General Haig over the telephone, I guess it was.

Is there a dispute between you as to whether that particular writing was copyrightable?

Edward A. Miller:

No, there really isn’t because our position, and I think the District Court’s position was that the totality of Ford’s expression is copyrightable.

John Paul Stevens:

Just take the quote itself, is that in your view copyrightable?

Edward A. Miller:

The quote itself, Your Honor, don’t I think it was copyrightable, but we are not so contending in this case.

John Paul Stevens:

Is see.

Edward A. Miller:

The reason why it is not copyrightable, and we are not contending it is, is that the quote itself was disclosed.

It is the same thing that President Ford said in the Hungate testimony, and that would get into a very difficult question, copyright protection for government work.

John Paul Stevens:

Let me be sure I understand your entire position.

You are saying that that statement as a part of his general description of that particular event was copyrightable?

Edward A. Miller:

Yes.

John Paul Stevens:

I see.

Edward A. Miller:

Still another example, Your Honor, President Ford describes many factors that influenced him in granting the pardon, the advice that he received from various people, and the advice that he received from Henry Ruth, and so forth and so on.

Our position is that the totality of that expression, including the advice and the reaction that Ford had to it represents Ford’s expression.

The Nation position, as I understand it, is that what one should do in determining copyrightability is to look at each of those little pieces of advice separately and say, well, this is not copyrightable, and therefore that is not entitled to further consideration.

We both agree that the Ruth Memorandum per se is not copyrightable.

We urge that President Ford’s entire expression, including the Ruth Memorandum and the impact it had on him, represents copyrightable expression as it has been traditionally viewed by the courts–

John Paul Stevens:

Let me ask just one other question here.

On some of these example, do you think the that President Ford is not an ordinary author affects the determination of the copyrightability of some of this material?

In other words, there is newsworthiness in the fact that he was the President of United States when he had these views, as distinguished from someone else who might just have been narrating about them.

Edward A. Miller:

–Your Honor, I don’t think that that fact should affect copyrightability.

I think it might affect Fair Use, but after the book is published.

I think our position is that before the book is published, President Ford ought to have the same right that any author has, the right of first publication.

President Ford took two years to write this book.

This harvest of knowledge that was so important to the majority in which we concur, that harvest of knowledge came about because President Ford spent two years writing the book.

We submit that having put that effort, he’s entitled to the right that the copyright laws have given him, namely, the right of first publication.

I would like to also just go back to the copyrightability point.

Edward A. Miller:

The majority, in addition to the two other factors that I mentioned, also gave no consideration to the paraphrasing here, stating that paraphrasing is the equivalent of copying only if the copier has copied virtually the entire work.

We submit that the cases don’t support that interpretation of a copyright.

In essence, the majority imposed these… applied these limited restrictions on copyrightability because of its belief that to do otherwise would give President Ford a monopoly over facts.

We submit that that is not true.

It would only give President Ford protection for his expression of those facts.

Furthermore, that protection is not unlimited.

It is protection that is subject to the requirements of the Fair Use doctrine.

On the Fair Use doctrine–

Byron R. White:

Do I understand you to say that if President Ford, in his memoirs, revealed that an event that no one had ever known about before and he described that event, do you say that no one could reveal that event without violating his copyright?

Edward A. Miller:

–They could certainly reveal the information, but they couldn’t take his expression.

Byron R. White:

Yes.

It is just a question of when in the process of revealing the event, they are close enough to his expression to get in trouble?

Edward A. Miller:

That’s correct.

That’s correct, Justice White, and we submit that the majority, in making that determination, applied a number of standards that–

Byron R. White:

Such as it has to be a literal quote, or something.

Edward A. Miller:

–It has to be a literal quote, and such as–

Byron R. White:

You say, it can also violate if it is just a paraphrase.

Edward A. Miller:

–That’s correct.

Byron R. White:

How do you recognize a paraphrase when you meet it on the street?

Edward A. Miller:

Justice White, I think it is a question of looking at the material and exercising judgment.

Byron R. White:

As to whether it is practically the same thing as the quote?

Edward A. Miller:

What I think the District Court did in this case was the District Court took the Ford material and compared it in its totality with what The Nation did, and said, overall this is substantially similar and, therefore, infringement.

Byron R. White:

Substantially similar, that is your test?

Edward A. Miller:

That is the test of infringement, yes, and I think that’s the test that has to be applied when you are dealing with paraphrase.

William H. Rehnquist:

Paraphrase then includes the idea that even though there is not literal quotation, there is so much similarity in arrangement, the sentence structure, and that sort of thing?

Edward A. Miller:

That’s correct.

That’s correct, Justice Rehnquist.

On the Fair Use branch of the case, we urge that the fundamental flaw of the court, or a fundamental flaw of the court was in its belief that in some way a decision was required in order to facilitate the harvest of knowledge so essential to a democratic state.

John Paul Stevens:

Mr. Miller, could I interrupt once more.

I’m sorry, but I just want to be sure.

John Paul Stevens:

Is there anything that tells us which 300 words the Court of Appeals and your opponent agree are copyrightable, and which words you agree are not copyrightable?

Do we have anything that really tells us?

Edward A. Miller:

I think in The Nation sentence by sentence analysis, they have a chart, which is in the Joint Appendix, and they have a little red line underneath the stuff that they say or concede is possibly expression, or they are arguable expressions, or something like that.

I think that that is probably where the 300 words comes from.

It is probably the count of the material that The Nation conceded was expression.

John Paul Stevens:

Conversely, everything in yellow you contend is copyrightable.

Edward A. Miller:

Really, everything in yellow is what we contend was copyrightable.

Byron R. White:

Is that the total question, that it is copyrightable?

I thought there might have been an awful lot of things in the memoirs that were copyrightable, but the claim is there that there was no violation because it was a paraphrase.

Isn’t part of the holding below that there wasn’t a violation of the copyright because it was only a paraphrase?

Edward A. Miller:

That was part of the holding below, and our contention is that the majority shouldn’t have dismissed paraphrasing so lightly because it can indeed–

Byron R. White:

Do you say that… The court below said 300, and you say 700?

Edward A. Miller:

–No.

I think that everything that is yellowed in our Appendix C to the cert petition, which comes to about 1800 words, was in fact copied from the–

Byron R. White:

You are just saying, because it was a violation of copyrightable material?

Edward A. Miller:

–Yes, that is correct.

Byron R. White:

Eighteen hundred words.

Edward A. Miller:

Yes.

William H. Rehnquist:

When you say 1800 words were copied, do you say that every one of those 1800 words was copyrightable?

Edward A. Miller:

Yes.

Byron R. White:

It is just as though President Ford used those words.

Edward A. Miller:

Yes, that’s correct.

As I said, the court below acted on the premise or the underlying philosophy that the decision was necessary in order to facilitate the harvest of knowledge so necessary to a democratic state.

But the material was about to be harvested by President Ford himself, and nothing that The Nation did in any way facilitated that.

What The Nation did was to arrogate to itself author’s right of first publication.

Author Ford had spent two years writing this book, and The Nation took it upon itself to be the first publisher or, to use The Nation’s words,

“to scoop the President on his own memoirs. “

As I think I have already suggested, the majority believed that this policy of facilitating the harvest of knowledge was somehow at odds with the Copyright Act.

We submit that it is not.

The Copyright Act indeed has that very same purpose, to reward authors so that authors will go cut and spend the time and effort necessary to write their books so that the public will have the benefit of that.

William H. Rehnquist:

So that they’ll get some royalties.

Edward A. Miller:

And so that they’ll get some royalties, too.

But the Copyright Act provides an economic incentive, and the real underlying purpose of that is the purpose that the public will get the benefit of their writings.

I would like to just talk briefly about the legislative history of the Copyright Act because that makes clear that the fact that work is unpublished means that the Fair Use doctrine has narrow applicability.

The court disregarded that completely.

That statement that the author’s right of first publication ought to prevail appears in committee reports, the 1966 and ’67 House report.

It appears in the ’76… the ’75 Senate report.

It didn’t appear in the final House report only for one reason, and that is that the parties had gotten together and agreed on specific guidelines.

But the House went out of its way to refer to its earlier discussion, and to say, we still think that that earlier discussion has validity, and it still has value for an analysis of the various aspects of the problem.

Mr. Chief Justice, if I have some time left, I would like to reserve it for rebuttal.

Warren E. Burger:

Very well.

Mr. Abrams.

Floyd Abrams:

Mr. Chief Justice, and may it please the Court.

The copyright law protects works of authorship, and President Ford wrote a book which was properly copyrighted.

We have never disputed the fact that the book was copyrightable in its totality, and copyrighted.

The copyright law also, as Mr. Miller said, does not protect facts, and it doesn’t protect certain other things as to which we seem not to be in disagreement, for example, government works.

It does not protect other information of one sort or another.

William H. Rehnquist:

It does protect, doesn’t it, Mr. Abrams, a particular method of describing a fact.

Floyd Abrams:

It protects expression, Justice Renquist, which indeed is very often a way of describing a fact.

It doesn’t protect ideas.

It doesn’t protect facts.

It does protect, as the Second Circuit said, the structure and mosaic of a work, but it doesn’t protect expression.

The Second Circuit went through a process of looking to see what part of what was before it was the sort of thing as to which President Ford could bring a law suit on against The Nation.

Let me give you, if I may, first the numbers, which some members of the court have asked for, in terms of quotations and the like.

We deal here with a manuscript of 655 pages written by President Ford, approximately 200,000 words.

We deal with an article by The Nation of three pages of a total of 2250 words.

Harry A. Blackmun:

So the real comparison is between 300 words.

Floyd Abrams:

That is the starting cut, I think.

There are cases in other areas in which a small amount of words has been held to violate the copyright law.

There are other cases, Betamax, in which 100 percent does not violate.

Floyd Abrams:

It does depend upon the case, but we are starting out, I think, fairly, talking about, if we are right, and if the Second Circuit is right in saying that it is 300 words, in comparing the 300 words to the book or, if you will, to the chapters, which relate to the–

William H. Rehnquist:

How about to the Time excerpt?

Floyd Abrams:

–The Time excerpt wasn’t in existence, and never got written, Your Honor.

Mr. Navasky didn’t have that or knowledge of it, so I can’t compare it to that.

William H. Rehnquist:

So he never saw that.

Floyd Abrams:

Yes, sir, he never saw it, and so far as I know it never came into existence at all.

Sandra Day O’Connor:

Do the 300 words represent just the direct quotes?

Floyd Abrams:

The 300 words represent direct quotes.

Sandra Day O’Connor:

Do you not concede that paraphrasing other words could constitute a copyright violation?

Floyd Abrams:

I do concede that, Justice O’Connor.

It seems to me, and indeed the law says, that if you track something slavishly enough, it can indeed constitute a copyright violation, and there are lots of cases in which parties have just about literally tracked what someone else wrote, and put in a little word here and there, the Wainwright case in the Second Circuit.

Sandra Day O’Connor:

And perhaps this case.

Floyd Abrams:

I hope not, Your Honor.

0 [Generallaughter.]

The Wainwright case in the Second Circuit seems to me an example of what is not involved here.

The Wainwright case is a case in which a financial publisher went out and collected all the recommendations to prospective buyers by Kitty Peabody sayings and in the news article, so called, was Kitty Peabody said today this, they said that, they said that, and they said that.

It was the totality of what they were saying.

It was a practice of what they were doing again and again in article after article.

I think that there is a word or two words to describe what The Nation was engaged in today, it is news reporting.

One may like it or not, but it is the sort of thing which for Fair Use purposes, which I haven’t reached yet Congress defined as a paradigmatic example of what is protected.

Sandra Day O’Connor:

Why are direct quotes or direct paraphrasing of an author’s expression essential to news reporting?

Why can’t they be rewritten?

Floyd Abrams:

It can be rewritten less well, less probingly, less meaningfully.

There was expert testimony on that very subject.

All the testimony was, both in the amount that was used, and in the nature of the quotations that were used, I mean literally all of it thought that it was reasonable in journalistic terms, and that it was reasonable from the point of view of authors.

Mr. Halberstam, for example, testifying, as all the experts did, uncontradicted, gave examples of that.

Sandra Day O’Connor:

Didn’t Mr. Navasky himself testify that the words quoted had a definitive quality and were a more powerful statement than he himself could have written.

Isn’t that the very essence of what is protected?

Floyd Abrams:

Justice O’Connor, those words are protected, and we agree with that.

That is where we get to 300 words, that at least is a common ground as regards sore of the words.

Floyd Abrams:

How Mr. Nixon looked in the hospital, for example, that is pure expression.

We don’t have any disagreement with that.

What President Ford learned or says that he learned at Yale Law School is expression, and we don’t have any quarrel with that.

That is how we get to 300 words.

Where we disagree… where we disagree on numbers or where the Second Circuit is not the same as what my brother here has said to you today is how to do the counting, how to do the analysis of that.

Byron R. White:

But you also say that that 300 can be published under the rubric of Fair Use.

Floyd Abrams:

Yes, sir.

As a matter of Fair Use, we argue that the 300 words, as a matter of law–

Byron R. White:

Even if it is the essence of the article.

Floyd Abrams:

–It is not the essence of the article.

The essence of the article, as all agree, is the story of the pardon by one president of his predecessor president, who in fact appointed him.

Lewis F. Powell, Jr.:

Mr. Abrams, did the editor of The Nation know that Time Magazine was going to publish an article on the book?

Floyd Abrams:

By the time the article was published in The Nation, he was aware that Time Magazine was going to publish something.

He didn’t know what, and he wasn’t aware of that at the time that he received the manuscript.

Lewis F. Powell, Jr.:

He was trying to scoop the publication by Time in the vernacular of the news business?

Floyd Abrams:

In a sense, Mr. Navasky testified that he wanted to be first, yes, sir, and he testified that he wanted to be first because he wanted to put his own perspective on it.

Lewis F. Powell, Jr.:

Did Mr. Navasky contribute anything to the article itself, beyond what he obtained from the Ford manuscript?

Floyd Abrams:

Yes, Your Honor.

Lewis F. Powell, Jr.:

Besides condensation.

Floyd Abrams:

Two things.

One is summarized.

If news reporting is presumptively protected.

Lewis F. Powell, Jr.:

Were any of his ideas incorporated into that?

Floyd Abrams:

In one way they were, Your Honor.

Mr. Navasky testified that by his selection and choice of the material with respect to the pardon, he thought that a reader would come out, when you strip of expression, as Mr. Navasky did, when you strip what President Ford was saying of how he felt, which Mr. Navasky generally did, that you come out with a view of the pardon which involved at least a strong sense that it may have been the result of improper behavior.

Lewis F. Powell, Jr.:

You characterize this as objective reporting or editorializing?

Floyd Abrams:

I have to say, Justice Powell, I think it’s some of both.

It is a summary on the one hand, and it is a summary to make a point on the other.

What I would certainly characterize it as is news reporting.

One of the areas that the District Court erred in was in passing a sort of judgment on it.

Floyd Abrams:

He said that it was “poor” journalism.

One of the things that we have urged on you in our briefs is that, be that as it may, whatever Mr. Navasky might think or, if I may, what any of us might think here, that’s not the business of courts.

William H. Rehnquist:

Why did you have all the expert witnesses, then, in the District Court testifying that something was journalistically proper if courts can’t review that?

Floyd Abrams:

What we called them for was to deal with various aspects of Fair Use.

Courts can deal with the Fair Use factors, and anything that is relevant to Fair Use.

William H. Rehnquist:

I thought you said they testified that something was done well from a journalistic standpoint.

Floyd Abrams:

They testified to the amount that was taken, for example, Part III of Fair Use, they didn’t take any more than was necessary.

It was honorable and reasonable.

That, we thought, was a matter for expert opinion.

I went perhaps farther than I had to in having experts testify that the information wasn’t only news, but was newsworthy.

Maybe we didn’t have to do that.

But we were not making the case, and we made it very clear to the court again and again, that our view at least was that the standard to he applied was not whether it was a great news story, but whether it was really a news story.

What the Second Circuit said was, the question is when a party comes before a court, and is arguing Fair Use and saying this is “news reporting”, the question is, is that true or not?

Is it a pretext or not to say that.

In Wainwright, the Second Circuit said that it was a pretext.

You can’t just say that it’s news reporting and make it news reporting.

It matters because news reporting is set forth by Congress, at least, as an example of what is presumptively protected as Fair Use.

It doesn’t answer all the questions, but it’s a start once one gets to Fair Use analysis.

Byron R. White:

I hope you have a good litmus paper test to identify news as compared to what is newsworthy.

Floyd Abrams:

We got into, Justice White, arguments about whether something has to be news.

Byron R. White:

You suggest that there is a lot of news that’s not newsworthy.

Floyd Abrams:

I suggest that news doesn’t have to be new, and that was one of the areas we drifted off on to at trial.

Warren E. Burger:

Did you say that this was also commercial valuable material that was taken?

Floyd Abrams:

As any book is, Your Honor, sure.

I don’t have any doubt that Harper & Row wanted to sell what it had, and that it did so.

Warren E. Burger:

The question is commercially valuable to The Nation?

Floyd Abrams:

I don’t know if anything is really commercially valuable to The Nation, Your Honor.

0 [Generallaughter.]

Warren E. Burger:

I am talking to the party to this action, and not the country with a small “n”.

Floyd Abrams:

I am sorry, I meant the magazine.

Floyd Abrams:

All I meant was the magazine.

I suppose in a sense, at least I would have to concede, there’s nothing in the record, that Mr. Navasky may have hoped long range it would be a good thing for the magazine, and that eventually they would sell more copies.

They sold 418 copies of this altogether on newsstands, so it’s not the sort of thing one would ordinarily think of in terms of magazines or newspapers.

If I might, Your Honor, though, I’d like to continue a proposal your question with the question of what is copyrightable and what’s not, because essentially what the Second Circuit did was to say, we look at this in two ways.

First, we see what is it that we’re supposed to count, so to speak.

The whole work is copyrighted.

I say again, there is no question about that, President Ford wrote a copyrightable work.

But it’s clear, and we don’t disagree with our opponents, that we are entitled as a general matter to make what Professor Latman called “unlimited use” of material in that copyrighted work which is not copyrighted subject to however this court comes out on the issue of structure, mosaic, or whatever.

Justice Stevens asked earlier for some examples and, if I may, I would like to just cite one or two to give you an example of where we think the court can look to make a decision as to whether the Second Circuit approach was a correct approach.

At page 633 of the Joint Appendix, in the midst of our paragraph by paragraph analysis of the article, we quote from the article in paragraph 4… of The Nation article.

Paragraph 4 of The Nation article says, and I will just paraphrase it now, that Ford’s account contained significant new details on the negotiations and consideration when the subject was first broached to him by General Haig on August 1st, 1974.

General Haig revealed that the newly transcribed White House tapes were the equivalent of the smoking gun, et cetera.

That came from what we then annex immediately after page 633, which is pages 634, 635, 636, and 637.

It was, I would use the word, news, if you went to say condensed, paraphrased, it was a report about that aspect of what President Ford did.

The same thing is true of the example that Mr. Miller cited.

I think it is a good example of the Ruth Memorandum.

At page 654 of the Joint Appendix, there is a paragraph from The Nation article in which The Nation wrote that the precipitating factor in Ford’s decision was a series of secret meetings.

Then they go down to say that Ford’s cites a memorandum from Henry Ruth as being especially persuasive.

“Ruth had written”.

Where we disagree is this.

President Ford never owned the Ruth Memorandum, and we believe that he doesn’t own it today.

What the District Court said was that when you put the Ruth Memorandum together with how President Ford used it, the totality was protected, and that is why we get to 700 words, because they include the Ruth Memorandum in the 700 words.

Our position is that the totality doctrine is absolutely unprecedented in copyright law, and terribly dangerous because that doctrine would, in fact, give Harper & Row a monopoly of the story of the pardon of President Nixon by President Ford.

I want to add one thing to it.

They’re right when they say that the monopoly they would get is the monopoly in President Ford’s version of that story.

That’s true.

Mr. Navasky could have gone out and written a whole article about the pardon, but his article was about President Ford’s version of the pardon.

What I believe their argument comes down to is that that sort of article cannot be written about at least published work without violating the copyright law.

That’s what it is, because if you once say, you can’t paraphrase, what you are saying is, you can’t report what the books says about that, what happened next.

There were events that happened one after another.

Floyd Abrams:

If you say that the Ruth memorandum gets scores of–

William H. Rehnquist:

Mr. Abrams.

Floyd Abrams:

–Yes, Your Honor.

William H. Rehnquist:

I didn’t understand your opponent to go that far in his concept of paraphrasing, that simply a relating of the same of the factual account would would automatically be described as paraphrasing.

Floyd Abrams:

I don’t understand him to go that far in paraphrasing, Your Honor.

I understand that when you put together… It is my view, at least, that when you put together their argument about paraphrasing with the lower court’s ruling about the totality of the work, when you put all that together, what you are seeing is, for example, an entirety of the depiction of the pardon.

There are 19 paragraphs in The Nation article, all of that, they say, what, comes from, it is about President Ford’s version of the pardon.

It is one thing to say, we can’t do that at all, but as Mr. Miller said in response to a question that he was asked by Mr. Justice White, it is not based on the amount of words that he is talking about.

His position and the lower court’s position was that when you looked at it all together, this was President Ford’s version, this was his depiction of the pardon.

Our position is that this was an article about President Ford’s depiction of the pardon.

I agree that if this depiction had gotten so close at such length so that like Wainwright this was just a fraud, we would have a different case.

William H. Rehnquist:

When you say, 30 chapters–

Floyd Abrams:

No, sir, that is exactly what I am conceding my client was not allowed to do, was to take a chapter out of the book and change a few words.

William H. Rehnquist:

–Or 300 words out of the book if he is simply–

Floyd Abrams:

When you start to get down, Justice Renquist, to 300 words, then I think you have to apply standard Fair Use analysis.

William H. Rehnquist:

–Okay.

You say, a chapter, let’s say, a chapter of ten pages, 300 words to a page, 3,000 words.

There you say that Harper & Row is protected.

You say if you get down to one page, you have to apply the Fair Use analysis.

Is there any line in-between there?

Floyd Abrams:

I should have said, I misspoke a moment ago, you have to use Fair Use analysis no matter what you get down to.

All I am saying is that first you have to see what it is that you are looking at, what is the fair document, what is the fair amount of words, or whatever, that you are looking at, then you apply fair use analysis.

Is there a line that you use?

I think you start with what Congress said.

Congress gave four factors to look at, they are not exclusive.

Sandra Day O’Connor:

The first publication right is not a factor for consideration in Fair Use?

Floyd Abrams:

I think pre-publication, Justice O’Connor, can be a factor in a particular type of case.

For example, if this were a case–

Sandra Day O’Connor:

What about this case?

Floyd Abrams:

–This case, no.

Floyd Abrams:

We don’t think the factor that it is pre-publication is a factor in this case.

We read the legislative history differently than our friends, but not just that.

We look at a statute which, when it wants to, distinguishes between published and unpublished works, and that is what the copyright law does in Section 104 and 108, 302 and 412.

Congress said in a number of situation, we are going to treat published and unpublished works in a different way, but that is not that they did here.

We look at a statute which says, news reporting is a paradigmatic example of Fair Use.

We think, and the Second Circuit on this was unanimous, that what was involved here was news reporting.

Sandra Day O’Connor:

Do you think the right of first publication is a right encompassed under Section 106 of the law?

Floyd Abrams:

Yes.

I have no doubt at all that the right of first publication is a right subject to Fair Use.

Everything is subject to Fair Use, that is what 106 says, that is is subject to 107.

So when one applies Fair Use, it seems to me one looks at what Congress said.

You look at the nature of the use, and our answer, and the Second Circuit’s answer was news reporting.

If you look at the nature of the underlying work, it is heavily factual, the certainly heavily factual nature of the work in terms of what Mr. Navasky was looking at and using.

No personal stories, no vignettes, no stuff which you can take from a book like that.

You look at the question of how much did he take for the use, and we have undisputed–

Sandra Day O’Connor:

Do you look at the negative effect on the potential market and value?

Floyd Abrams:

–Yes, that is the fourth factor, and you certainly look at that.

Sandra Day O’Connor:

Wouldn’t that be a factor here to worry about?

Floyd Abrams:

It is a factor here but only if the negative effect was caused by taking copyrightable material.

If you once say that we are right, that they are allowed to write a summary, a news article, or whatever, about the pardon, then if Time cancelled because the news was lost, that’s not something that is compensable at law.

If Time cancelled because of the expression that is something which would be compensable, at least that would be a factor against us.

What the Second Circuit said looking at this, looking at what it got it down to after it looked at what was copyrightable in terms of what was involved here, we had a situation, the Second Circuit said, in which it can’t be the case.

What Time cancelled about was the description of President Ford’s Yale Law School.

Everyone agreed that what the article was about was about the pardon, and that the main thrust of the article that Time wanted was material about the pardon.

So on that factor as well, we don’t lose.

In any event, we think we win, as the Second Circuit said, on the first three factors.

Lewis F. Powell, Jr.:

Would you repeat what you have said about the first factor, whether or not publication was for commercial purposes rather than for non-profit, educational purposes.

This was certainly commercial, wasn’t it?

Floyd Abrams:

This is commercial as opposed to educational, Your Honor.

Lewis F. Powell, Jr.:

Is it not commercial in every sense in that you knew that the material would be published by Time in a matter of a couple of weeks?

Floyd Abrams:

I think the commercial relates to my client and not Time.

But I would concede in any event, Justice Powell, that if the first factor requires a simple choice between whether it is commercial or educational, as the language is–

Lewis F. Powell, Jr.:

You flunk that test.

Floyd Abrams:

–We don’t flunk it, Your Honor, because we view it as a sort of a sliding scale necessarily.

How can news reporting be stated by Congress to be a paradigmatic example of Fair Use in a case where the publisher would fail stage one.

Thurgood Marshall:

Yours is educational for profit.

Floyd Abrams:

It is hopefully for profits, Justice Marshall, but it’s news reporting.

That is why I pause a little, Justice Powell, before saying that it is simply commercial.

It is not like running it for an advertisement, for example.

It seems to me that when Congress comes right out and says that news reporting is presumptively protected, we have to give some meaning to that, and the meaning, we can’t, it seems to me, say that notwithstanding that news reporting is listed in so many words by Congress in Section 107 as an example of Fair Use, that every example of news reporting in every newspaper here today fails stage one if they sell it for a profit.

That is why I think the only sensible reading, if I may, of Section 1 is to say that what Congress did was to give two examples.

On one side of the scale, it is pure commercial, and on the other side it is pure educational.

Lewis F. Powell, Jr.:

But you do start with copyrighted material, don’t you, which is a little different from most news reporting.

Floyd Abrams:

It really isn’t, Your Honor.

Lewis F. Powell, Jr.:

This was copyrighted, wasn’t it?

Floyd Abrams:

I’m sorry.

Lewis F. Powell, Jr.:

Was the book copyrighted?

Floyd Abrams:

The book was copyrighted.

What is not unusual is for… President Ford uses the doctrine of Fair Use.

His book is filled with quotations of what other people have said, and it is only protected because of the Fair Use doctrine.

If Mr. Ruth, for example, owned his memo… he doesn’t because it is a U.S. memo, the same with President Ford, he is not the owner of the memo… it would only be Fair Use to allow President Ford to quote it, even though it may have been copyrighted.

William H. Rehnquist:

Yes, but the kind of Fair Use example you give of President Ford is in the context of a work which bears the imprint… the individual imprint of an author.

Here this Nation thing didn’t really add anything original to what is found in the Ford Memoirs.

Floyd Abrams:

Your Honor, if we are right for the moment, if I am persuasive for the moment with respect to the pre-publication and post-publication issue, if one just puts that to the side for the moment, it is inconceivable to me that anyone would say that this article, this very article, published after publication of the Ford Memoirs, violates the copyright law.

It is inconceivable because of the amount quoted, because of all the factors which we ordinarily take account of in Fair Use.

I understand, it is more than a relevant, it is a very central question to this case when one talks about pre-publication and post-publication, but in terms of whether it is that unusual to have long quotations or to have an article like this.

Book reviews are filled with much more in quotation than this.

William H. Rehnquist:

Yes, but most book reviews contain the reviewer’s appraisal of the work as a piece of literature.

Floyd Abrams:

News articles on books just published frequently do not, new articles about books about politics in particular.

A book like this is a political event.

Floyd Abrams:

It is a president reflecting and stating what happened during his presidency.

It is news in and of itself, and we have testimony on that.

These things are not in dispute on this record at least.

Everyone has testified as to that.

There was no cross-examination.

There were no counter-witnesses as to that.

It does happen, and it happens with some frequency that that a news article will be written about a book.

The question, to be sure, the question is, supposed it happened before publication, what difference does that make?

We cite our legislative history, and we cite more than legislative history.

We cite the statute to you which doesn’t say what Mr. Miller wants it to have said, but it doesn’t say it.

We cite cases to you which say, in common law, that it didn’t make any difference.

The Hemingway case, for example.

We cite Professor Nimmer’s book to you which says, the leading authority on copyright, that at common law the fact was that pre-publication, Fair Use applied… not that it did rot apply, that it did apply in common law.

We cite more recent cases, the Am-Law case in the Second Circuit just a few weeks ago, which rather routinely, Judge Winter went ahead with an unpublished work and applied the standard, and all the factors under Fair Use.

If we are wrong about published and unpublished work, if that’s dispositive as Mr. Miller argues, we have a lot of troubles in this case, but if we are right about that–

Sandra Day O’Connor:

I understood your opponent to concede that Fair Use was a proper question for inquiry here, but he takes the view that whether it is a first publication is a factor to be considered under Fair Use.

You say, it’s not.

Floyd Abrams:

–I think he goes farther.

Sandra Day O’Connor:

Is that the essence of the difference?

Floyd Abrams:

I don’t think so, Justice O’Connor.

His position in his brief is that Fair Use is precluded absent extraordinary circumstances in a pre-publication situation, and that is not our view at all.

If it were that, for example, under Section 101 of the copyright law, every time a program was or television, or a play is performed, you would have to have extraordinary circumstances to have a review of it because under the copyright law, that’s not a publication.

So that’s what we are saying here.

We think what the Second Circuit did as a matter of analysis was right in first saying, what is copyrightable, what are we talking about here, and then saying, 300 words, in the circumstances of this factual book, is Fair Use.

Byron R. White:

Mr. Abrams, you got us up to 700 words with that memorandum.

Your opponent says that he is really talking about 1800 words.

Are the 700 included in the 1800 words, or is the 1800 in addition to that?

Floyd Abrams:

No.

Of the entirety of the Nation article of 2250 words–

Byron R. White:

Yes.

Floyd Abrams:

–the amount quoted is about 700 words–

Byron R. White:

Yes.

Floyd Abrams:

–Our opponents say that an additional 1100 words were paraphrased.

Byron R. White:

I got you.

Floyd Abrams:

There is no argument about 400 words… about the other 700 words.

Byron R. White:

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Miller.

Edward A. Miller:

I have no rebuttal.

Sandra Day O’Connor:

Mr. Miller, may I ask one question, please.

If the article were published in The Nation after the publication of President Ford’s book, would that be a copyright violation?

Edward A. Miller:

Justice O’Connor, if that happened, there would be one significant change in one of the Fair Use factors, and a possible change in the other.

Sandra Day O’Connor:

Yes or no, a violation or not?

Edward A. Miller:

It could be, but I can’t answer yes or no because it would depend upon the economic impact of the use.

A significant factor that would change is that it would be a published manuscript.

If he did this after the book came out, I don’t know whether it would have caused economic harm, and I think that would be a significant factor.

By doing it before the book came out, he caused us to lose the benefit of the first serial license deal that we made.

It is possible that if he came out with his article after the book came out that it wouldn’t receive very much attention because, after all, he didn’t add anything to what President Ford said in the article.

Thank you.

Warren E. Burger:

Thank you.

Gentlemen, the case is submitted.

The Honorable Court is now adjourned until tomorrow at 10:00.