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

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 Before Time released its article, an unauthorized source provided The Nation Magazine with the unpublished Ford manuscript.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


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of 1976's fair use doctrine sanction The Nation's unauthorized use of quotations from former President Gerald Ford's unpublished manuscript?

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

Audio Transcription for Oral Argument - November 06, 1984 in Harper & Row, Publishers, Inc. v. Nation Enterprises

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:


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in the Fair Use case, does the policy of facilitating the harvest of knowledge call for a sanction for the use of an unpublished manuscript that the author himself is about to publish?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