Harper & Row v. Nation Enterprises

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Harper & Row v. Nation Enterprises
Seal of the United States Supreme Court.svg
Argued November 6, 1984
Decided May 20, 1985
Full case name Harper & Row, Publishers, Incorporated, et al. v. Nation Enterprises, et al.
Citations 471 U.S. 539 (more)
105 S. Ct. 2218; 85 L. Ed. 2d 588; 1985 U.S. LEXIS 17; 53 U.S.L.W. 4562; 225 U.S.P.Q. (BNA) 1073; 11 Media L. Rep. 1969
Prior history Certiorari to the United States Court of Appeals for the Second Circuit
The Court determined that fair use is not a defense to the pre-publication, commercial appropriation of work by a famous political figure simply because of the public interest in learning of that political figure's account of an historic event.
Court membership
Case opinions
Majority O'Connor, joined by Burger, Blackmun, Powell, Rehnquist, Stevens
Dissent Brennan, joined by White, Marshall
Laws applied
U.S. Const.
Copyright Act of 1976

Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985),[1] was a United States Supreme Court decision which determined fair use is not a defense to the appropriation of work by a famous political figure because of the public interest in learning of that political figure's account of a historic event.


Former President Gerald Ford had written a memoir, A Time to Heal (memoir), including an account of his decision to pardon Richard Nixon. Ford had licensed his publication rights to Harper & Row, which had contracted for excerpts of the memoir to be printed in Time. Instead, The Nation magazine published 300 to 400 words of verbatim quotes from the 500-page book without the permission of Ford, Harper & Row, or Time magazine. Based on this prior publication, Time withdrew from the contract (as it was permitted to by a clause therein), and Harper & Row filed a lawsuit against The Nation for copyright infringement. The Nation asserted as a defense that Ford was a public figure, and his reasons for pardoning Nixon were of vital interest, and that appropriation in such circumstances should qualify as a fair use.

A Federal trial judge ruled in favor of Harper & Row and awarded damages. The Second Circuit Court of Appeals reversed the ruling, finding that The Nation's actions in quoting the memoirs were protected by fair use privilege. Harper & Row appealed this ruling to the Supreme Court.


The issue before the Court was whether a fair use existed where the purported infringer published a public figure’s unpublished work on an important public event.

Opinion of the Court[edit]

The Court, in an opinion by Justice O'Connor noted that the right of first publication is a particularly strong right, and held that there was no 'public figure' exception to copyright protection, asserting that "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." The court applied the traditional four factor test to determine if the use was fair, and made the following findings:

  1. The purpose or character of the use was commercial (to scoop a competitor), meaning that The Nation's use was not a good faith use of Fair Use in simply reporting news.
  2. The nature of the copyrighted work was informative.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole was great -- although the "amount" was small, it constituted a "substantial" portion of the infringer's work because the excerpt was the "heart of the work". The Court noted that the infringer could not defend plagiarism by pointing to how much else they could have plagiarized, but did not.
  4. The effect of the use on the potential market for the value of the copyrighted work was also great, because there was an actual harm – the cancelled contract.

Justice Brennan dissented, joined by Justices White and Marshall. They felt that the importance of "the robust debate of public issues" outweighed the limited power of copyright ownership.


The opinion was cited by the District court hearing the case of Salinger v. Random House, which concluded that the Supreme Court had "stressed the tailoring of fair use analysis to the particular case... It neither stated nor implied a categorical rule barring fair use of unpublished works."[1] On appeal in the same case, the United States Court of Appeals for the Second Circuit also cited the opinion. It noted that the Supreme Court ruling on Harper & Row v. Nation Enterprises (1985) had observed "the scope of fair use is narrower with respect to unpublished works." The circuit court noted that this is somewhat ambiguous, meaning either there are fewer cases in which fair use may be found or that less material may be copied, but decided the meaning was that unpublished works normally had complete protection against any copying of protected expression.[2]

See also[edit]


Further reading[edit]

  • Feingold, Robin (1986), "When "Fair Is Foul": A Narrow Reading of the Fair Use Doctrine in Harper & Row Publishers Inc. v. Nation Enterprises", Cornell Law Review 72: 218 .
  • Shipley, David E. (1986), "Conflicts between Copyright and the First Amendment after Harper & Row, Publishers v. Nation Enterprises", BYU Law Review 1986: 983–1042 .

External links[edit]

  • ^ 471 U.S. 539 (Text of the opinion on Findlaw.com)