Harper Row V Nation Enterprises On Fair Use And Unpublished Works.
1. Background: Harper & Row v. Nation Enterprises
Facts:
Harper & Row had the copyright to President Gerald Ford’s unpublished memoirs, A Time to Heal.
The Nation magazine obtained a draft excerpt and published a 300-word summary of Ford’s account of pardoning Nixon.
Harper & Row sued The Nation for copyright infringement.
Key Legal Issues:
Can using excerpts from an unpublished work constitute fair use?
How do courts weigh the four fair use factors for unpublished materials?
Law Applied:
17 U.S.C. § 107: Codifies the four-factor fair use test:
Purpose and character of the use (commercial, transformative, etc.)
Nature of the copyrighted work (published/unpublished, factual/creative)
Amount and substantiality of the portion used
Effect on the potential market or value
2. Supreme Court Holding (Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985))
Holding:
The Supreme Court ruled against The Nation.
Key points:
Unpublished works are entitled to greater protection; the right to control first publication is a core part of copyright.
Commercial use and lack of transformation weighed against fair use.
Even a small portion (300 words) can be infringing if it is the “heart” of the work.
Publication of these excerpts usurped the market for the original book.
Significance:
Established that unpublished works have stronger protection under fair use.
Courts must weigh market impact, even for small but essential portions.
Confirmed that fair use is not automatic for news reporting, especially with unpublished works.
3. Related Case Laws on Fair Use and Unpublished Works
A. Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987)
Facts:
Biographers used letters written by J.D. Salinger to create a biography. Letters were unpublished.
Holding:
Court emphasized strong protection for unpublished works.
Fair use does not justify copying extensive, unpublished material, even for research or biography.
Significance:
Reinforced Harper & Row’s principle: unpublished status is a weighty factor in fair use analysis.
B. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)
Facts:
2 Live Crew parodied Roy Orbison’s Oh, Pretty Woman.
Work was published, but Supreme Court considered commercial use and transformative purpose.
Holding:
Transformative use (parody) can weigh heavily in favor of fair use, even for commercial purposes.
Significance:
Contrasts with Harper & Row:
Campbell involved published works and transformative purposes.
Harper & Row involved unpublished works and non-transformative use.
C. New Era Publications Int’l v. Carol Publishing Group, 904 F.2d 152 (2d Cir. 1990)
Facts:
Biographers copied sections from unpublished materials by L. Ron Hubbard, founder of Scientology.
Holding:
Court sided with copyright holders: copying substantial portions of unpublished works was not fair use.
Confirmed greater protection for unpublished works, especially for biographical research.
Significance:
Reinforces Harper & Row in non-transformative, unpublished works context.
D. Bill Graham Archives v. Dorling Kindersley, Ltd., 448 F.3d 605 (2d Cir. 2006)
Facts:
Dorling Kindersley used images from concert posters (some unpublished) in a timeline book.
Holding:
Use was transformative, and commercial nature did not outweigh educational and documentary purpose.
But court carefully distinguished unpublished works: extent and context of copying matter.
Significance:
Shows that transformative use can sometimes overcome fair use concerns, but Harper & Row still applies to non-transformative, unpublished excerpts.
E. Cambridge University Press v. Patton (Georgia State University e-reserves case, 2012)
Facts:
University posted excerpts of textbooks for course reserves. Some excerpts were unpublished or recent.
Holding:
Courts considered the amount used, purpose (educational), and market effect.
Unpublished content received more protection, consistent with Harper & Row.
Significance:
Confirms the ongoing influence of Harper & Row in educational and scholarly contexts.
F. Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984)
Facts:
Video cassette recording for time-shifting TV shows. Work was published.
Holding:
Private, non-commercial, transformative use favored fair use.
Significance:
Illustrates that commercial and market-impact factors heavily influence fair use for unpublished works, contrasting Harper & Row.
4. Principles from These Cases
From Harper & Row and related cases, we can summarize:
Unpublished Works Get Stronger Protection: Courts prioritize the author’s right to control first publication.
Purpose and Character of Use Matters: Commercial, non-transformative use weighs against fair use.
Amount and Substantiality: Even small excerpts can infringe if they represent the “heart” of the work.
Market Effect is Crucial: If the use harms potential market value, fair use is less likely.
Transformative Use Can Help: Only if the work adds new meaning, commentary, or context (parody, commentary).
Fair Use is Context-Specific: Courts weigh all four factors holistically.
5. Key Takeaways
Harper & Row v. Nation Enterprises is the benchmark case on fair use of unpublished works.
Even small excerpts can constitute infringement if they are the core expressive content.
Courts consistently emphasize market impact and first publication rights.
Subsequent cases (Salinger, New Era, Bill Graham) reaffirm and refine these principles.
Transformative use or educational purposes can sometimes allow limited copying, but unpublished works remain heavily protected.
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