Harper & Row Vs. Nation Ent.

Facts. Harper & Row Publishers, Inc. (Plaintiff) obtained the rights to publish President
Fords memoirs, A Time to Heal. Time magazine contracted for the rights to preview the
work immediately before publication. Before the publication of the article by Time
magazine, Nation Enterprises (Defendant), publisher of The Nation magazine, got a
copy of the Ford manuscript. The Nation published an article that quoted the
manuscript about the Nixon pardon. Time then choose not to use the article as planned
and canceled its contract with Harper (Plaintiff). Plaintiff sued Defendant for copyright
infringement. The district court awarded damages for infringement. The Second Circuit
reversed, holding Nation Enterprises (Defendant) use to be a fair use under 17
U.S.C.107. The United States Supreme Court granted certiorari.
Issue. Does publication of parts of a work soon to be published qualify as fair use?

Held. (OConnor, J.) No. Publication of parts of a work soon to be published does not
qualify as fair use. The idea behind the fair use doctrine as it was framed in the
common law was that one using a copyrighted work should not have to get a copyright
holders permission to use the copyrighted work in a case where a reasonable copyright
holder would in fact grant permission. As for reasonableness, it is not reasonable to
expect a copyright holder to let another person scoop it by publishing his material
ahead of time. Regarding the language of 107, the section lists four points to consider
in applying the doctrine. The two factors most relevant here are purpose of the use and
effect on the market. Usually, a fair use will not be one of economic competition with the
copyright holder, which is exactly what prior publication of a copyrighted work is. In
addition, the effect on the market of such a use is shown by what happened here: it
greatly decreases the market value of the copyrighted work. Therefore, the conclusion
in this case, and in almost all cases, is that prior publication of a work pending
publication will not be a fair use. Reversed.