Harper & Row Publishers, Inc. v. Nation Enterprises

Harper & Row Publishers, Inc. (Harper & Row) (plaintiff) drafted a manuscript autobiography of President Gerald Ford. Before Harper & Row published the manuscript, it sold exclusive rights to publish excerpts from the manuscript to Time Magazine (Time). Time planned to publish the excerpts approximately one week before the full manuscript was to be published. Harper & Row went to great lengths to keep the manuscript confidential and Time agreed to maintain that confidentiality until it published its article. However, a source leaked the unpublished manuscript to The Nation Magazine (The Nation) (defendant), which used the manuscript to draft and quickly publish an article entitled “The Ford Memoirs—Behind the Nixon Pardon.” The Nation’s article paraphrased the manuscript and also quoted directly from the important portions of it. The quoted portions amounted to approximately 13% of the manuscript. The Nation’s article did not include any commentary or critique of the manuscript. The Nation published the article right before Time planned to publish its article. Upon seeing The Nation’s article, Time cancelled its agreement with Harper & Row and refused to pay. The district court ruled that The Nation’s article infringed on Harper & Row’s copyright. The United States Court of Appeals for the Second Circuit reversed, finding that The Nation’s article was fair use, in part because it found that the fair use defense is expanded when the subject matter is of high public concern. The United States Supreme Court granted certiorari.