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What's happened to fair use?

Folio: The Magazine for Magazine Management, Sept, 1985 by Slade Metcalf

Magazine publishers are asking their lawyers, "How are we affected by the Supreme Court's decision in The Nation case?" "Are we now prohibited from quoting from published books?" "Has investigative journalism suffered a mortal blow?"

Although the second and third questions can be answered with a simple "no," the first question requires an extended explanation--which in turn demands a working familiarity with the underlying facts of The Nation case.

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In February 1977, Harper & Row and Reader's Digest entered into a publishing agreement with former President Gerald R. Ford for his memoirs. (Harper & Row was to be the book publisher and Reader's Digest apparently acquired second serial rights.) Over the next two years, Mr. Ford, with the assistance of Trevor Ambrister, a senior editor at Reader's Digest, wrote a 200,000-word manuscript that totaled 655 pages. Harper & Row and Reader's Digest retained the exclusive licensing rights to the manuscript, which was to be called A Time To Heal. Harper & Row was protective of these rights and, by agreement, restricted Mr. Ford from disclosing the contents of the book prior to the publication date.

In March 1979, the publishers sold first serial rights in the book to Time for $25,000--$12,500 in advance and the balance at publication. Time could excerpt up to 7,500 words from the book, but reserved the right to renegotiate the price prior to the second payment if the material from the manuscript appeared in print prior to Time's on-sale date. The Time excerpt was to be on sale (April 16) about one week before the books would be shipped to bookstores.

About two to three weeks prior to Time's scheduled on-sale date, Victor Navasky, editor of The Nation, received an unsolicited copy of the unpublished manuscript. In the well-established tradition of competitive journalism, Navasky composed an article based exclusively on the contents of A Time To Heal, liberally quoting from the manuscript. The Nation published the 2,250-word article on April 3, 1979, which was 13 days prior to Time's publication date.

Time asked that Harper & Row permit it to print the excerpt in its issue on stands on April 9 rather than April 16, but Harper & Row refused. Time then invoked its rights under its agreement with Harper & Row, decided not to publish the excerpt, and declined to pay the remaining $12,500.

Filing suit

Harper & Row and Reader's Digest then sued The Nation for copyright infringement and other state law violations. The trial judge, hearing the case without a jury, ruled in favor of the copyright owners and awarded them $12,500 in damages as a result of The Nation's infringement of the publishers' copyright. The Nation appealed to the United States Court of Appeals, which, in a 2-1 decision, reversed the trial court and dismissed the complaint. The Supreme Court agreed to hear the case and on May 20, 1985, in a 6-3 ruling, reversed the Court of Appeals by finding that The Nation had indeed infringed the publishers' copyright.

The majority of the Supreme Court, speaking through Justice O'Connor, was aghast at the conduct of Navasky and The Nation in obtaining the manuscript and publishing the article. The majority ridiculed Navasky's conduct by implying that a "scoop" was a seamy aspect of the journalism profession; by noting that Navasky claimed in his deposition that the article was "a real hot news story" when, in fact, most of the information had been previously published; and by stating that The Nation "had knowingly exploited a purloined manuscript."

In reacting to the pejorative reference to the practice of "scooping," the dissenting opinion, written by Justice Brennan, commented: "A news business earns its reputation, and therefore its readership, through consistent prompt publication of news--and often through 'scooping' rivals .... Indeed the Court's reliance on this factor would seem to amount to little more than distaste for the standard journalistic practice of seeking to be the first to publish news."

Contrary to the majority's sense of indignation with The Nation's appropriation of the publisher's property, the dissent and the intermediate appellate court properly pointed out that The Nation did not possess the manuscript illegally nor did it participate in the "theft" of the manuscript. Navasky neither solicited nor paid for the delivery of the manuscript. He was not aware at the time he received the manuscript that Time had acquired first rights in it, although he subsequently learned of it prior to publication. He conceded that he was not authorized to see or have possession of the manuscript. That, by itself, however, was not a violation of any law.

Applying 'fair use'

With the Court's bias against this type of journalistic practice as a backdrop, the majority analyzed the Copyright Act and focused on the provision dealing with "fair use." The Copyright Act is premised on the concept that facts and information are not protectable or copyrightable--only the expression of those facts can be copyrighted. At the same time, republication of other persons' statements or of government documents is not copyrightable.

Media Industry

What's happened to fair use?

Folio: The Magazine for Magazine Management, Sept, 1985 by Slade Metcalf

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