U.S. Supreme Court Harper & Row v. Nation
Enterprises, 471
U.S. 539 (1985) Harper & Row, Publishers, Inc.
v. Nation Enterprises No. 83-1632 Argued November 6,
1984 Decided May 20, 1985 471
U.S. 539 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus In 1977, former President Ford contracted with petitioners to
publish his as yet unwritten memoirs. The agreement gave
petitioners the exclusive first serial right to license
prepublication excerpts. Two years later, as the memoirs were
nearing completion, petitioners, as the copyright holders,
negotiated a prepublication licensing agreement with Time Magazine
under which Time agreed to pay $25,000 ($12,500 in advance and the
balance at publication) in exchange for the right to excerpt 7,500
words from Mr. Ford's account of his pardon of former President
Nixon. Shortly before the Time article's scheduled release, an
unauthorized source provided The Nation Magazine with the
unpublished Ford manuscript. Working directly from this manuscript,
an editor of The Nation produced a 2,250-word article, at least 300
to 400 words of which consisted of verbatim quotes of copyrighted
expression taken from the manuscript. It was timed to "scoop" the
Time article. As a result of the publication of The Nation's
article, Time canceled its article and refused to pay the remaining
$12,500 to petitioners. Petitioners then brought suit in Federal
District Court against respondent publishers of The Nation,
alleging, inter alia, violations of the Copyright Act
(Act). The District Court held that the Ford memoirs were protected
by copyright at the time of The Nation publication, and that
respondents' use of the copyrighted material constituted an
infringement under the Act, and the court awarded actual damages of
$12,500. The Court of Appeals reversed, holding that The Nation's
publication of the 300 to 400 words it identified as copyrightable
expression was sanctioned as a "fair use" of the copyrighted
material under § 107 of the Act. Section 107 provides that,
notwithstanding the provisions of § 106 giving a copyright owner
the exclusive right to reproduce the copyrighted work and to
prepare derivative works based on the copyrighted work, the fair
use of a copyrighted work for purposes such as comment and news
reporting is not an infringement of copyright. Section 107 further
provides that, in determining whether the use was fair, the factors
to be considered shall include: (1) the purpose and character of
the use; (2) the nature of the copyrighted work; (3) the
substantiality of the portion used in relation to the Page 471 U. S. 540 copyrighted work as a whole; and (4) the effect on the potential
market for or value of the copyrighted work. Held: The Nation's article was not a "fair use"
sanctioned by § 107. Pp. 471 U. S.
542 -569.

															(a) In using generous verbatim excerpts of Mr. Ford's
unpublished expression to lend authenticity to its account of the
forthcoming memoirs, The Nation effectively arrogated to itself the
right of first publication, an important marketable subsidiary
right. Pp. 471 U. S.
545 -549.

															(b) Though the right of first publication, like other rights
enumerated in § 106, is expressly made subject to the fair use
provisions of 107, fair use analysis must always be tailored to the
individual case. The nature of the interest at stake is highly
relevant to whether a given use is fair. The unpublished nature of
a work is a key, though not necessarily determinative, factor
tending to negate a defense of fair use. And under ordinary
circumstances, the author's right to control the first public
appearance of his undisseminated expression will outweigh a claim
of fair use. Pp. 471 U. S.
549 -555.

															(c) In view of the First Amendment's protections embodied in the
Act's distinction between copyrightable expression and
uncopyrightable facts and ideas, and the latitude for scholarship
and comment traditionally afforded by fair use, there is no warrant
for expanding, as respondents contend should be done, the fair use
doctrine to what amounts to a public figure exception to copyright.
Whether verbatim copying from a public figure's manuscript in a
given case is or is not fair must be judged according to the
traditional equities of fair use. Pp. 471 U. S.
555 -560.

															(d) Taking into account the four factors enumerated in § 107 as
especially relevant in determining fair use leads to the conclusion
that the use in question here was not fair. (i) The fact that news
reporting was the general purpose of The Nation's use is simply one
factor. While The Nation had every right to be the first to publish
the information, it went beyond simply reporting uncopyrightable
information and actively sought to exploit the headline value of
its infringement, making a "news event" out of its unauthorized
first publication. The fact that the publication was commercial, as
opposed to nonprofit, is a separate factor tending to weigh against
a finding of fair use. Fair use presupposes good faith. The
Nation's unauthorized use of the undisseminated manuscript had not
merely the incidental effect, but the intended purpose, of
supplanting the copyright holders' commercially valuable right of
first publication. (ii) While there may be a greater need to
disseminate works of fact than works of fiction, The Nation's
taking of copyrighted expression exceeded that necessary to
disseminate the facts, and infringed the copyright holders'
interests in confidentiality and creative control over the first
public appearance of the work. (iii) Although the verbatim
quotes Page 471 U. S. 541 in question were an insubstantial portion of the Ford
manuscript, they qualitatively embodied Mr. Ford's distinctive
expression, and played a key role in the infringing article. (iv)
As to the effect of The Nation's article on the market for the
copyrighted work, Time's cancellation of its projected article and
its refusal to pay $12,500 were the direct effect of the infringing
publication. Once a copyright holder establishes a causal
connection between the infringement and loss of revenue, the burden
shifts to the infringer to show that the damage would have occurred
had there been no taking of copyrighted expression. Petitioners
established a prima facie case of actual damage that
respondents failed to rebut. More important, to negate a claim of
fair use, it need only be shown that, if the challenged use should
become widespread, it would adversely affect the potential market
for the copyrighted work. Here, The Nation's liberal use of
verbatim excerpts posed substantial potential for damage to the
marketability of first serialization rights in the copyrighted
work. Pp. 471 U. S.
560 -569.

															723 F.2d 195, reversed and remanded.

															O'CONNOR, J., delivered the opinion of the Court, in which
BURGER, C.J., and BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ.,
joined. BRENNAN, J., filed a dissenting opinion, in which WHITE and
MARSHALL, JJ., joined, post, p. 471 U. S.
579 .

															JUSTICE O'CONNOR delivered the opinion of the Court.

															This case requires us to consider to what extent the "fair use"
provision of the Copyright Revision Act of 1976 (hereinafter Page 471 U. S. 542 the Copyright Act), 17 U.S.C. § 107, sanctions the unauthorized
use of quotations from a public figure's unpublished manuscript. In
March, 1979, an undisclosed source provided The Nation Magazine
with the unpublished manuscript of "A Time to Heal: The
Autobiography of Gerald R. Ford." Working directly from the
purloined manuscript, an editor of The Nation produced a short
piece entitled "The Ford Memoirs -- Behind the Nixon Pardon." The
piece was timed to "scoop" an article scheduled shortly to appear
in Time Magazine. Time had agreed to purchase the exclusive right
to print prepublication excerpts from the copyright holders, Harper
& Row Publishers, Inc. (hereinafter Harper & Row), and
Reader's Digest Association, Inc. (hereinafter Reader's Digest). As
a result of The Nation article, Time canceled its agreement.
Petitioners brought a successful copyright action against The
Nation. On appeal, the Second Circuit reversed the lower court's
finding of infringement, holding that The Nation's act was
sanctioned as a "fair use" of the copyrighted material. We granted
certiorari, 467 U.S. 1214 (1984), and we now reverse. I In February, 1977, shortly after leaving the White House, former
President Gerald R. Ford contracted with petitioners Harper &
Row and Reader's Digest, to publish his as yet unwritten memoirs.
The memoirs were to contain "significant hitherto unpublished
material" concerning the Watergate crisis, Mr. Ford's pardon of
former President Nixon, and "Mr. Ford's reflections on this period
of history, and the morality and personalities involved." App. to
Pet. for Cert. C-14 - C-15. In addition to the right to publish the
Ford memoirs in book form, the agreement gave petitioners the
exclusive right to license prepublication excerpts, known in the
trade as "first serial rights." Two years later, as the memoirs
were nearing completion, petitioners negotiated a prepublication
licensing agreement with Time, a weekly news magazine. Time agreed
to pay $25,000, $12,500 in advance and an Page 471 U. S. 543 additional $12,500 at publication, in exchange for the right to
excerpt 7,500 words from Mr. Ford's account of the Nixon pardon.
The issue featuring the excerpts was timed to appear approximately
one week before shipment of the full-length book version to
bookstores. Exclusivity was an important consideration; Harper
& Row instituted procedures designed to maintain the
confidentiality of the manuscript, and Time retained the right to
renegotiate the second payment should the material appear in print
prior to its release of the excerpts.

															Two to three weeks before the Time article's scheduled release,
an unidentified person secretly brought a copy of the Ford
manuscript to Victor Navasky, editor of The Nation, a political
commentary magazine. Mr. Navasky knew that his possession of the
manuscript was not authorized, and that the manuscript must be
returned quickly to his "source" to avoid discovery. 557 F.
Supp. 1067 , 1069 (SDNY 1983). He hastily put together what he
believed was "a real hot news story" composed of quotes,
paraphrases, and facts drawn exclusively from the manuscript. Ibid. Mr. Navasky attempted no independent commentary,
research or criticism, in part because of the need for speed if he
was to "make news" by "publish[ing] in advance of publication of
the Ford book." App. 416-417. The 2,250-word article, reprinted in
the 471
U.S. 539 App|>Appendix to this opinion, appeared on April 3,
1979. As a result of The Nation's article, Time canceled its piece
and refused to pay the remaining $12,500.

															Petitioners brought suit in the District Court for the Southern
District of New York, alleging conversion, tortious interference
with contract, and violations of the Copyright Act. After a 6-day
bench trial, the District Judge found that "A Time to Heal" was
protected by copyright at the time of The Nation publication and
that respondents' use of the copyrighted material constituted an
infringement under the Copyright Act, §§ 106(1), (2), and (3),
protecting respectively the right to reproduce the work, the right
to license preparation of derivative works, and the right of first
distribution of Page 471 U. S. 544 the copyrighted work to the public. App. to Pet. for Cert. C-29
- C-30. The District Court rejected respondents' argument that The
Nation's piece was a "fair use" sanctioned by § 107 of the Act.
Though billed as "hot news," the article contained no new facts.
The magazine had "published its article for profit," taking "the
heart" of "a soon-to-be published" work. This unauthorized use
"caused the Time agreement to be aborted, and thus diminished the
value of the copyright." 557 F. Supp. at 1072. Although certain
elements of the Ford memoirs, such as historical facts and
memoranda, were not per se copyrightable, the District
Court held that it was

															"the totality of these facts and memoranda collected, together
with Ford's reflections, that made them of value to The Nation,
[and] this . . . totality . . . is protected by the copyright
laws." Id. at 1072-1073. The court awarded actual damages of
$12,500.

															A divided panel of the Court of Appeals for the Second Circuit
reversed. The majority recognized that Mr. Ford's verbatim
"reflections" were original "expression" protected by copyright.
But it held that the District Court had erred in assuming the
"coupling [of these reflections] with uncopyrightable fact
transformed that information into a copyrighted totality.'" 723
F.2d 195, 205 (1983). The majority noted that copyright attaches to
expression, not facts or ideas. It concluded that, to avoid
granting a copyright monopoly over the facts underlying history and
news, "`expression' [in such works must be confined] to its barest
elements -- the ordering and choice of the words themselves." Id. at 204. Thus similarities between the original and the
challenged work traceable to the copying or paraphrasing of
uncopyrightable material, such as historical facts, memoranda and
other public documents, and quoted remarks of third parties, must
be disregarded in evaluating whether the second author's use was
fair or infringing. "When the uncopyrighted material is stripped away, the article
in The Nation contains, at most, approximately Page 471 U. S. 545 300 words that are copyrighted. These remaining paragraphs and
scattered phrases are all verbatim quotations from the memoirs
which had not appeared previously in other publications. They
include a short segment of Ford's conversations with Henry
Kissinger and several other individuals. Ford's impressionistic
depictions of Nixon, ill with phlebitis after the resignation and
pardon, and of Nixon's character, constitute the major portion of
this material. It is these parts of the magazine piece on which
[the court] must focus in [its] examination of the question whether
there was a 'fair use' of copyrighted matter." Id. at 206. Examining the four factors enumerated in §
107, see infra at 471 U. S. 547 , n. 2, the majority found the purpose of
the article was "news reporting," the original work was essentially
factual in nature, the 300 words appropriated were insubstantial in
relation to the 2,250-word piece, and the impact on the market for
the original was minimal, as "the evidence [did] not support a
finding that it was the very limited use of expression per
se which led to Time's decision not to print the excerpt." The
Nation's borrowing of verbatim quotations merely "len[t]
authenticity to this politically significant material . . .
complementing the reporting of the facts." 723 F.2d at 208. The
Court of Appeals was especially influenced by the "politically
significant" nature of the subject matter and its conviction that
it is not "the purpose of the Copyright Act to impede that harvest
of knowledge so necessary to a democratic state" or "chill the
activities of the press by forbidding a circumscribed use of
copyrighted words." Id. at 197, 209. II We agree with the Court of Appeals that copyright is intended to
increase, and not to impede, the harvest of knowledge. But we
believe the Second Circuit gave insufficient deference to the
scheme established by the Copyright Act for Page 471 U. S. 546 fostering the original works that provide the seed and substance
of this harvest. The rights conferred by copyright are designed to
assure contributors to the store of knowledge a fair return for
their labors. Twentieth Century Music Corp. v. Aiken, 422 U. S. 151 , 422 U. S. 156 (1975).

															Article I, § 8, of the Constitution provides:

															"The Congress shall have Power . . . to Promote the Progress of
Science and useful Arts, by securing for limited Times to Authors
and Inventors the exclusive Right to their respective Writings and
Discoveries."

															As we noted last Term:

															"[This] limited grant is a means by which an important public
purpose may be achieved. It is intended to motivate the creative
activity of authors and inventors by the provision of a special
reward, and to allow the public access to the products of their
genius after the limited period of exclusive control has
expired." Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 , 464 U. S. 429 (1984). "The monopoly created by copyright thus rewards the
individual author in order to benefit the public." Id. at 464 U. S. 477 (dissenting opinion). This principle applies equally to works of
fiction and nonfiction. The book at issue here, for example, was
two years in the making, and began with a contract giving the
author's copyright to the publishers in exchange for their services
in producing and marketing the work. In preparing the book, Mr.
Ford drafted essays and word portraits of public figures and
participated in hundreds of taped interviews that were later
distilled to chronicle his personal viewpoint. It is evident that
the monopoly granted by copyright actively served its intended
purpose of inducing the creation of new material of potential
historical value.

															Section 106 of the Copyright Act confers a bundle of exclusive
rights to the owner of the copyright. [ Footnote 1 ] Under the Copyright Page 471 U. S. 547 Act, these rights -- to publish, copy, and distribute the
author's work -- vest in the author of an original work from the
time of its creation. § 106. In practice, the author commonly sells
his rights to publishers who offer royalties in exchange for their
services in producing and marketing the author's work. The
copyright owner's rights, however, are subject to certain statutory
exceptions. §§ 107-118. Among these is § 107, which codifies the
traditional privilege of other authors to make "fair use" of an
earlier writer's work. [ Footnote
2 ] In addition, no author may copyright facts or ideas. § 102.
The copyright is limited to those aspects of the work -- termed
"expression" -- that display the stamp of the author's
originality.

															Creation of a nonfiction work, even a compilation of pure fact,
entails originality. See, e.g., Schroeder v. William Morrow
& Co., 566 F.2d 3 (CA7 1977) (copyright in gardening
directory); cf. Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53 , 111 U. S. 58 (1884) (originator of a photograph may claim copyright in his
work). The copyright holders of "A Time to Heal" complied with the
relevant statutory notice and registration Page 471 U. S. 548 procedures. See §§ 106, 401, 408; App. to Pet. for
Cert. C-20. Thus there is no dispute that the unpublished
manuscript of "A Time to Heal," as a whole, was protected by § 106
from unauthorized reproduction. Nor do respondents dispute that
verbatim copying of excerpts of the manuscript's original form of
expression would constitute infringement unless excused as fair
use. See 1 M. Nimmer, Copyright § 2.11[B], p. 2-159 (1984)
(hereinafter Nimmer). Yet copyright does not prevent subsequent
users from copying from a prior author's work those constituent
elements that are not original -- for example, quotations borrowed
under the rubric of fair use from other copyrighted works, facts,
or materials in the public domain -- as long as such use does not
unfairly appropriate the author's original contributions. Ibid.; A. Latman, Fair Use of Copyrighted Works (1958),
reprinted as Study No. 14 in Copyright Law Revision Studies Nos.
1416, prepared for the Senate Committee on the Judiciary, 86th
Cong., 2d Sess., 7 (1960) (hereinafter Latman). Perhaps the
controversy between the lower courts in this case over
copyrightability is more aptly styled a dispute over whether The
Nation's appropriation of unoriginal and uncopyrightable elements
encroached on the originality embodied in the work as a whole.
Especially in the realm of factual narrative, the law is currently
unsettled regarding the ways in which uncopyrightable elements
combine with the author's original contributions to form protected
expression. Compare Wainwright Securities Inc. v. Wall Street
Transcript Corp., 558 F.2d 91 (CA2 1977) (protection accorded
author's analysis, structuring of material and marshaling of
facts), with Hoehling v. Universal City Studios, Inc., 618
F.2d 972 (CA2 1980) (limiting protection to ordering and choice of
words). See, e.g., 1 Nimmer § 2.11[D], at 2-164 -
2-165.

															We need not reach these issues, however, as The Nation has
admitted to lifting verbatim quotes of the author's original
language totaling between 300 and 400 words and constituting some
13% of The Nation article. In using generous Page 471 U. S. 549 verbatim excerpts of Mr. Ford's unpublished manuscript to lend
authenticity to its account of the forthcoming memoirs, The Nation
effectively arrogated to itself the right of first publication, an
important marketable subsidiary right. For the reasons set forth
below, we find that this use of the copyrighted manuscript, even
stripped to the verbatim quotes conceded by The Nation to be
copyrightable expression, was not a fair use within the meaning of
the Copyright Act. III A Fair use was traditionally defined as "a privilege in others
than the owner of the copyright to use the copyrighted material in
a reasonable manner without his consent." H. Ball, Law of Copyright
and Literary Property 260 (1944) (hereinafter Ball). The statutory
formulation of the defense of fair use in the Copyright Act
reflects the intent of Congress to codify the common law doctrine.
3 Nimmer § 13.05. Section 107 requires a case-by-case determination
whether a particular use is fair, and the statute notes four
nonexclusive factors to be considered. This approach was "intended
to restate the [preexisting] judicial doctrine of fair use, not to
change, narrow, or enlarge it in any way." H.R.Rep. No. 94-1476, p.
66 (1976) (hereinafter House Report).

															"[T]he author's consent to a reasonable use of his copyrighted
works ha[d] always been implied by the courts as a necessary
incident of the constitutional policy of promoting the progress of
science and the useful arts, since a prohibition of such use would
inhibit subsequent writers from attempting to improve upon prior
works, and thus . . . frustrate the very ends sought to be
attained."

															Ball 260. Professor Latman, in a study of the doctrine of fair
use commissioned by Congress for the revision effort, see Sony
Corp. of America v. Universal City Studios, Inc., 464 U.S. at 464 U. S.
462 -463, n. 9 (dissenting opinion), summarized prior law
as turning on the

															"importance Page 471 U. S. 550 of the material copied or performed from the point of view of
the reasonable copyright owner. In other words, would the
reasonable copyright owner have consented to the use?"

															Latman 15. [ Footnote 3 ]

															As early as 1841, Justice Story gave judicial recognition to the
doctrine in a case that concerned the letters of another former
President, George Washington.

															"[A] reviewer may fairly cite largely from the original work, if
his design be really and truly to use the passages for the purposes
of fair and reasonable criticism. On the other hand, it is as clear
that, if he thus cites the most important parts of the work, with a
view not to criticise, but to supersede the use of the original
work, and substitute the review for it, such a use will be deemed
in law a piracy." Folsom v. Marsh, 9 F. Cas. 342, 344-345 (No. 4,901) (CC
Mass.) As Justice Story's hypothetical illustrates, the fair use
doctrine has always precluded a use that "supersede[s] the use of
the original." Ibid. Accord, S.Rep. No. 94-473,
p. 65 (1975) (hereinafter Senate Report).

															Perhaps because the fair use doctrine was predicated on the
author's implied consent to "reasonable and customary" use when he
released his work for public consumption, fair use traditionally
was not recognized as a defense to charges Page 471 U. S. 551 of copying from an author's as yet unpublished works. [ Footnote 4 ] Under common law copyright,
"the property of the author . . . in his intellectual creation
[was] absolute until he voluntarily part[ed] with the same." American Tobacco Co. v. Werckmeister, 207 U.
S. 284 , 207 U. S. 299 (1907); 2 Nimmer § 8.23, at 8-273. This absolute rule, however, was
tempered in practice by the equitable nature of the fair use
doctrine. In a given case, factors such as implied consent through de facto publication on performance or dissemination of a
work may tip the balance of equities in favor of prepublication
use. See Copyright Law Revision -- Part 2: Discussion and
Comments on Report of the Register of Copyrights on General
Revision of the U.S. Copyright Law, 88th Cong., 1st Sess., 27 (H.R.
Comm. Print 1963) (discussion suggesting works disseminated to the
public in a form not constituting a technical "publication" should
nevertheless be subject to fair use); 3 Nimmer § 13.05, at 13-62,
n. 2. But it has never been seriously disputed that "the fact that
the plaintiff's work is unpublished . . . is a factor tending to
negate the defense of fair use." Ibid. Publication of an
author's expression before he has authorized its dissemination
seriously infringes the author's right to decide when and whether
it will be made public, a factor not present in fair use of
published works. [ Footnote
5 ] Page 471 U. S. 552 Respondents contend, however, that Congress, in including first
publication among the rights enumerated in § 106, which are
expressly subject to fair use under § 107, intended that fair use
would apply in pari materia to published and unpublished
works. The Copyright Act does not support this proposition.

															The Copyright Act represents the culmination of a major
legislative reexamination of copyright doctrine. See Mills
Music, Inc. v. Snyder, 469 U. S. 153 , 469 U. S.
159 -160 (1985); Sony Corp. of America v. Universal
City Studios, Inc., 464 U.S. at 464 U. S.
462 -463, n. 9 (dissenting opinion). Among its other
innovations, it eliminated publication "as a dividing line between
common law and statutory protection," House Report at 129,
extending statutory protection to all works from the time of their
creation. It also recognized for the first time a distinct
statutory right of first publication, which had previously been an
element of the common law protections afforded unpublished works.
The Report of the House Committee on the Judiciary confirms
that

															"Clause (3) of section 106, establishes the exclusive right of
publications. . . . Under this provision, the copyright owner would
have the right to control the first public distribution of an
authorized copy . . . of his work." Id. at 62.

															Though the right of first publication, like the other rights
enumerated in § 106, is expressly made subject to the fair use
provision of § 107, fair use analysis must always be tailored to
the individual case. Id. at 65; 3 Nimmer § 13.05[A].
The Page 471 U. S. 553 nature of the interest at stake is highly relevant to whether a
given use is fair. From the beginning, those entrusted with the
task of revision recognized the

															"overbalancing reasons to preserve the common law protection of
undisseminated works until the author or his successor chooses to
disclose them."

															Copyright Law Revision, Report of the Register of Copyrights on
the General Revision of the U.S. Copyright Law, 87th Cong., 1st
Sess., 41 (Comm. Print 1961). The right of first publication
implicates a threshold decision by the author whether and in what
form to release his work. First publication is inherently different
from other § 106 rights in that only one person can be the first
publisher; as the contract with Time illustrates, the commercial
value of the right lies primarily in exclusivity. Because the
potential damage to the author from judicially enforced "sharing"
of the first publication right with unauthorized users of his
manuscript is substantial, the balance of equities in evaluating
such a claim of fair use inevitably shifts.

															The Senate Report confirms that Congress intended the
unpublished nature of the work to figure prominently in fair use
analysis. In discussing fair use of photocopied materials in the
classroom the Committee Report states:

															"A key, though not necessarily determinative, factor in fair use
is whether or not the work is available to the potential user. If
the work is 'out of print' and unavailable for purchase through
normal channels, the user may have more justification for
reproducing it. . . . The applicability of the fair use doctrine to
unpublished works is narrowly limited, since, although the work is
unavailable, this is the result of a deliberate choice on the part
of the copyright owner. Under ordinary circumstances, the copyright
owner's 'right of first publication' would outweigh any needs of
reproduction for classroom purposes."

															Senate Report at 64. Although the Committee selected
photocopying of classroom materials to illustrate fair use, it
emphasized that "the same Page 471 U. S. 554 general standards of fair use are applicable to all kinds of
uses of copyrighted material." Id. at 65. We find
unconvincing respondents' contention that the absence of the quoted
passage from the House Report indicates an intent to abandon the
traditional distinction between fair use of published and
unpublished works. It appears instead that the fair use discussion
of photocopying of classroom materials was omitted from the final
Report because educators and publishers in the interim had
negotiated a set of guidelines that rendered the discussion
obsolete. House Report at 67. The House Report nevertheless
incorporates the discussion by reference, citing to the Senate
Report and stating: "The Committee has reviewed this discussion,
and considers it still has value as an analysis of various aspects
of the [fair use] problem." Ibid. Even if the legislative history were entirely silent, we would
be bound to conclude from Congress' characterization of § 107 as a
"restatement" that its effect was to preserve existing law
concerning fair use of unpublished works as of other types of
protected works, and not to "change, narrow, or enlarge it." Id. at 66. We conclude that the unpublished nature of a
work is "[a] key, though not necessarily determinative, factor"
tending to negate a defense of fair use. Senate Report at 64. See 3 Nimmer § 13.05, at 13-62, n. 2; W. Patry, The Fair
Use Privilege in Copyright Law 125 (1985) (hereinafter Patry).

															We also find unpersuasive respondents' argument that fair use
may be made of a soon-to-be-published manuscript on the ground that
the author has demonstrated he has no interest in nonpublication.
This argument assumes that the unpublished nature of copyrighted
material is only relevant to letters or other confidential writings
not intended for dissemination. It is true that common law
copyright was often enlisted in the service of personal privacy. See Brandeis & Warren, The Right to Privacy, 4
Harv.L.Rev.193, 198-199 (1890). In its commercial guise, however,
an author's right to choose when he will publish is no less
deserving of protection. Page 471 U. S. 555 The period encompassing the work's initiation, its preparation,
and its grooming for public dissemination is a crucial one for any
literary endeavor. The Copyright Act, which accords the copyright
owner the "right to control the first public distribution" of his
work, House Report at 62, echos the common law's concern that the
author or copyright owner retain control throughout this critical
stage. See generally Comment, The Stage of Publication as
a "Fair Use" Factor: Harper & Row, Publishers v. Nation
Enterprises, 58 St. John's L.Rev. 597 (1984). The obvious
benefit to author and public alike of assuring authors the leisure
to develop their ideas free from fear of expropriation outweighs
any short-term "news value" to be gained from premature publication
of the author's expression. See Goldstein, Copyright and
the First Amendment, 70 Colum.L.Rev. 983, 1004-1006 (1970) (The
absolute protection the common law accorded to soon-to-be published
works "[was] justified by [its] brevity and expedience"). The
author's control of first public distribution implicates not only
his personal interest in creative control, but his property
interest in exploitation of prepublication rights, which are
valuable in themselves and serve as a valuable adjunct to publicity
and marketing. See Belshi v. Woodward, 598 F. Supp.
36 (DC 1984) (successful marketing depends on coordination of
serialization and release to public); Marks, Subsidiary Rights and
Permissions, in What Happens in Book Publishing 230 (C. Grannis
ed.1967) (exploitation of subsidiary rights is necessary to
financial success of new books). Under ordinary circumstances, the
author's right to control the first public appearance of his
undisseminated expression will outweigh a claim of fair use. B Respondents, however, contend that First Amendment values
require a different rule under the circumstances of this case. The
thrust of the decision below is that "[t]he scope of [fair use] is
undoubtedly wider when the information Page 471 U. S. 556 conveyed relates to matters of high public concern." Consumers Union of the United States, Inc. v. General Signal
Corp., 724 F.2d 1044, 1050 (CA2 1983) (construing 723 F.2d 195
(1983) (case below) as allowing advertiser to quote Consumer
Reports), cert. denied, 469 U.S. 823 (1984). Respondents
advance the substantial public import of the subject matter of the
Ford memoirs as grounds for excusing a use that would ordinarily
not pass muster as a fair use -- the piracy of verbatim quotations
for the purpose of "scooping" the authorized first serialization.
Respondents explain their copying of Mr. Ford's expression as
essential to reporting the news story it claims the book itself
represents. In respondents' view, not only the facts contained in
Mr. Ford's memoirs, but "the precise manner in which [he] expressed
himself [were] as newsworthy as what he had to say." Brief for
Respondents 38-39. Respondents argue that the public's interest in
learning this news as fast as possible outweighs the right of the
author to control its first publication.

															The Second Circuit noted, correctly, that copyright's idea/
expression dichotomy

															"strike[s] a definitional balance between the First Amendment
and the Copyright Act by permitting free communication of facts
while still protecting an author's expression."

															723 F.2d at 203. No author may copyright his ideas or the facts
he narrates. 17 U.S.C. § 102(b). See, e.g., New York Times Co.
v. United States, 403 U. S. 713 , 403 U. S. 726 ,
n. (1971) (BRENNAN, J., concurring) (Copyright laws are not
restrictions on freedom of speech, as copyright protects only form
of expression, and not the ideas expressed); 1 Nimmer § 1.10[B][2].
As this Court long ago observed:

															"[T]he news element -- the information respecting current events
contained in the literary production -- is not the creation of the
writer, but is a report of matters that ordinarily are publici
juris; it is the history of the day." International News Service v. Associated Press, 248 U. S. 215 , 248 U. S. 234 (1918). But copyright assures those who write and publish factual
narratives such as "A Time to Heal" that Page 471 U. S. 557 they may at least enjoy the right to market the original
expression contained therein as just compensation for their
investment. Cf. Zacchini v. Scripps-Howard Broadcasting
Co., 433 U. S. 562 , 433 U. S. 575 (1977).

															Respondents' theory, however, would expand fair use to
effectively destroy any expectation of copyright protection in the
work of a public figure. Absent such protection, there would be
little incentive to create or profit in financing such memoirs, and
the public would be denied an important source of significant
historical information. 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. See Wainwright Securities
Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (CA2 1977), cert. denied, 434 U.S. 1014 (1978).

															Nor do respondents assert any actual necessity for circumventing
the copyright scheme with respect to the types of works and users
at issue here. [ Footnote 6 ]
Where an author and publisher have invested extensive resources in
creating an original work and are poised to release it to the
public, no legitimate aim is served by preempting the right of
first publication. The fact that the words the author has chosen to
clothe his narrative may of themselves be "newsworthy" is not an
independent justification for unauthorized copying of the author's
expression prior to publication. To paraphrase another recent
Second Circuit decision:

															"[Respondent] possessed an unfettered right to use any factual
information revealed in [the memoirs] for the purpose of
enlightening its audience, but it can claim Page 471 U. S. 558 no need to 'bodily appropriate' [Mr. Ford's] 'expression' of
that information by utilizing portions of the actual [manuscript].
The public interest in the free flow of information is assured by
the law's refusal to recognize a valid copyright in facts. The fair
use doctrine is not a license for corporate theft, empowering a
court to ignore a copyright whenever it determines the underlying
work contains material of possible public importance." Iowa State University Research Foundation, Inc. v. American
Broadcasting Cos., Inc., 621 F.2d 57, 61 (1980) (citations
omitted). Accord, Roy Export Co. Establishment v. Columbia
Broadcasting System, Inc., 503 F.
Supp. 1137 (SDNY 1980) ("newsworthiness" of material copied
does not justify copying), aff'd, 672 F.2d 1095 (CA2), cert. denied, 459 U.S. 826 (1982); Quinto v. Legal
Times of Washington, Inc., 506 F.
Supp. 554 (DC 1981) (same).

															In our haste to disseminate news, it should not be forgotten
that the Framers intended copyright itself to be the engine of free
expression. By establishing a marketable right to the use of one's
expression, copyright supplies the economic incentive to create and
disseminate ideas. This Court stated in Mazer v. Stein, 347 U. S. 201 , 209
(1954):

															"The economic philosophy behind the clause empowering Congress
to grant patents and copyrights is the conviction that
encouragement of individual effort by personal gain is the best way
to advance public welfare through the talents of authors and
inventors in 'science and useful Arts.'"

															And again in Twentieth Century Music Corp. v.
Aiken: "The immediate effect of our copyright law is to secure a fair
return for an 'author's' creative labor. But the ultimate aim is,
by this incentive, to stimulate [the creation of useful works] for
the general public good."

															422 U.S. at 422 U. S.
156 . Page 471 U. S. 559 It is fundamentally at odds with the scheme of copyright to
accord lesser rights in those works that are of greatest importance
to the public. Such a notion ignores the major premise of
copyright, and injures author and public alike.

															"[T]o propose that fair use be imposed whenever the 'social
value [of dissemination] . . . outweighs any detriment to the
artist' would be to propose depriving copyright owners of their
right in the property precisely when they encounter those users who
could afford to pay for it."

															Gordon, Fair Use as Market Failure: A Structural and Economic
Analysis of the Betamax Case and its Predecessors, 82
Colum.L.Rev. 1600, 1615 (1982). And as one commentator has
noted:

															"If every volume that was in the public interest could be
pirated away by a competing publisher, . . . the public [soon]
would have nothing worth reading."

															Sobel, Copyright and the First Amendment: A Gathering Storm?, 19
ASCAP Copyright Law Symposium 43, 78 (1971). See generally Comment, Copyright and the First Amendment; Where Lies the Public
Interest?, 59 Tulane L.Rev. 135 (1984).

															Moreover, freedom of thought and expression "includes both the
right to speak freely and the right to refrain from speaking at
all." Wooley v. Maynard, 430 U. S. 705 , 430 U. S. 714 (1977) (BURGER, C.J.). We do not suggest this right not to speak
would sanction abuse of the copyright owner's monopoly as an
instrument to suppress facts. But in the words of New York's Chief
Judge Fuld:

															"The essential thrust of the First Amendment is to prohibit
improper restraints on the voluntary public expression of ideas; it
shields the man who wants to speak or publish when others wish him
to be quiet. There is necessarily, and within suitably defined
areas, a concomitant freedom not to speak publicly, one which
serves the same ultimate end as freedom of speech in its
affirmative aspect." Estate of Hemingway v. Random House, Inc., 23 N.Y.2d
341, 348, 244 N.E.2d 250, 255 (1968). Page 471 U. S. 560 Courts and commentators have recognized that copyright, and the
right of first publication in particular, serve this countervailing
First Amendment value. See Schnapper v. Foley, 215
U.S.App.D.C. 59, 667 F.2d 102 (1981), cert. denied, 455
U.S. 948 (1982); 1 Nimmer § 1.10[B], at 1-70, n. 24; Patry
140-142.

															In view of the First Amendment protections already embodied in
the Copyright Act's distinction between copyrightable expression
and uncopyrightable facts and ideas, and the latitude for
scholarship and comment traditionally afforded by fair use, we see
no warrant for expanding the doctrine of fair use to create what
amounts to a public figure exception to copyright. Whether verbatim
copying from a public figure's manuscript in a given case is or is
not fair must be judged according to the traditional equities of
fair use. IV Fair use is a mixed question of law and fact. Pacific &
Southern Co. v. Duncan, 744 F.2d 1490, 1495, n. 8 (CA11 1984).
Where the district court has found facts sufficient to evaluate
each of the statutory factors, an appellate court

															"need not remand for further factfinding . . . , [but] may
conclude as a matter of law that [the challenged use] do[es] not
qualify as a fair use of the copyrighted work." Id. at 1495. Thus whether The Nation article
constitutes fair use under § 107 must be reviewed in light of the
principles discussed above. The factors enumerated in the section
are not meant to be exclusive:

															"[S]ince the doctrine is an equitable rule of reason, no
generally applicable definition is possible, and each case raising
the question must be decided on its own facts."

															House Report at 65. The four factors identified by Congress as
especially relevant in determining whether the use was fair are:
(1) the purpose and character of the use; (2) the nature of the
copyrighted work; (3) the substantiality of the portion used in
relation to the copyrighted work as Page 471 U. S. 561 a whole; (4) the effect on the potential market for or value of
the copyrighted work. We address each one separately. Purpose of the Use. The Second Circuit correctly
identified news reporting as the general purpose of The Nation's
use. News reporting is one of the examples enumerated in § 107 to
"give some idea of the sort of activities the courts might regard
as fair use under the circumstances." Senate Report at 61. This
listing was not intended to be exhaustive, see ibid.; §
101 (definition of "including" and "such as"), or to single out any
particular use as presumptively a "fair" use. The drafters resisted
pressures from special interest groups to create presumptive
categories of fair use, but structured the provision as an
affirmative defense requiring a case-by-case analysis. See H.R.Rep. No. 83, 90th Cong., 1st Sess., 37 (1967); Patry 477, n.
4.

															"[W]hether a use referred to in the first sentence of section
107 is a fair use in a particular case will depend upon the
application of the determinative factors, including those mentioned
in the second sentence."

															Senate Report at 62. The fact that an article arguably is
"news," and therefore a productive use, is simply one factor in a
fair use analysis.

															We agree with the Second Circuit that the trial court erred in
fixing on whether the information contained in the memoirs was
actually new to the public. As Judge Meskill wisely noted,
"[c]ourts should be chary of deciding what is and what is not
news." 723 F.2d at 215 (dissenting). Cf. Gertz v. Robert Welch,
Inc., 418 U. S. 323 , 418 U. S.
345 -346 (1974).

															"The issue is not what constitutes 'news,' but whether a claim
of newsreporting is a valid fair use defense to an infringement of copyrightable expression. "

															Patry 119. The Nation has every right to seek to be the first to
publish information. But The Nation went beyond simply reporting
uncopyrightable information and actively sought to exploit the
headline value of its infringement, making a "news event" out of
its unauthorized first publication of a noted figure's copyrighted
expression. Page 471 U. S. 562 The fact that a publication was commercial, as opposed to
nonprofit, is a separate factor that tends to weigh against a
finding of fair use.

															"[E]very commercial use of copyrighted material is presumptively
an unfair exploitation of the monopoly privilege that belongs to
the owner of the copyright." Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. at 464 U. S. 451 .
In arguing that the purpose of news reporting is not purely
commercial, The Nation misses the point entirely. The crux of the
profit/nonprofit distinction is not whether the sole motive of the
use is monetary gain, but whether the user stands to profit from
exploitation of the copyrighted material without paying the
customary price. See Roy Export Co. Establishment v. Columbia
Broadcasting System, Inc., 503 F. Supp. at 1144; 3 Nimmer §
13.05[A][1], at 13-71, n. 25.3.

															In evaluating character and purpose, we cannot ignore The
Nation's stated purpose of scooping the forthcoming hardcover and
Time abstracts. [ Footnote 7 ]
App. to Pet. for Cert. C-27. The Nation's use had not merely the
incidental effect, but the intended purpose, of supplanting the
copyright holder's commercially valuable right of first
publication. See Meredith Corp. v. Harper & Row,
Publishers, Inc., 378 F.
Supp. 686 , 690 (SDNY) (purpose of text was to compete with
original), aff'd, 500 F.2d 1221 (CA2 1974). Also relevant
to the "character" of the use is "the propriety of the defendant's
conduct." 3 Nimmer § 13.05[A], at 13-72. "Fair use presupposes good faith' and `fair dealing.'" Time Inc. v. Bernard Geis
Associates, 293 F.
Supp. 130 , 146 (SDNY 1968), quoting Page 471 U. S. 563 Schulman, Fair Use and the Revision of the Copyright Act, 53
Iowa L.Rev. 832 (1968). The trial court found that The Nation
knowingly exploited a purloined manuscript. App. to Pet. for Cert.
B-1, C-20 - C-21, C-28 - C-29. Unlike the typical claim of fair
use, The Nation cannot offer up even the fiction of consent as
justification. Like its competitor newsweekly, it was free to bid
for the right of abstracting excerpts from "A Time to Heal." Fair
use "distinguishes between `a true scholar and a chiseler who
infringes a work for personal profit.'" Wainwright Securities
Inc. v. Wall Street Transcript Corp., 558 F.2d at 94, quoting
from Hearings on Bills for the General Revision of the Copyright
Law before the House Committee on the Judiciary, 89th Cong., 1st
Sess., ser. 8, pt. 3, p. 1706 (1966) (statement of John
Schulman). Nature of the Copyrighted Work. Second, the Act directs
attention to the nature of the copyrighted work. "A Time to Heal"
may be characterized as an unpublished historical narrative or
autobiography. The law generally recognizes a greater need to
disseminate factual works than works of fiction or fantasy. See Gorman, Fact or Fancy? The Implications for Copyright,
29 J.Copyright Soc. 560, 561 (1982).

															"[E]ven within the field of fact works, there are gradations as
to the relative proportion of fact and fancy. One may move from
sparsely embellished maps and directories to elegantly written
biography. The extent to which one must permit expressive language
to be copied, in order to assure dissemination of the underlying
facts, will thus vary from case to case." Id. at 563. Some of the briefer quotes from the memoirs
are arguably necessary adequately to convey the facts; for example,
Mr. Ford's characterization of the White House tapes as the
"smoking gun" is perhaps so integral to the idea expressed as to be
inseparable from it. Cf. 1 Nimmer § 1.10[C]. But The
Nation did not stop at isolated phrases, and instead excerpted
subjective descriptions and portraits of public figures whose power
lies in the author's individualized expression. Such Page 471 U. S. 564 use, focusing on the most expressive elements of the work,
exceeds that necessary to disseminate the facts.

															The fact that a work is unpublished is a critical element of its
"nature." 3 Nimmer § 13.05[A]; Comment, 58 St. John's L.Rev. at
613. Our prior discussion establishes that the scope of fair use is
narrower with respect to unpublished works. While even substantial
quotations might qualify as fair use in a review of a published
work or a news account of a speech that had been delivered to the
public or disseminated to the press, see House Report at
65, the author's right to control the first public appearance of
his expression weighs against such use of the work before its
release. The right of first publication encompasses not only the
choice whether to publish at all, but also the choices of when,
where, and in what form first to publish a work.

															In the case of Mr. Ford's manuscript, the copyright holders'
interest in confidentiality is irrefutable; the copyright holders
had entered into a contractual undertaking to "keep the manuscript
confidential" and required that all those to whom the manuscript
was shown also "sign an agreement to keep the manuscript
confidential." App. to Pet. for Cert. 1C-20. While the copyright
holders' contract with Time required Time to submit its proposed
article seven days before publication, The Nation's clandestine
publication afforded no such opportunity for creative or quality
control. Id. at C-18. It was hastily patched together, and
contained "a number of inaccuracies." App. 300b-300c (testimony of
Victor Navasky). A use that so clearly infringes the copyright
holder's interests in confidentiality and creative control is
difficult to characterize as "fair." Amount and Substantiality of the Portion Used. Next,
the Act directs us to examine the amount and substantiality of the
portion used in relation to the copyrighted work as a whole. In
absolute terms, the words actually quoted were an insubstantial
portion of "A Time to Heal." The District Court, however, found
that "[T]he Nation took what was Page 471 U. S. 565 essentially the heart of the book." 557 F. Supp. at 1072. We
believe the Court of Appeals erred in overruling the District
Judge's evaluation of the qualitative nature of the taking. See, e.g., Roy Export Co. Establishment v. Columbia
Broadcasting System, Inc., 503 F. Supp. at 1145 (taking of 55
seconds out of 1 hour and 29-minute film deemed qualitatively
substantial). A Time editor described the chapters on the pardon as
"the most interesting and moving parts of the entire manuscript."
Reply Brief for Petitioners 16, n. 8. The portions actually quoted
were selected by Mr. Navasky as among the most powerful passages in
those chapters. He testified that he used verbatim excerpts because
simply reciting the information could not adequately convey the
"absolute certainty with which [Ford] expressed himself," App. 303,
or show that "this comes from President Ford," id. at 305,
or carry the "definitive quality" of the original, id. at
306. In short, he quoted these passages precisely because they
qualitatively embodied Ford's distinctive expression.

															As the statutory language indicates, a taking may not be excused
merely because it is insubstantial with respect to the infringing work. As Judge Learned Hand cogently remarked,
"no plagiarist can excuse the wrong by showing how much of his work
he did not pirate." Sheldon v. Metro-Goldwyn Pictures
Corp., 81 F.2d 49, 56 (CA2), cert. denied, 298 U.S.
669 (1936). Conversely, the fact that a substantial portion of the
infringing work was copied verbatim is evidence of the qualitative
value of the copied material, both to the originator and to the
plagiarist who seeks to profit from marketing someone else's
copyrighted expression.

															Stripped to the verbatim quotes, [ Footnote 8 ] the direct takings from the unpublished
manuscript constitute at least 13% of the infringing Page 471 U. S. 566 article. See Meeropol v. Nizer, 560 F.2d 1061, 1071
(CA2 1977) (copyrighted letters constituted less than 1% of
infringing work but were prominently featured). The Nation article
is structured around the quoted excerpts which serve as its
dramatic focal points. See Appendix to this opinion, post p. 471 U. S. 570 .
In view of the expressive value of the excerpts and their key role
in the infringing work, we cannot agree with the Second Circuit
that the "magazine took a meager, indeed an infinitesimal, amount
of Ford's original language." 723 F.2d at 209. Effect on the Market. Finally, the Act focuses on "the
effect of the use upon the potential market for or value of the
copyrighted work." This last factor is undoubtedly the single most
important element of fair use. [ Footnote 9 ] See 3 Nimmer § 13.05[A], at 13-76,
and cases cited therein. "Fair use, when properly applied, is
limited to copying by others which Page 471 U. S. 567 does not materially impair the marketability of the work which
is copied." 1 Nimmer § l.10[D], at 1-87. The trial court found not
merely a potential, but an actual, effect on the market. Time's
cancellation of its projected serialization and its refusal to pay
the $12,500 were the direct effect of the infringement. The Court
of Appeals rejected this factfinding as clearly erroneous, noting
that the record did not establish a causal relation between Time's
nonperformance and respondents' unauthorized publication of Mr.
Ford's expression, as opposed to the facts taken from the
memoirs. We disagree. Rarely will a case of copyright infringement
present such clear-cut evidence of actual damage. Petitioners
assured Time that there would be no other authorized publication of
any portion of the unpublished manuscript prior to April 23, 1979. Any publication of material from chapters 1 and 3 would
permit Time to renegotiate its final payment. Time cited The
Nation's article, which contained verbatim quotes from the
unpublished manuscript, as a reason for its nonperformance. With
respect to apportionment of profits flowing from a copyright
infringement, this Court has held that an infringer who commingles
infringing and noninfringing elements "must abide the consequences,
unless he can make a separation of the profits so as to assure to
the injured party all that justly belongs to him." Sheldon v.
Metro-Goldwyn Pictures Corp., 309 U.
S. 390 , 309 U. S. 406 (1940). Cf. 17 U.S.C. § 504(b) (the infringer is required
to prove elements of profits attributable to other than the
infringed work). Similarly, once a copyright holder establishes
with reasonable probability the existence of a causal connection
between the infringement and a loss of revenue, the burden properly
shifts to the infringer to show that this damage would have
occurred had there been no taking of copyrighted expression. See 3 Nimmer § 14.02, at 14-7 - 14-8.1. Petitioners
established a prima facie case of actual damage that
respondents failed to rebut. See Stevens Linen
Associates, Page 471 U. S. 568 Inc. v. Mastercraft Corp., 656 F.2d 11, 15 (CA2 1981).
The trial court properly awarded actual damages and accounting of
profits. See 17 U.S.C. § 504(b).

															More important, to negate fair use, one need only show that, if
the challenged use "should become widespread, it would adversely
affect the potential market for the copyrighted work." Sony Corp. of America v. Universal City Studios, Inc., 464
U.S. at 464 U. S. 451 (emphasis added); id. at 464 U. S. 484 ,
and n. 36 (collecting cases) (dissenting opinion). This inquiry
must take account not only of harm to the original, but also of
harm to the market for derivative works. See Iowa State
University Research Foundation, Inc. v. American Broadcasting
Cos., 621 F.2d 57 (CA2 1980); Meeropol v. Nizer,
supra, at 1070; Roy Export v. Columbia Broadcasting
System, Inc., 503 F. Supp. at 1146.

															"If the defendant's work adversely affects the value of any of
the rights in the copyrighted work (in this case the adaptation
[and serialization] right) the use is not fair."

															3 Nimmer § 13.05[B], at 13-77 - 13-78 (footnote omitted).

															It is undisputed that the factual material in the balance of The
Nation's article, besides the verbatim quotes at issue here, was
drawn exclusively from the chapters on the pardon. The excerpts
were employed as featured episodes in a story about the Nixon
pardon -- precisely the use petitioners had licensed to Time. The
borrowing of these verbatim quotes from the unpublished manuscript
lent The Nation's piece a special air of authenticity -- as Navasky
expressed it, the reader would know it was Ford speaking, and not
The Nation. App. 300c. Thus it directly competed for a share of the
market for prepublication excerpts. The Senate Report states:

															"With certain special exceptions . . . a use that supplants any
part of the normal market for a copyrighted work would ordinarily
be considered an infringement."

															Senate Report at 65. Page 471 U. S. 569 Placed in a broader perspective, a fair use doctrine that
permits extensive prepublication quotations from an unreleased
manuscript without the copyright owner's consent poses substantial
potential for damage to the marketability of first serialization
rights in general.

															"Isolated instances of minor infringements, when multiplied many
times, become in the aggregate a major inroad on copyright that
must be prevented." Ibid. V The Court of Appeals erred in concluding that The Nation's use
of the copyrighted material was excused by the public's interest in
the subject matter. It erred, as well, in overlooking the
unpublished nature of the work and the resulting impact on the
potential market for first serial rights of permitting unauthorized
prepublication excerpts under the rubric of fair use. Finally, in
finding the taking "infinitesimal," the Court of Appeals accorded
too little weight to the qualitative importance of the quoted
passages of original expression. In sum, the traditional doctrine
of fair use, as embodied in the Copyright Act, does not sanction
the use made by The Nation of these copyrighted materials. Any
copyright infringer may claim to benefit the public by increasing
public access to the copyrighted work. See Pacific &
Southern Co. v. Duncan, 744 F.2d at 1499-1500. But Congress
has not designed, and we see no warrant for judicially imposing, a
"compulsory license" permitting unfettered access to the
unpublished copyrighted expression of public figures.

															The Nation conceded that its verbatim copying of some 300 words
of direct quotation from the Ford manuscript would constitute an
infringement unless excused as a fair use. Because we find that The
Nation's use of these verbatim excerpts from the unpublished
manuscript was not a fair use, the judgment of the Court of Appeals
is reversed, and the case is remanded for further proceedings
consistent with this opinion. It is so ordered. Page 471 U. S. 570 [ Footnote 1 ]

															Section 106 provides in pertinent part:

															"Subject to sections 107 through 118, the owner of copyright
under this title has the exclusive rights to do and authorize any
of the following:"

															"(1) to reproduce the copyrighted work in copies . . . ;"

															"(2) to prepare derivative works based upon the copyrighted
work;"

															"(3) to distribute copies . . . of the copyrighted work to the
public. . . ."

															[ Footnote 2 ]

															Section 107 states:

															"Notwithstanding the provisions of section 106, the fair use of
a copyrighted work . . . for purposes such as criticism, comment,
news reporting, teaching (including multiple copies for classroom
use), scholarship, or research, is not an infringement of
copyright. In determining whether the use made of a work in any
particular case is a fair use the factors to be considered shall
include -- "

															"(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit educational
purposes;"

															"(2) the nature of the copyrighted work;"

															"(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and"

															"(4) the effect of the use upon the potential market for or
value of the copyrighted work."

															[ Footnote 3 ]

															Professor Nimmer notes:

															"[Perhaps] no more precise guide can be stated than Joseph
McDonald's clever paraphrase of the Golden Rule: 'Take not from
others to such an extent and in such a manner that you would be
resentful if they so took from you.'"

															3 Nimmer § 13.05[A], at 13-66, quoting McDonald, Non-infringing
Uses, 9 Bull.Copyright Soc. 466, 467 (1962). This "equitable rule
of reason," Sony Corp. of America v. Universal City Studios,
Inc., 464 U.S. at 464 U. S.
448 ,

															"permits courts to avoid rigid application of the copyright
statute when, on occasion, it would stifle the very creativity
which that law is designed to foster." Iowa State University Research Foundation, Inc. v. American
Broadcasting Cos., 621 F.2d 57, 60 (CA2 1980). See
generally L. Seltzer, Exemptions and Fair Use in Copyright
18-48 (1978).

															[ Footnote 4 ] See Latman 7; Strauss, Protection of Unpublished Works
(1957), reprinted as Study No. 29 in Copyright Law Revision Studies
Nos. 29-31, prepared for the Senate Committee on the Judiciary,
86th Cong., 2d Sess., 4, n. 32 (1961) (citing cases); R. Shaw,
Literary Property in the United States 67 (1950) ("[T]here can be
no fair use' of unpublished material"); Ball 260, n. 5 ("[T]he
doctrine of fair use does not apply to unpublished works"); A.
Weil, American Copyright Law § 276, p. 115 (1917) (the author of an
unpublished work "has, probably, the right to prevent even a `fair
use' of the work by others"). Cf. M. Flint, A User's Guide
to Copyright � 10.06 (1979) (United Kingdom) ("no fair dealing with
unpublished works"); Beloff v. Pressdram Ltd., [1973] All
E.R. 241, 263 (Ch.1972) (same). [ Footnote 5 ] See, e.g., 33 U. S. Peters, 8 Pet. 591, 33 U. S. 657 (1834) (distinguishing the author's common law right to "obtain
redress against anyone who . . . by improperly obtaining a copy [of
his unpublished work] endeavors to realize a profit by its
publication" from rights in a published work, which are prescribed
by statute); Press Publishing Co. v. Monroe, 73 F. 196,
199 (CA2), writ of error dism'd, 164 U.
S. 105 (1896); Stanley v. Columbia Broadcasting
System, Inc., 35 Cal. 2d
653 , 660-661, 221 P.2d 73, 77-78 (1950) (en banc); Golding
v. RKO Radio Pictures, Inc., 193 P.2d 153, 162 (Cal.App.1948)
("An unauthorized appropriation of [an unpublished work] is not to
be neutralized on the plea that it is such a little one'"), aff'd, 35 Cal. 2d
690 , 221 P.2d 95 (1950); Fendler v. Morosco, 253 N.Y.
281, 291, 171 N.E. 56, 59 ("Since plaintiff had not published or
produced her play, perhaps any use that others made of it might be
unfair"), rehearing denied, 254 N.Y. 563, 173 N.E. 867
(1930). [ Footnote 6 ]

															It bears noting that Congress in the Copyright Act recognized a
public interest warranting specific exemptions in a number of areas
not within traditional fair use, see, e.g., 17 U.S.C. §
115 (compulsory license for records); § 105 (no copyright in
Government works). No such exemption limits copyright in personal
narratives written by public servants after they leave Government
service.

															[ Footnote 7 ]

															The dissent excuses The Nation's unconsented use of an
unpublished manuscript as "standard journalistic practice," taking
judicial notice of New York Times articles regarding the memoirs of
John Erlichman, John Dean's "Blind Ambition," and Bernstein and
Woodward's "The Final Days" as proof of such practice. Post at 471 U. S.
590 -593, and n. 14. Amici curiae sought to
bring this alleged practice to the attention of the Court of
Appeals for the Second Circuit, citing these same articles. The
Court of Appeals, at Harper & Row's motion, struck these
exhibits for failure of proof at trial, Record Doc. No.19; thus
they are not a proper subject for this Court's judicial notice.

															[ Footnote 8 ] See Appendix to this opinion, post p. 471 U. S. 570 .
The Court of Appeals found that only "approximately 300 words" were
copyrightable but did not specify which words. The court's
discussion, however, indicates it excluded from consideration those
portions of The Nation's piece that, although copied verbatim from
Ford's manuscript, were quotes attributed by Ford to third persons
and quotations from Government documents. At oral argument, counsel
for The Nation did not dispute that verbatim quotes and very close
paraphrase could constitute infringement. Tr. of Oral Arg. 24-25.
Thus, the Appendix identifies as potentially infringing only
verbatim quotes or very close paraphrase, and excludes from
consideration Government documents and words attributed to third
persons. The Appendix is not intended to endorse any particular
rule of copyrightability, but is intended merely as an aid to
facilitate our discussion.

															[ Footnote 9 ]

															Economists who have addressed the issue believe the fair use
exception should come into play only in those situations in which
the market fails or the price the copyright holder would ask is
near zero. See, e.g., T. Brennan, Harper & Row v.
The Nation, Copyrightability and Fair Use, Dept. of Justice
Economic Policy Office Discussion Paper 13-17 (1984); Gordon, Fair
Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors, 82 Colum.L.Rev. 1600,
1615 (1982). As the facts here demonstrate, there is a fully
functioning market that encourages the creation and dissemination
of memoirs of public figures. In the economists' view, permitting
"fair use" to displace normal copyright channels disrupts the
copyright market without a commensurate public benefit.

															| 471
U.S. 539 App| APPENDIX TO OPINION OF THE COURT The portions of The Nation article which were copied verbatim
from "A Time to Heal," excepting quotes from Government documents
and quotes attributed by Ford to third persons, are identified in
boldface in the text. See ante at 471 U. S. 562 ,
n. 7. The corresponding passages in the Ford manuscript are
footnoted. THE FORD MEMOIRS BEHIND THE NIXON PARDON In his memoirs, A Time To Heal, which Harper & Row
will publish in late May or early June, former President Gerald R.
Ford says that the idea of giving a blanket pardon to Richard M.
Nixon was raised before Nixon resigned from the Presidency by Gen.
Alexander Haig, who was then the White House chief of staff.

															Ford also writes that, but for a misunderstanding, he might have
selected Ronald Reagan as his 1976 running mate, that Washington
lawyer Edward Bennett Williams, a Democrat, was his choice for head
of the Central Intelligence Agency, that Nixon was the one who
first proposed Rockefeller for Vice President, and that he
regretted his "[bb]cowardice[eb]" [ Footnote 2/1 ] in allowing Rockefeller to remove himself
from Vice Presidential contention. Ford also describes his often
prickly relations with Henry Kissinger. The Nation obtained the 655-page typescript before
publication. Advance excerpts from the book will appear in Time in mid-April and in The Reader's Digest thereafter. Although the initial print order has not been decided,
the figure is tentatively set at 50,000; it could change, depending
upon the public reaction to the serialization.

															Ford's account of the Nixon pardon contains significant new
detail on the negotiations and considerations that surrounded Page 471 U. S. 571 it. According to Ford's version, the subject was first broached
to him by General Haig on August 1, 1974, a week before Nixon
resigned. General Haig revealed that the newly transcribed White
House tapes were the equivalent of the "[bb]smoking gun[eb]"
[ Footnote 2/2 ] and that Ford should
prepare himself to become President.

															Ford was deeply hurt by Haig's revelation:

															"[bb]Over the past several months, Nixon had repeatedly assured
me that he was not involved in Watergate, that the evidence would
prove his innocence, that the matter would fade from view.[eb]
[ Footnote 2/3 ]"

															Ford had believed him, but he let Haig explain the President's
alternatives.

															He could "[bb]ride it out[eb]" [ Footnote 2/4 ] or he could resign, Haig said. He then
listed the different ways Nixon might resign, and concluded by
pointing out that [bb]Nixon could agree to leave in return for an
agreement that the new President, Ford, would pardon him.[eb]
[ Footnote 2/5 ] Although Ford said
it would be improper for him to make any recommendation, he
basically agreed with Haig's assessment and adds, "[bb]Because of
his references to the pardon authority, I did ask Haig about the
extent of a President's pardon power.[eb]" [ Footnote 2/6 ]

															"It's my understanding from a White House lawyer," Haig replied,
"that a President does have authority to grant a pardon even before
criminal action has been taken against an individual." Page 471 U. S. 572 But because Ford had neglected to tell Haig he thought the idea
of a resignation conditioned on a pardon was improper, his press
aide, Bob Hartmann, suggested that Haig might well have returned to
the White House and told President Nixon that he had mentioned the
idea and Ford seemed comfortable with it. "Silence implies
assent."

															Ford then consulted with White House special counsel James St.
Clair, who had no advice one way or the other on the matter more
than pointing out that he was not the lawyer who had given Haig the
opinion on the pardon. Ford also discussed the matter with Jack
Marsh, who felt that the mention of a pardon in this context was a
"time bomb," and with Bryce Harlow, who had served six Presidents
and who agreed that [bb]the mere mention of a pardon "could cause a
lot of trouble.[eb]" [ Footnote
2/7 ]

															As a result of these various conversations, Vice President Ford
called Haig and read him a written statement:

															"I want you to understand that I have no intention of
recommending what the President should do about resigning or not
resigning and that nothing we talked about yesterday afternoon
should be given any consideration in whatever decision the
President may wish to make."

															Despite what Haig had told him about the "smoking gun" tapes,
Ford told a Jackson, Mich., luncheon audience later in the day that
[bb]the President was not guilty of an impeachable offense. "Had I
said otherwise at that moment,"[eb] he writes, [bb]"the whole house
of cards might have collapsed."[eb] [ Footnote 2/8 ]

															In justifying the pardon, Ford goes out of his way to assure the
reader that [bb]"compassion for Nixon as an individual[eb] Page 471 U. S. 573 [bb]hadn't prompted my decision at all."[eb] [ Footnote 2/9 ] Rather, he did it because he had
[bb]"to get the monkey off my back one way or the other."[eb]
[ Footnote 2/10 ]

															The precipitating factor in his decision was a series of secret
meetings his general counsel, Phil Buchen, held with Watergate
Special Prosecutor Leon Jaworski in the Jefferson Hotel, where they
were both staying at the time. Ford attributes Jaworski with
providing some [bb]"crucial" information"[eb] [ Footnote 2/11 ] -- i.e., that Nixon was
under investigation in ten separate areas, and that [bb]the court
process could "take years."[eb] [ Footnote 2/12 ] Ford cites a memorandum from Jaworski's
assistant, Henry S. Ruth Jr., as being especially persuasive. Ruth
had written:

															"If you decide to recommend indictment I think it is fair and
proper to notify Jack Miller and the White House sufficiently in
advance so that pardon action could be taken before the
indictment."

															He went on to say: "One can make a strong argument for leniency,
and if President Ford is so inclined, I think he ought to do it
early, rather than late."

															Ford decided that court proceedings against Nixon might take six
years, that [bb]Nixon "would not spend time quietly in San
Clemente,"[eb] [ Footnote 2/13 ]
and [bb]"it would be virtually impossible for me to direct public
attention on anything else."[eb] [ Footnote 2/14 ]

															Buchen, Haig and Henry Kissinger agreed with him. Hartmann was
not so sure. Page 471 U. S. 574 Buchen wanted to condition the pardon on Nixon;s agreeing to
settle the question of who would retain custody and control over
the tapes and Presidential papers that might be relevant to various
Watergate proceedings, but Ford was reluctant to do that.

															At one point, a plan was considered whereby the Presidential
materials would be kept in a vault at a Federal facility near San
Clemente, but the vault would require two keys to open it. One
would be retained by the General Services Administration, the other
by Richard Nixon.

															The White House did, however, want Nixon to make a full
confession on the occasion of his pardon or, at a minimum, express
true contrition. Ford tells of the negotiation with Jack Miller,
Nixon's lawyer, over the wording of Nixon's statement. But as Ford
reports Miller's response, Nixon was not likely to yield. [bb]"His
few meetings with his client had shown him that the former
President's ability to discuss Watergate objectively was almost
nonexistent."[eb] [ Footnote
2/15 ]

															The statement they really wanted was never forthcoming. As soon
as Ford's emissary arrived in San Clemente, he was confronted with
an ultimatum by Ron Zeigler, Nixon's former press secretary. "Lets
get one thing straight immediately," Zeigler said. "President Nixon
is not issuing any statement whatsoever regarding Watergate,
whether Jerry Ford pardons him or not." Zeigler proposed a draft,
which was turned down on the ground that [bb]"no statement would be
better than that."[eb] [ Footnote
2/16 ] They went through three more drafts before they agreed on
the statement Nixon finally made, which stopped far short of a full
confession.

															When Ford aide Benton Becker tried to explain to Nixon that
acceptance of a pardon was an admission of guilt, he Page 471 U. S. 575 felt the President wasn't really listening. Instead, Nixon
wanted to talk about the Washington Redskins. And when Becker left,
Nixon pressed on him some cuff links and a tiepin "out of my own
jewelry box."

															Ultimately, Ford sums up the philosophy underlying his decision
as one he picked up as a student at Yale Law School many years
before. [bb]"I learned that public policy often took precedence
over a rule of law. Although I respected the tenet that no man
should be above the law, public policy demanded that I put Nixon --
and Watergate -- behind us as quickly as possible."[eb] [ Footnote 2/17 ]

															Later, when Ford learned that Nixon's phlebitis had acted up and
his health was seriously impaired, he debated whether to pay the
ailing former President a visit. [bb]"If I made the trip, it would
remind everybody of Watergate and the pardon. If I didn't, people
would say I lacked compassion."[eb] [ Footnote 2/18 ] Ford went:

															[bb]He was stretched out flat on his back. There were tubes in
his nose and mouth, and wires led from his arms, chest and legs to
machines with orange lights that blinked on and off. His face was
ashen, and I thought I had never seen anyone closer to death.[eb]
[ Footnote 2/19 ]

															The manuscript made available to The Nation includes many
references to Henry Kissinger and other personalities who played a
major role during the Ford years. Page 471 U. S. 576 On Kissinger. Immediately after being informed by Nixon
of his intention to resign, Ford returned to the Executive Office
Building and phoned Henry Kissinger to let him know how he felt.
[bb]"Henry,"[eb] he said, [bb]"I need you. The country needs you. I
want you to stay. I'll do every thing I can to work with you."[eb]
[ Footnote 2/20 ]

															"Sir,' Kissinger replied, 'it is my job to get along with you,
and not yours to get along with me."

															[bb]"We'll get along,"[eb] Ford said. [bb]"I know we'll get
along."[eb] Referring to Kissinger's joint jobs as Secretary of
State and National Security Adviser to the President, Ford said,
[bb]"I don't want to make any change. I think it's worked out well,
so let's keep it that way."[eb] [ Footnote 2/21 ]

															Later, Ford did make the change and relieved Kissinger of his
responsibilities as National Security Adviser at the same time that
he fired James Schlesinger as Secretary of Defense. Shortly
thereafter, he reports, Kissinger presented him with a "draft"
letter of resignation, which he said Ford could call upon at will
if he felt he needed it to quiet dissent from conservatives who
objected to Kissinger's role in the firing of Schlesinger. On John Connally. When Ford was informed that Nixon
wanted him to replace Agnew, he told the President he had [bb]"no
ambition to hold office after January, 1977."[eb] [ Footnote 2/22 ] Nixon replied that that was good,
since his own choice for his running mate in 1976 was John
Connally. "He'd be excellent," observed Nixon. Ford says he had "no
problem with that." Page 471 U. S. 577 On the Decision to Run Again. Ford was, he tells us, so
sincere in his intention not to run again that he thought he would
announce it and enhance his credibility in the country and the
Congress, as well as keep the promise he had made to his wife,
Betty.

															Kissinger talked him out of it.

															"You can't do that. It would be disastrous from a foreign policy
point of view. For the next two and a half years, foreign
governments would know that they were dealing with a lame-duck
President. All our initiatives would be dead in the water, and I
wouldn't be able to implement your foreign policy. It would
probably have the same consequences in dealing with the Congress on
domestic issues. You can't reassert the authority of the Presidency
if you leave yourself hanging out on a dead limb. You've got to be
an affirmative President." On David Kennerly, the White House photographer. Schlesinger was arguing with Kissinger and Ford over the
appropriate response to the seizure of the Mayaguez. At
issue was whether airstrikes against the Cambodians were desirable;
Schlesinger was opposed to bombings. Following a lull in the
conversation, Ford reports, up spoke the 30-year-old White House
photographer, David Kennerly, who had been taking pictures for the
last hour.

															"Has anyone considered," Kennerly asked, "that this might be the
act of a local Cambodian commander who has just taken it into his
own hands to stop any ship that comes by?" Nobody, apparently, had
considered it, but following several seconds of silence, Ford tells
us, the view carried the day. [bb]"Massive airstrikes would
constitute overkill,"[eb] Ford decided. [bb]"It would be far better
to have Navy jets from the Coral Sea make surgical strikes against
specific targets."[eb] [ Footnote
2/23 ] Page 471 U. S. 578 On Nixon's Character. [bb]Nixon's flaw,[eb] according
to Ford, [bb]was "pride." "A terribly proud man,"[eb] writes Ford,
[bb]"he detested weakness in other people. I'd often heard him
speak disparagingly of those whom he felt to be soft and expedient.
(Curiously, he didn't feel that the press was weak. Reporters, he
sensed, were his adversaries. He knew they didn't like him, and he
responded with reciprocal disdain.)"[eb] [ Footnote 2/24 ]

															Nixon felt disdain for the Democratic leadership of the House,
whom he also regarded as weak. According to Ford, [bb]"His pride
and personal contempt for weakness had overcome his ability to tell
the difference between right and wrong,"[eb] [ Footnote 2/25 ] all of which leads Ford to wonder
whether Nixon had known in advance about Watergate.

															On hearing Nixon's resignation speech, which Ford felt lacked an
adequate plea for forgiveness, he was persuaded that [bb]"Nixon was
out of touch with reality."[eb] [ Footnote 2/26 ]

															In February of last year, when The Washington Post obtained and printed advance excerpts from H.R. Haldeman's memoir, The Ends of Power, on the eve of its publication by Times
Books, The New York Times called The Post's feat
"a second-rate burglary." The Post disagreed, claiming that its coup represented
"first-rate enterprise" and arguing that it had burglarized
nothing, that publication of the Haldeman memoir came under the
Fair Comment doctrine long recognized by the Page 471 U. S. 579 courts, and that "There is a fundamental journalistic principle
here -- a First Amendment principle that was central to the
Pentagon Papers case."

															In the issue of The Nation dated May 5, 1979, our
special Spring Books number, we will discuss some of the ethical
problems raised by the issue of disclosure.

															[ Footnote 2/1 ]

															I was angry at myself for showing cowardice in not saying to the
ultraconservatives, "It's going to be Ford and Rockefeller,
whatever the consequences." P. 496.

															[ Footnote 2/2 ]

															[I]t contained the so-called smoking gun. P. 3.

															[ Footnote 2/3 ]

															[O]ver the past several months Nixon had repeatedly assured me
that he was not involved in Watergate, that the evidence would
prove his innocence, that the matter would fade from view. P.
7.

															[ Footnote 2/4 ]

															The first [option] was that he could try to "ride it out" by
letting impeachment take its natural course through the House and
the Senate trial, fighting against conviction all the way. P.
4.

															[ Footnote 2/5 ]

															Finally, Haig said that, according to some on Nixon's White
House staff, Nixon could agree to leave in return for an agreement
that the new President -- Gerald Ford -- would pardon him. P.
5.

															[ Footnote 2/6 ]

															Because of his references to pardon authority, I did ask Haig
about the extent of a President's pardon power. Pp. 5-6.

															[ Footnote 2/7 ]

															Only after I had finished did [Bryce Harlow] let me know in no
uncertain terms that he agreed with Bob and Jack, that the mere
mention of the pardon option could cause a lot of trouble in the
days ahead. P. 18.

															[ Footnote 2/8 ]

															During the luncheon I repeated my assertion that the President
was not guilty of an impeachable offense. Had I said otherwise at
that moment, the whole house of cards might have collapsed. P.
21.

															[ Footnote 2/9 ]

															But compassion for Nixon as an individual hadn't prompted my
decision at all. P. 266.

															[ Footnote 2/10 ]

															I had to get the monkey off my back one way or another. P.
236.

															[ Footnote 2/11 ]

															Jaworski gave Phil several crucial pieces of information. P.
246.

															[ Footnote 2/12 ]

															And if the verdict was Guilty, one had to assume that Nixon
would appeal. That process would take years. P. 248.

															[ Footnote 2/13 ]

															The entire process would no doubt require years: a minimum of
two, a maximum of six. And Nixon would not spend time quietly in
San Clemente. P. 238.

															[ Footnote 2/14 ]

															It would be virtually impossible for me to direct public
attention on anything else. P. 239.

															[ Footnote 2/15 ]

															But [Miller] wasn't optimistic about getting such a statement.
His few meetings with his client had shown him that the former
President's ability to discuss Watergate objectively was almost
nonexistent. P. 246.

															[ Footnote 2/16 ]

															When Zeigler asked Becker what he thought of it, Becker replied
that no statement would be better than that. P. 251.

															[ Footnote 2/17 ]

															Years before, at Yale Law School, I'd learned that public policy
often took precedence over a rule of law. Although I respected the
tenet that no man should be above the law, public policy demanded
that I put Nixon -- and Watergate -- behind us as quickly as
possible. P. 256.

															[ Footnote 2/18 ]

															My staff debated whether or not I ought to visit Nixon at the
Long Beach Hospital, only half an hour away. If I made the trip, it
would remind everyone of Watergate and the pardon. If I didn't,
people would say I lacked compassion. I ended their debate as soon
as I found out it had begun. Of course I would go. P. 298.

															[ Footnote 2/19 ]

															He was stretched out flat on his back. There were tubes in his
nose and mouth, and wires led from his arms, chest and legs to
machines with orange lights that blinked on and off. His face was
ashen, and I thought I had never seen anyone closer to death. P.
299.

															[ Footnote 2/20 ]

															"Henry," I said when he came on the line, "I need you. The
country needs you. I want you to stay. I'll do everything I can to
work with you." P. 46.

															[ Footnote 2/21 ]

															"We'll get along," I said. "I know we can get along." We talked
about the two hats he wore, as Secretary of State and National
Security Adviser to the President. "I don't want to make any
change," I said. "I think it's worked out well, so let's keep it
that way." P. 46.

															[ Footnote 2/22 ]

															I told him about my promise to Betty, and said that I had no
ambitions to hold office after January 1977. P. 155.

															[ Footnote 2/23 ]

															Subjectively, I felt that what Kennerly had said made a lot of
sense. Massive airstrikes would constitute overkill. It would be
far better to have Navy jets from the Coral Sea make
surgical strikes against specific targets in the vicinity of
Kompong Som. P. 416.

															[ Footnote 2/24 ]

															In Nixon's case, that flaw was pride. A terribly proud man, he
detested weakness in other people. I'd often heard him speak
disparagingly of those whom he felt to be soft and expedient.
(Curiously, he didn't feel that the press was weak. Reporters, he
sensed, were his adversaries. He knew they didn't like him, and he
responded with reciprocal disdain.). P. 53.

															[ Footnote 2/25 ]

															His pride and personal contempt for weakness had overcome his
ability to tell the difference between right and wrong. P. 54.

															[ Footnote 2/26 ]

															The speech lasted fifteen minutes, and at the end I was
convinced Nixon was out of touch with reality. P. 57.

															JUSTICE BRENNAN, with whom JUSTICE WHITE and JUSTICE MARSHALL
join, dissenting.

															The Court holds that The Nation's quotation of 300 words from
the unpublished 200,000-word manuscript of President Gerald R. Ford
infringed the copyright in that manuscript, even though the
quotations related to a historical event of undoubted significance
-- the resignation and pardon of President Richard M. Nixon.
Although the Court pursues the laudable goal of protecting "the
economic incentive to create and disseminate ideas," ante at 471 U. S. 558 ,
this zealous defense of the copyright owner's prerogative will, I
fear, stifle the broad dissemination of ideas and information
copyright is intended to nurture. Protection of the copyright
owner's economic interest is achieved in this case through an
exceedingly narrow definition of the scope of fair use. The
progress of arts and sciences and the robust public debate
essential to an enlightened citizenry are ill-served by this
constricted reading of the fair use doctrine. See 17
U.S.C. § 107. I therefore respectfully dissent. I A This case presents two issues. First, did The Nation's use of
material from the Ford manuscript in forms other than direct
quotation from that manuscript infringe Harper & Row's
copyright. Second, did the quotation of approximately 300 words
from the manuscript infringe the copyright because this quotation
did not constitute "fair use" within the meaning Page 471 U. S. 580 of § 107 of the Copyright Act. 17 U.S.C. § 107. The Court finds
no need to resolve the threshold copyrightability issue. The use of
300 words of quotation was, the Court finds, beyond the scope of
fair use, and thus a copyright infringement. [ Footnote 3/1 ] Because I disagree with the Court's fair
use holding, it is necessary for me to decide the threshold
copyrightability question. B "The enactment of copyright legislation by Congress under the
terms of the Constitution is not based upon any natural right that
the author has in his writings . . . , but upon the ground that the
welfare of the public will be served and progress of science and
useful arts will be promoted by securing to authors for limited
periods the exclusive rights to their writings."

															H.R.Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909). Congress thus
seeks to define the rights included in copyright so as to serve the
public welfare, and not necessarily so as to maximize an author's
control over his or her product. The challenge of copyright is to
strike the

															"difficult balance between the interests of authors and
inventors in the control and exploitation of their writings and
discoveries, on the one hand, and society's competing interest in
the free flow of ideas, information, and commerce, on the other
hand." Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 , 464 U. S. 429 (1984).

															The "originality" requirement now embodied in § 102 of the
Copyright Act is crucial to maintenance of the appropriate balance
between these competing interests. [ Footnote 3/2 ] Properly interpreted Page 471 U. S. 581 in the light of the legislative history, this section extends
copyright protection to an author's literary form, but permits free
use by others of the ideas and information the author communicates. See S.Rep. No. 93-983, pp. 107-108 (1974) ("Copyright does
not preclude others from using the ideas or information revealed by
the author's work. It pertains to the literary . . . form in which
the author expressed intellectual concepts"); H.R.Rep. No. 94-1476,
pp. 56-57 (1976) (same); New York Times Co. v. United
States, 403 U. S. 713 , 403 U. S. 726 ,
n. (1971) (BRENNAN, J., concurring) ("[T]he copyright laws, of
course, protect only the form of expression, and not the ideas
expressed"). This limitation of protection to literary form
precludes any claim of copyright in facts, including historical
narration.

															"It is not to be supposed that the framers of the Constitution,
when they empowered Congress"

															"to promote the progress of science and useful arts, by securing
for limited times to authors and inventors the exclusive right to
their respective writings and discoveries"

															"(Const., Art I, § 8, par. 8), intended to confer upon one who
might happen to be the first to report a historic event the
exclusive right for any period to spread the knowledge of it." International News Service v. Associated Press, 248 U. S. 215 , 248 U. S. 234 (1918). Accord, Rosemont Enterprises, Inc. v. Random House,
Inc., 366 F.2d 303, 309 (CA2 1966), cert. denied, 385
U.S. 1009 (1967). See 1 Nimmer § 2.11[A], at 2-158.
[ Footnote 3/3 ] Page 471 U. S. 582 The "promotion of science and the useful arts" requires this
limit on the scope of an author's control. Were an author able to
prevent subsequent authors from using concepts, ideas, or facts
contained in his or her work, the creative process would wither and
scholars would be forced into unproductive replication of the
research of their predecessors. See Hoehling v. Universal City
Studios, Inc., 618 F.2d 972, 979 (CA2 1980). This limitation
on copyright also ensures consonance with our most important First
Amendment values. Cf. Zacchini v. Scripps-Howard Broadcasting
Co., 433 U. S. 562 , 433 U. S. 577 ,
n. 13 (1977). Our "profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and
wide-open," New York Times Co. v. Sullivan, 376 U.
S. 254 , 376 U. S. 270 (1964), leaves no room for a statutory monopoly over information
and ideas.

															"The arena of public debate would be quiet, indeed, if a
politician could copyright his speeches or a philosopher his
treatises, and thus obtain a monopoly on the ideas they
contained." Lee v. Runge, 404 U. S. 887 , 893
(1971) (Douglas, J., dissenting from denial of certiorari). A broad
dissemination of principles, ideas, and factual information is
crucial to the robust public debate and informed citizenry that are
"the essence of self-government." Garrison v. Louisiana, 379 U. S. 64 , 379 U. S. 74 -75
(1964). And every citizen must be permitted freely to marshal ideas
and facts in the advocacy of particular political choices.
[ Footnote 3/4 ]

															It follows that infringement of copyright must be based on a
taking of literary form, as opposed to the ideas or information
contained in a copyrighted work. Deciding whether an infringing
appropriation of literary form has occurred is difficult for at
least two reasons. First, the distinction between Page 471 U. S. 583 literary form and information or ideas is often elusive in
practice. Second, infringement must be based on a substantial
appropriation of literary form. This determination is equally
challenging. Not surprisingly, the test for infringement has defied
precise formulation. [ Footnote 3/5 ]
In general, though, the inquiry proceeds along two axes: how
closely has the second author tracked the first author's
particular language and structure of presentation; and how
much of the first author's language and structure has the
second author appropriated. [ Footnote
3/6 ]

															In the present case the infringement analysis must be applied to
a historical biography in which the author has chronicled the
events of his White House tenure and commented on those events from
his unique perspective. Apart from the quotations, virtually all of
the material in The Nation's article indirectly recounted Mr.
Ford's factual narrative of the Nixon resignation and pardon, his
latter-day reflections on some events of his Presidency, and his
perceptions of the personalities at the center of those events. See ante at 471 U. S.
570 -579. No copyright can be claimed in this information qua information. Infringement would thus have to be
based Page 471 U. S. 584 on too close and substantial a tracking of Mr. Ford's expression
of this information. [ Footnote
3/7 ] The Language. Much of the information The Nation
conveyed was not in the form of paraphrase at all, but took the
form of synopsis of lengthy discussions in the Ford manuscript.
[ Footnote 3/8 ] In the course of
this summary presentation, The Page 471 U. S. 585 Nation did use occasional sentences that closely resembled
language in the original Ford manuscript. [ Footnote 3/9 ] But these linguistic similarities are
insufficient to constitute an infringement for three reasons.
First, some leeway must be given to subsequent authors seeking to
convey facts because those "wishing to express the ideas contained
in a factual work Page 471 U. S. 586 often can choose from only a narrow range of expression." Landsbeg v. Scrabble Crossword Game Players, Inc., 736
F.2d 485, 488 (CA9 1984). Second, much of what The Nation
paraphrased was material in which Harper & Row could claim no
copyright. [ Footnote 3/10 ] Third,
The Nation paraphrased nothing approximating the totality of a
single paragraph, much less a chapter or the work as a whole. At
most, The Nation paraphrased disparate isolated sentences from the
original. A finding of infringement based on paraphrase generally
requires far more close and substantial a tracking of the original
language than occurred in this case. See, e.g., Wainwright
Securities Inc. v. Wall Street Transcript Corp., 558 F.2d 91
(CA2 1977). The Structure of Presentation. The article does not
mimic Mr. Ford's structure. The information The Nation presents is
drawn from scattered sections of the Ford work, and does not appear
in the sequence in which Mr. Ford presented it. [ Footnote 3/11 ] Some of The Nation's discussion of
the pardon does roughly track the order in which the Ford
manuscript presents information about the pardon. With respect to
this similarity, however, Mr. Ford has done no more than present
the facts Page 471 U. S. 587 chronologically and cannot claim infringement when a subsequent
author similarly presents the facts of history in a chronological
manner. Also, it is difficult to suggest that a 2,000-word article
could bodily appropriate the structure of a 200,000-word book. Most
of what Mr. Ford created, and most of the history he recounted,
were simply not represented in The Nation's article. [ Footnote 3/12 ]

															When The Nation was not quoting Mr. Ford, therefore, its efforts
to convey the historical information in the Ford manuscript did not
so closely and substantially track Mr. Ford's language and
structure as to constitute an appropriation of literary form. II The Nation is thus liable in copyright only if the quotation of
300 words infringed any of Harper & Row's exclusive rights
under § 106 of the Act. Section 106 explicitly makes the grant of
exclusive rights "[s]ubject to section 107 through 118." 17 U.S.C.
§ 106. Section 107 states:

															"Notwithstanding the provisions of section 106, the fair use of
a copyrighted work . . . for purposes such as criticism, comment,
news reporting, teaching (including multiple copies for classroom
use), scholarship or research, is not an infringement of
copyright."

															The question here is whether The Nation's Page 471 U. S. 588 quotation was a noninfringing fair use within the meaning of §
107.

															Congress "eschewed a rigid, bright-line approach to fair use." Sony Corp. of America v. Universal City Studios, Inc., 464
U.S. at 464 U. S. 449 ,
n. 31. A court is to apply an "equitable rule of reason" analysis, id. at 464 U. S. 448 ,
guided by four statutorily prescribed factors:

															"(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit educational
purposes;"

															"(2) the nature of the copyrighted work;"

															"(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and"

															"(4) the effect of the use upon the potential market for or
value of the copyrighted work."

															17 U.S.C. § 107. These factors are not necessarily the exclusive
determinants of the fair use inquiry, and do not mechanistically
resolve fair use issues; "no generally applicable definition is
possible, and each case raising the question must be decided on its
own facts." H.R.Rep. No. 94-1476, at 65. See also id. at
66 ("[T]he endless variety of situations and combinations of
circumstances that can arise in particular cases precludes the
formulation of exact rules in the statute"); S.Rep. No. 94-473, p.
62 (1975). The statutory factors do, however, provide substantial
guidance to courts undertaking the proper fact-specific
inquiry.

															With respect to a work of history, particularly the memoirs of a
public official, the statutorily prescribed analysis cannot
properly be conducted without constant attention to copyright's
crucial distinction between protected literary form and unprotected
information or ideas. The question must always be: was the
subsequent author's use of literary form a fair use within the
meaning of § 107, in light of the purpose for the use, the nature
of the copyrighted work, the amount of literary form used,
and the effect of this use of literary form on the value of or
market for the original? Page 471 U. S. 589 Limiting the inquiry to the propriety of a subsequent author's
use of the copyright owner's literary form is not easy in the case
of a work of history. Protection against only substantial
appropriation of literary form does not ensure historians a return
commensurate with the full value of their labors. The literary form
contained in works like "A Time to Heal" reflects only a part of
the labor that goes into the book. It is the labor of collecting,
sifting, organizing, and reflecting that predominates in the
creation of works of history such as this one. The value this labor
produces lies primarily in the information and ideas revealed, and
not in the particular collocation of words through which the
information and ideas are expressed. Copyright thus does not
protect that which is often of most value in a work of history, and
courts must resist the tendency to reject the fair use defense on
the basis of their feeling that an author of history has been
deprived of the full value of his or her labor. A subsequent
author's taking of information and ideas is in no sense piratical,
because copyright law simply does not create any property interest
in information and ideas.

															The urge to compensate for subsequent use of information and
ideas is perhaps understandable. An inequity seems to lurk in the
idea that much of the fruit of the historian's labor may be used
without compensation. This, however, is not some unforeseen
byproduct of a statutory scheme intended primarily to ensure a
return for works of the imagination. Congress made the affirmative
choice that the copyright laws should apply in this way:

															"Copyright does not preclude others from using the ideas or
information revealed by the author's work. It pertains to the
literary . . . form in which the author expressed intellectual
concepts."

															H.R.Rep. No. 94-1476, at 56-57. This distinction is at the
essence of copyright. The copyright laws serve as the "engine of
free expression," ante at 471 U. S. 558 ,
only when the statutory monopoly does not choke off multifarious
indirect uses and consequent broad dissemination of information and
ideas. To ensure the progress of arts and sciences and the
integrity Page 471 U. S. 590 of First Amendment values, ideas and information must not be
freighted with claims of proprietary right. [ Footnote 3/13 ]

															In my judgment, the Court's fair use analysis has fallen to the
temptation to find copyright violation based on a minimal use of
literary form in order to provide compensation for the
appropriation of information from a work of history. The failure to
distinguish between information and literary form permeates every
aspect of the Court's fair use analysis, and leads the Court to the
wrong result in this case. Application of the statutorily
prescribed analysis with attention to the distinction between
information and literary form leads to a straightforward finding of
fair use within the meaning of § 107. The Purpose of the Use. The Nation's purpose in quoting
300 words of the Ford manuscript was, as the Court acknowledges,
news reporting. See ante at 471 U. S. 561 .
The Ford work contained information about important events of
recent history. Two principals, Mr. Ford and General Alexander
Haig, were, at the time of The Nation's publication in 1979, widely
thought to be candidates for the Presidency. That The Nation
objectively reported the information in the Ford manuscript without
independent commentary in no way diminishes the conclusion that it
was reporting news. A typical news story differs from an editorial
precisely in that it presents newsworthy information in a
straightforward and unelaborated manner. Nor does the source of the
information render The Nation's article any less a news report.
Often books and manuscripts, solicited and unsolicited, are Page 471 U. S. 591 the subject matter of news reports. E.g., New York Time Co.
v. United States, 403 U. S. 713 (1971). Frequently, the manuscripts are unpublished at the time of
the news report. [ Footnote
3/14 ]

															Section 107 lists news reporting as a prime example of fair use
of another's expression. Like criticism and all other purposes
Congress explicitly approved in § 107, news reporting informs the
public; the language of § 107 makes clear that Congress saw the
spread of knowledge and information as the strongest justification
for a properly limited appropriation of expression. The Court of
Appeals was therefore correct to conclude that the purpose of The
Nation's use -- dissemination of the information contained in the
quotations of Mr. Ford's work -- furthered the public interest. 723
F.2d 195, 207-208 (CA2 1983). In light of the explicit
congressional endorsement in § 107, the purpose for which Ford's
literary form was borrowed strongly favors a finding of fair
use.

															The Court concedes the validity of the news reporting purpose,
[ Footnote 3/15 ] but then quickly
offsets it against three purportedly countervailing considerations.
First, the Court asserts that, because The Nation publishes for
profit, its publication of Page 471 U. S. 592 the Ford quotes is a presumptively unfair commercial use.
Second, the Court claims that The Nation's stated desire to create
a "news event" signaled an illegitimate purpose of supplanting the
copyright owner's right of first publication. Ante at 471 U. S.
562 -563. Third, The Nation acted in bad faith, the Court
claims, because its editor "knowingly exploited a purloined
manuscript." Ante at 471 U. S.
563 .

															The Court's reliance on the commercial nature of The Nation's
use as "a separate factor that tends to weigh against a finding of
fair use," ante at 471 U. S. 562 ,
is inappropriate in the present context. Many uses § 107 lists as
paradigmatic examples of fair use, including criticism, comment,
and news reporting, are generally conducted for profit in
this country, a fact of which Congress was obviously aware when it
enacted § 107. To negate any argument favoring fair use based on
news reporting or criticism because that reporting or criticism was
published for profit is to render meaningless the congressional
imprimatur placed on such uses. [ Footnote 3/16 ]

															Nor should The Nation's intent to create a "news event" weigh
against a finding of fair use. Such a rule, like the Page 471 U. S. 593 Court's automatic presumption against news reporting for profit,
would undermine the congressional validation of the news reporting
purpose. A news business earns its reputation, and therefore its
readership, through consistent prompt publication of news -- and
often through "scooping" rivals. More importantly, the Court's
failure to maintain the distinction between information and
literary form colors the analysis of this point. Because Harper
& Row had no legitimate copyright interest in the information
and ideas in the Ford manuscript, The Nation had every right to
seek to be the first to disclose these facts and ideas to the
public. The record suggests only that The Nation sought to be the
first to reveal the information in the Ford manuscript. The
Nation's stated purpose of scooping the competition should, under
those circumstances, have no negative bearing on the claim of fair
use. 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.

															The Court's reliance on The Nation's putative bad faith is
equally unwarranted. No court has found that The Nation possessed
the Ford manuscript illegally or in violation of any common law
interest of Harper & Row; all common law causes of action have
been abandoned or dismissed in this case. 723 F.2d at 199-201. Even
if the manuscript had been "purloined" by someone, nothing in this
record imputes culpability to The Nation. [ Footnote 3/17 ] On the basis of the record in this case,
the most that can be said is that The Nation made use of the
contents of the manuscript knowing the copyright owner would not
sanction the use. Page 471 U. S. 594 At several points the Court brands this conduct thievery. See, e.g., ante at 471 U. S. 556 , 471 U. S. 563 .
This judgment is unsupportable, and is perhaps influenced by the
Court's unspoken tendency in this case to find infringement based
on the taking of information and ideas. With respect to the
appropriation of information and ideas other than the quoted words,
The Nation's use was perfectly legitimate, despite the copyright
owner's objection, because no copyright can be claimed in ideas or
information. Whether the quotation of 300 words was an infringement
or a fair use within the meaning of § 107 is a close question that
has produced sharp division in both this Court and the Court of
Appeals. If the Copyright Act were held not to prohibit the use,
then the copyright owner would have had no basis in law for
objecting. The Nation's awareness of an objection that has a
significant chance of being adjudged unfounded cannot amount to bad
faith. Imputing bad faith on the basis of no more than knowledge of
such an objection, the Court impermissibly prejudices the inquiry
and impedes arrival at the proper conclusion that the "purpose"
factor of the statutorily prescribed analysis strongly favors a
finding of fair use in this case. The Nature of the Copyrighted Work. In Sony Corp.
of America v. Universal City Studios, Inc., we stated that
"not . . . all copyrights are fungible" and that "[c]opying a news
broadcast may have a stronger claim to fair use than copying a
motion picture." 464 U.S. at 464 U. S. 455 ,
n. 40. These statements reflect the principle, suggested in §
107(2) of the Act, that the scope of fair use is generally broader
when the source of borrowed expression is a factual or historical
work. See 3 Nimmer § 13.05[A][2], at 13-73 - 13-74.
"[I]nformational works," like the Ford manuscript, "that readily
lend themselves to productive use by others, are less protected." Sony Corp. of America v. Universal City Studios, Inc., 464
U.S. at 464 U. S.
496 -497 (BLACKMUN, J., dissenting). Thus the second
statutory factor also favors a finding of fair use in this
case. Page 471 U. S. 595 The Court acknowledges that "[t]he law generally recognizes a
greater need to disseminate factual works than works of fiction or
fantasy," ante at 471 U. S. 563 , and that "[s]ome of the briefer
quotations from the memoir are arguably necessary to convey the
facts," ibid. But the Court discounts the force of this
consideration, primarily on the ground that "[t]he fact that a work
is unpublished is a crucial element of its nature.'" Ante at 471 U. S. 564 .
[ Footnote 3/18 ] At this point,
the Court introduces into analysis of this case a categorical
presumption against prepublication fair use. See ante at 471 U. S. 555 ("Under ordinary circumstances, the author's right to control the
first public appearance of his undisseminated expression will
outweigh a claim of fair use"). This categorical presumption is unwarranted on its own terms and
unfaithful to congressional intent. [ Footnote 3/19 ] Whether a Page 471 U. S. 596 particular prepublication use will impair any interest the Court
identifies as encompassed within the right of first publication, see ante at 471 U. S.
552 -555, [ Footnote
3/20 ] will depend on the nature of the copyrighted work, the
timing of prepublication use, the amount of expression used, and
the medium in which the second author communicates. Also, certain
uses might be tolerable for some purposes but not for others. See Sony Corp. of America v. Universal City Studios, Inc.,
supra, at 464 U. S. 490 ,
n. 40. The Court is ambiguous as to whether it relies on the force
of the presumption against prepublication fair use or an analysis
of the purpose and effect of this particular use. Compare
ante at 471 U. S.
552 -555, with ante at 471 U. S. 564 .
To the extent the Court relies on the presumption, it presumes
intolerable Page 471 U. S. 597 injury -- in particular the usurpation of the economic interest
[ Footnote 3/21 ] -- based on no
more than a quick litmus test for prepublication timing. Because
"Congress has plainly instructed us that fair use analysis calls
for a sensitive balancing of interests," we held last Term that the
fair use inquiry could never be resolved on the basis of such a
"two-dimensional" categorical approach. See Sony Corp. of
America v. Universal City Studios, Inc., 464 U.S. at 464 U. S. 455 ,
n. 40 (rejecting categorical requirement of "productive use").

															To the extent the Court purports to evaluate the facts of this
case, its analysis relies on sheer speculation. The quotation of
300 words from the manuscript infringed no privacy interest of Mr.
Ford. This author intended the words in the manuscript to be a
public statement about his Presidency. Lacking, therefore, is the
"deliberate choice on the part of the copyright owner" to keep
expression confidential, a consideration that the Senate Report --
in the passage on which the Court places great reliance, see
ante at 553 --recognized as the impetus behind narrowing fair
use for unpublished works. See S.Rep. No. 94-473, at 64. See also 3 Nimmer § 13.05[A], at 13-73 ("[T]he scope of
the fair use doctrine is considerably narrower with respect to
unpublished works which are held confidential by their
copyright owners ") (emphasis added). What the Court depicts as
the copyright owner's "confidentiality" interest, see ante at 471 U. S. 564 ,
is not a privacy interest at all. Rather, it is no more than an
economic interest in capturing the full value of initial release of
information to Page 471 U. S. 598 the public, and is properly analyzed as such. See infra at 471 U. S.
602 -603. Lacking too is any suggestion that The Nation's
use interfered with the copyright owner's interest in editorial
control of the manuscript. The Nation made use of the Ford quotes
on the eve of official publication.

															Thus, the only interest The Nation's prepublication use might
have infringed is the copyright owner's interest in capturing the
full economic value of initial release. By considering this
interest as a component of the "nature" of the copyrighted work,
the Court's analysis deflates The Nation's claim that the
informational nature of the work supports fair use without any
inquiry into the actual or potential economic harm of The Nation's
particular prepublication use. For this reason, the question of
economic harm is properly considered under the fourth statutory
factor -- the effect on the value of or market for the copyrighted
work, 17 U.S.C. § 107(4) -- and not as a presumed element of the
"nature" of the copyright. The Amount and Substantiality of the Portion Used. More
difficult questions arise with respect to judgments about the
importance to this case of the amount and substantiality of the
quotations used. The Nation quoted only approximately 300 words
from a manuscript of more than 200,000 words, and the quotes are
drawn from isolated passages in disparate sections of the work. The
judgment that this taking was quantitatively "infinitesimal," 723
F.2d at 209, does not dispose of the inquiry, however. An
evaluation of substantiality in qualitative terms is also required.
Much of the quoted material was Mr. Ford's matter-of-fact
representation of the words of others in conversations with him;
such quotations are "arguably necessary adequately to convey the
facts," ante at 471 U. S. 563 ,
and are not rich in expressive content. Beyond these quotations, a
portion of the quoted material was drawn from the most poignant
expression in the Ford manuscript; in particular The Nation made
use of six examples of Mr. Ford's expression of his reflections
on Page 471 U. S. 599 events or perceptions about President Nixon. [ Footnote 3/22 ] The fair use inquiry turns on the
propriety of the use of these quotations with admittedly strong
expressive content.

															The Court holds that, "in view of the expressive value of the
excerpts and their key role in the infringing work," this third
statutory factor disfavors a finding of fair use. [ Footnote 3/23 ] To support Page 471 U. S. 600 this conclusion, the Court purports to rely on the District
Court factual findings that The Nation had taken "the heart of the
book." 557 F. Supp. 1062, 1072 (SDNY 1983). This reliance is
misplaced, and would appear to be another result of the Court's
failure to distinguish between information and literary form. When
the District Court made this finding, it was evaluating not the
quoted words at issue here, but the "totality" of the information
and reflective commentary in the Ford work. Ibid. The vast
majority of what the District Court considered the heart of the
Ford work, therefore, consisted of ideas and information The Nation
was free to use. It may well be that, as a qualitative matter, most
of the value of the manuscript did lie in the information and ideas
The Nation used. But appropriation of the "heart" of the manuscript
in this sense is irrelevant to copyright analysis because copyright
does not preclude a second author's use of information and
ideas.

															Perhaps tacitly recognizing that reliance on the District Court
finding is unjustifiable, the Court goes on to evaluate
independently the quality of the expression appearing in The
Nation's article. The Court states that "[t]he portions actually
quoted were selected by Mr. Navasky as among the most powerful
passages." Ante at 471 U. S. 565 .
On the basis of no more than this observation, and perhaps also
inference from the fact that the quotes were important to The
Nation's article, [ Footnote 3/24 ]
the Court adheres to its conclusion that The Nation appropriated
the heart of the Ford manuscript. Page 471 U. S. 601 At least with respect to the six particular quotes of Mr. Ford's
observations and reflections about President Nixon, I agree with
the Court's conclusion that The Nation appropriated some literary
form of substantial quality. I do not agree, however, that the
substantiality of the expression taken was clearly excessive or
inappropriate to The Nation's news reporting purpose.

															Had these quotations been used in the context of a critical book
review of the Ford work, there is little question that such a use
would be fair use within the meaning of § 107 of the Act. The
amount and substantiality of the use -- in both quantitative and
qualitative terms -- would have certainly been appropriate to the
purpose of such a use. It is difficult to see how the use of these
quoted words in a news report is less appropriate. The Court
acknowledges as much:

															"[E]ven substantial quotations might qualify as a fair use in a
review of a published work or a news account of a speech that had
been delivered to the public." See ante at 471 U. S. 564 .
With respect to the motivation for the pardon and the insights into
the psyche of the fallen President, for example, Mr. Ford's
reflections and perceptions are so laden with emotion and deeply
personal value judgments that full understanding is immeasurably
enhanced by reproducing a limited portion of Mr. Ford's own words.
The importance of the work, after all, lies not only in revelation
of previously unknown fact, but also in revelation of the thoughts,
ideas, motivations, and fears of two Presidents at a critical
moment in our national history. Thus, while the question is not
easily resolved, it is difficult to say that the use of the six
quotations was gratuitous in relation to the news reporting
purpose.

															Conceding that even substantial quotation is appropriate in a
news report of a published work, the Court would seem to
agree that this quotation was not clearly inappropriate in relation
to The Nation's news reporting purpose. For the Court, the
determinative factor is again that the substantiality of the use
was inappropriate in relation to the prepublication Page 471 U. S. 602 timing of that use. That is really an objection to the effect of
this use on the market for the copyrighted work, and is properly
evaluated as such. The Effect on the Market. The Court correctly notes
that the effect on the market "is undoubtedly the single most
important element of fair use." Ante at 471 U. S. 566 ,
citing 3 Nimmer § 13.05[A], at 13-76, and the Court properly
focuses on whether The Nation's use adversely affected Harper &
Row's serialization potential and not merely the market for sales
of the Ford work itself. Ante at 471 U. S.
566 -567. Unfortunately, the Court's failure to
distinguish between the use of information and the appropriation of
literary form badly skews its analysis of this factor.

															For purposes of fair use analysis, the Court holds, it is
sufficient that the entire article containing the quotes
eroded the serialization market potential of Mr. Ford's work. Ante at 471 U. S. 567 .
On the basis of Time's cancellation of its serialization agreement,
the Court finds that "[r]arely will a case of copyright
infringement present such clear-cut evidence of actual damage." Ibid. In essence, the Court finds that, by using some
quotes in a story about the Nixon pardon, The Nation "competed for
a share of the market of prepublication excerpts" ante at 471 U. S. 568 ,
because Time planned to excerpt from the chapters about the
pardon.

															The Nation's publication indisputably precipitated Time's
eventual cancellation. But that does not mean that The Nation's use
of the 300 quoted words caused this injury to Harper & Row.
Wholly apart from these quoted words, The Nation published
significant information and ideas from the Ford manuscript. If it
was this publication of information, and not the publication of the
few quotations, that caused Time to abrogate its serialization
agreement, then whatever the negative effect on the serialization
market, that effect was the product of wholly legitimate
activity.

															The Court of Appeals specifically held that "the evidence does
not support a finding that it was the very limited use of
expression per se which led to Time's decision not to
print excerpts." Page 471 U. S. 603 723 F.2d at 208. I fully agree with this holding. If The Nation
competed with Time, the competition was not for a share of the
market in excerpts of literary form, but for a share of the market
in the new information in the Ford work. That the information, and
not the literary form, represents most of the real value of the
work in this case is perhaps best revealed by the following
provision in the contract between Harper & Row and Mr.
Ford:

															"Author acknowledges that the value of the rights granted to
publisher hereunder would be substantially diminished by Author's
public discussion of the unique information not previously
disclosed about Author's career and personal life which will be
included in the Work, and Author agrees that Author will endeavor
not to disseminate any such information in any media, including
television, radio and newspaper and magazine interviews prior to
the first publication of the work hereunder."

															App. 484. The contract thus makes clear that Harper & Row
sought to benefit substantially from monopolizing the initial
revelation of information known only to Ford.

															Because The Nation was the first to convey the information in
this case, it did perhaps take from Harper & Row some of the
value that publisher sought to garner for itself through the
contractual arrangement with Ford and the license to Time. Harper
& Row had every right to seek to monopolize revenue from that
potential market through contractual arrangements, but it has no
right to set up copyright as a shield from competition in that
market, because copyright does not protect information. The Nation
had every right to seek to be the first to publish that
information. [ Footnote 3/25 ] Page 471 U. S. 604 Balancing the Interests. Once the distinction between
information and literary form is made clear, the statutorily
prescribed process of weighing the four statutory fair use factors
discussed above leads naturally to a conclusion that The Nation's
limited use of literary form was not an infringement. Both the
purpose of the use and the nature of the copyrighted work strongly
favor the fair use defense here. The Nation appropriated Mr. Ford's
expression for a purpose Congress expressly authorized in § 107 and
borrowed from a work whose nature justifies some appropriation to
facilitate the spread of information. The factor that is perhaps
least favorable to the claim of fair use is the amount and
substantiality of the expression used. Without question, a portion
of the expression appropriated was among the most poignant in the
Ford manuscript. But it is difficult to conclude that this taking
was excessive in relation to the news reporting purpose. In any
event, because the appropriation of literary form -- as opposed to
the use of information -- was not shown to injure Harper &
Row's economic interest, any uncertainty with respect to the
propriety of the amount of expression borrowed should be resolved
in favor of a finding of fair use. [ Footnote 3/26 ] In light of the circumscribed scope of
the quotation in The Nation's article and the undoubted validity of
the purpose Page 471 U. S. 605 motivating that quotation, I must conclude that the Court has
simply adopted an exceedingly narrow view of fair use in order to
impose liability for what was in essence a taking of unprotected
information. III The Court's exceedingly narrow approach to fair use permits
Harper & Row to monopolize information. This holding "effect[s]
an important extension of property rights and a corresponding
curtailment in the free use of knowledge and of ideas." International News Service v. Associated Press, 248 U.S.
at 248 U. S. 263 (Brandeis, J., dissenting). The Court has perhaps advanced the
ability of the historian -- or at least the public official who has
recently left office -- to capture the full economic value of
information in his or her possession. But the Court does so only by
risking the robust debate of public issues that is the "essence of
self-government." Garrison v. Louisiana, 379 U.S. at 379 U. S. 74 -75.
The Nation was providing the grist for that robust debate. The
Court imposes liability upon The Nation for no other reason than
that The Nation succeeded in being the first to provide certain
information to the public. I dissent.

															[ Footnote 3/1 ]

															In bypassing the threshold issue, the Court certainly does not
intimate that The Nation's use of ideas and information other than
the quoted material would constitute a violation of the copyright
laws. At one point in its opinion, the Court correctly states the
governing principles with respect to the copyrightability question. See ante at 471 U. S. 556 ("No author may copyright his ideas or the facts he narrates").

															[ Footnote 3/2 ]

															Section 102(b) states:

															"In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method
of operation, concept, principle, or discovery, regardless of the
form in which it is described, explained, illustrated, or embodied
in such work."

															17 U.S.C. § 102(b). The doctrines of fair use, see 17
U.S.C. § 107, and substantial similarity, see 3 M. Nimmer,
Copyright § 13.05 (1984) (hereinafter Nimmer), also function to
accommodate these competing considerations. See generally Gorman, Fact or Fancy? The Implications for Copyright, 29 J.
Copyright Soc. 560 (1982).

															[ Footnote 3/3 ]

															By the same token, an author may not claim copyright in
statements made by others and reported verbatim in the author's
work. See Suid v. Newsweek Magazine, 503 F.
Supp. 146 , 148 (DC 1980); Rokeach v. Avco Embassy Pictures
Corp., 197 USPQ 155, 161 (SDNY 1978).

															[ Footnote 3/4 ]

															It would be perverse to prohibit government from limiting the
financial resources upon which a political speaker may draw, see FEC v. National Conservative Political Action
Committee, 470 U. S. 480 (1985), but to permit government to limit the intellectual
resources upon which that speaker may draw.

															[ Footnote 3/5 ]

															The protection of literary form must proscribe more than merely
word-for-word appropriation of substantial portions of an author's
work. Otherwise, a plagiarist could avoid infringement by
immaterial variations. Nichols v. Universal Pictures
Corp., 45 F.2d 119, 121 (CA2 1930). The step beyond the narrow
and clear prohibition of wholesale copying is, however, a venture
onto somewhat uncertain terrain. Compare Hoehling v. Universal
City Studios, Inc., 618 F.2d 972, 974 (CA2 1980), with
Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (CA2 1977). See also 1 Nimmer § 1.10B, at 1-73
- 1-74 ("It is the particular selection and arrangement of ideas,
as well as a given specificity in the form of their expression,
which warrants protection"); Chafee, Reflections on the Law of
Copyright: I, 45 Colum.L.Rev. 503, 513 (1945) ("[T]he line . . .
lie[s] somewhere between the author's idea and the precise form in
which he wrote it down. . . . [T]he protection covers the pattern' of the work"); Gorman, supra, at 593 ("too
literal and substantial copying and paraphrasing of . . .
language"). [ Footnote 3/6 ]

															The inquiry into the substantiality of appropriation has a
quantitative and a qualitative aspect.

															[ Footnote 3/7 ]

															Neither the District Court nor the dissent in the Court of
Appeals approached the question in this way. Despite recognizing
that this material was not " per se copyrightable," the
District Court held that the "totality of these facts and memoranda
collected together with Mr. Ford's reflections . . . is protected
by the copyright laws." 557 F.
Supp. 1067 , 1072-1073 (SDNY 1983). The dissent in the Court of
Appeals signaled approval of this approach. 723 F.2d 195, 213-214
(CA2 1983) (Meskill, J., dissenting). Such an approach must be
rejected. Copyright protection cannot be extended to factual
information whenever that information is interwoven with protected
expression (purportedly in this case Mr. Ford's reflections) into
an expressive "totality." Most works of history or biography blend
factual narrative and reflective or speculative commentary in this
way. Precluding subsequent use of facts so presented cannot be
squared with the specific legislative intent, expressed in both
House and Senate Reports, that "[c]opyright does not preclude
others from using the . . . information revealed by the author's
work." See S.Rep. No. 93-983, pp. 107-108 (1974); H.R.Rep.
No. 94-1476, pp. 56-57 (1976). The core purposes of copyright would
be thwarted and serious First Amendment concerns would arise. An
author could obtain a monopoly on narration of historical events
simply by being the first to discuss them in a reflective or
analytical manner.

															[ Footnote 3/8 ]

															For example, the Ford manuscript expends several hundred words
discussing relations between Mr. Ford and Ronald Reagan in the
weeks before the Republican Convention of 1976:

															"About a month before the convention, my aides had met with
Reagan's representatives to discuss the need for party unity. And
they had reached an agreement. At the end of the Presidential
balloting, the winner would go to the loser's hotel suite and
congratulate his opponent for waging a fine campaign. Together,
they would appear at a press conference and urge all Republicans to
put aside their differences and rally behind the ticket. That was
the only way we could leave Kansas City with a hope of victory.
When it appeared I was going to win, Sears contacted Cheney and
refined the scenario. He insisted on two conditions. The first was
that I had to see Reagan alone; there could be no aides from either
camp in the room. Secondly, under no circumstances should I offer
him the nomination to be Vice President. Reagan had said all along
that he wasn't interested in the job. He had meant what he said. If
I tried to talk him out of it, he would have to turn me down, and
that would be embarrassing, because it would appear that he was
refusing to help the GOP. When Cheney relayed those conditions to
me, I agreed to go along with them. I would need Reagan's
assistance in the fall campaign. It would be stupid to anger him or
his followers at this moment."

															"Later I was told that, just before my arrival at the
Californian's hotel, one of his closest advisors, businessman
Justin Dart, had urged him to say yes if I asked him to be my
running mate, Regardless of anything he'd said before, Dart had
insisted, it was his patriotic duty to accept the number two post.
Finally, according to Dart, Reagan had agreed. But at the time, no
one mentioned this new development to me. Had I been aware of the
Dart-Reagan conversation, would I have chosen him? I can't say for
sure -- I thought his challenge had been divisive, and that it
would probably hurt the party in the fall campaign; additionally, I
resented some of the things that he'd been saying about me and my
Administration's policies -- but I certainly would have considered
him."

															App. 628-629. The Nation encapsulated this discussion in the
following sentence: "Ford also writes that, but for a
misunderstanding, he might have selected Ronald Reagan as his 1976
running mate." Id. at 627. In most other instances, a
single sentence or brief paragraph in The Nation's article
similarly conveys the gist of a discussion in the Ford manuscript
that runs into the hundreds of words. See generally Addendum B to Defendant's Post-Trial Memorandum, id. at
627-704.

															[ Footnote 3/9 ]

															For example, at one point The Nation's article reads: "Ford told
a Jackson, Mich., luncheon audience later in the day that the
President was not guilty of an impeachable offense." Ante at 471 U. S. 572 .
The portion of the Ford manuscript discussed stated:

															"Representative Thad Cochran . . . escorted me to a luncheon at
the Jackson Hilton Hotel. During the luncheon, I repeated my
assertion that the President was not guilty of an impeachable
offense."

															App. 649. In several other places, the language in The Nation's
article parallels Mr. Ford's original expression to a similar
degree. Compare ante at 471 U. S.
570 -579, with App. 627-704.

															[ Footnote 3/10 ]

															Often the paraphrasing was of statements others had made to Mr.
Ford. E.g., ante at 471 U. S. 571 ("He could ride it out' or he could resign, Haig said"). See generally ante at 471 U. S.
570 -579. No copyright can be asserted in the verbatim
representation of such statements of others. 17 U.S.C. § 102. See Suid v. Newsweek Magazine, 503 F. Supp. at 148; Rokeach v. Avco Embassy Pictures Corp., 197 USPQ at 161.
Other paraphrased material came from Government documents in which
no copyright interest can be claimed. For example, the article
quotes from a memorandum prepared by Henry S. Ruth, Jr., in his
official capacity as assistant to Watergate Special Prosecutor Leon
Jaworski. See ante at 471 U. S. 573 .
This document is a work of the United States Government. See 17 U.S.C. § 105. [ Footnote 3/11 ]

															According to an exhibit Harper & Row introduced at trial the
pages in the Ford manuscript that correspond to consecutive
sections of the article are as follows: 607-608, 401, 44, 496, 1,
2-3, 4, 8, 7, 4-5, 5, 5-6, 8, 14, 15, 16, 16, 18, 19, 21, 266, 236,
246, 248, 249, 238-239, 239, 243, 245, 246, 250, 250-251, 251, 252,
253, 254, 256, 298, 299, 46, 494, 537, 155-156, 216, 415, 416, 416,
53-54, 57. See App. to Pet. for Cert. E-l to E-41.

															[ Footnote 3/12 ]

															In one sense, The Nation "copied" Mr. Ford's selection of facts,
because it reported on only those facts Mr. Ford chose to select
for presentation. But this tracking of a historian's selection of
facts generally should not supply the basis for a finding of
infringement. See Myers v. Mail & Express Co., 36
Copyright Off.Bull. 478 (SDNY 1919) (L. Hand, J.). To hold
otherwise would be to require a second author to duplicate the
research of the first author so as to avoid reliance on the first
author's judgment as to what facts are particularly pertinent.
" I t is just such wasted effort that the proscription against the
copyright of ideas and facts . . . are designed to prevent.'" Miller v. Universal City Studios, Inc., 650 F.2d 1365,
1371 (CA5 1981), quoting Rosemont Enterprises, Inc. v. Random
House, Inc., 366 F.2d 303, 310 (CA2 1966). See Gorman, 29 J.Copyright Soc. at 594-595.

															[ Footnote 3/13 ]

															This congressional limitation on the scope of copyright does not
threaten the production of history. That this limitation results in
significant diminution of economic incentives is far from apparent.
In any event, noneconomic incentives motivate much historical
research and writing. For example, former public officials often
have great incentive to "tell their side of the story." And much
history is the product of academic scholarship. Perhaps most
importantly, the urge to preserve the past is as old as
humankind.

															[ Footnote 3/14 ] E.g., N.Y. Times, Aug. 2, 1984, p. C20, col. 5 (article
about revelations in forthcoming biography of Cardinal Spellman);
N.Y. Times, Dec. 10, 1981, p. A18, col. 1 (article about
revelations in forthcoming book by John Erlichman); N.Y. Times,
Sept. 29, 1976, p. 1, col. 2 (article about revelations in
forthcoming autobiography of President Nixon); N.Y. Times, Mar. 27,
1976, p. 9, col. 1 (article about revelations concerning President
Nixon's resignation in forthcoming book The Final Days); N.Y.
Times, Sept. 23, 1976, p. 36, col. 1 (article about revelations
concerning President Ford in forthcoming book Blind Ambition by
John Dean).

															[ Footnote 3/15 ]

															The Court properly rejects the argument that this is not
legitimate news. Courts have no business making such evaluations of
journalistic quality. See ante at 471 U. S. 561 .
The Court also properly rejects the argument that this use is
nonproductive. See ibid. News reporting, which encompasses
journalistic judgment with respect to selection, organization, and
presentation of facts and ideas, is certainly a productive use. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. at 464 U. S.
478 -479 (BLACKMUN, J., dissenting).

															[ Footnote 3/16 ]

															To support this claim, the Court refers to some language in Sony Corp. of America v. Universal City Studios, Inc.,
supra, to the effect that "every commercial use of copyrighted
material is presumptively an unfair exploitation." Id. at 464 U. S. 451 . See ante at 471 U. S. 562 .
Properly understood, this language does not support the Court's
position in this case. The Court in Sony Corp. dealt with
a use -- video recording of copyrighted television programs for
personal use about which Congress had expressed no policy judgment.
When a court evaluates uses that Congress has not specifically
addressed, the presumption articulated in Sony Corp. is
appropriate to effectuate the congressional instruction to consider
"whether such use is of a commercial nature." 17 U.S.C. § 107(1).
Also, the Court made that statement in the course of evaluating a
use that appropriated the entirety of the copyrighted work in a
form identical to that of the original; the presumption articulated
may well have been intended to apply to takings under these
circumstances. But, in light of the specific language of § 107,
this presumption is not appropriately employed to negate the weight
Congress explicitly gave to news reporting as a justification for
limited use of another's expression.

															[ Footnote 3/17 ]

															This case is a far cry from Time Inc. v. Bernard Geis
Associates, 293 F.
Supp. 130 , 146 (SDNY 1968), the only case the Court cites to
support consideration of The Nation's purported bad faith. In that
case, the publisher claiming fair use had personally stolen film
negatives from the offices of Time and then published graphic
representations of the stolen photographic images. And the court
found fair use despite these circumstances. Ibid. [ Footnote 3/18 ]

															The Court also discounts this factor in part because the
appropriation of The Nation, "focusing on the most expressive
elements of the work, exceeds that necessary to disseminate the
facts." Ante at 471 U. S. 564 .
Whatever the propriety of this view of The Nation's use, it is
properly analyzed under the third statutory fair use factor -- the
amount and substantiality of the expression taken in relation to
the copyrighted work as a whole, 17 U.S.C. § 107(3) -- and will be
analyzed as such in this opinion.

															[ Footnote 3/19 ]

															The Court lays claim to specific congressional intent supporting
the presumption against prepublication fair use. See ante at 471 U. S. 553 ,
quoting S.Rep. No. 94-473, p. 64 (1975); ante at 471 U. S. 551 ,
n. 4, 471 U. S.
553 -554. The argument based on congressional intent is
unpersuasive for three reasons.

															First, the face of the statute clearly allows for prepublication
fair use. The right of first publication, like all other rights §
106 of the Act specifically grants copyright owners, is explicitly
made "subject to section 107," the statutory fair use provision. See 17 U.S.C. § 106.

															Second, the language from the Senate Report on which the Court
relies so heavily, see ante at 471 U. S. 553 ,
simply will not bear the weight the Court places on it. The Senate
Report merely suggests that prepublication photocopying for
classroom purposes will not generally constitute fair use when the
author has an interest in the confidentiality of the unpublished
work, evidenced by the author's "deliberate choice" not to publish.
Given that the face of § 106 specifically allows for prepublication
fair use, it would be unfaithful to the intent of Congress to draw
from this circumscribed suggestion in the Senate Report a blanket
presumption against any amount of prepublication fair use for any
purpose and irrespective of the effect of that use on the copyright
owner's privacy, editorial, or economic interests.

															Third, the Court's reliance on congressional adoption of the
common law is also unpersuasive. The common law did not set up the
monolithic barrier to prepublication fair use that the Court wishes
it did. See, e.g., Estate of Hemingway v. Random House,
Inc., 53 Misc.2d 462, 279 N.Y.S.2d 51 (S.Ct.N.Y.Cty.), aff'd, 29 App.Div.2d 633, 285 N.Y.S.2d 568 (1st
Jud.Dept.1967), aff'd on other grounds, 23 N.Y.2d 341, 244
N.E.2d 250 (1968). The statements of general principle the Court
cites to support its contrary representation of the common law, see ante at 471 U. S. 551 ,
n. 4, are themselves unsupported by reference to substantial
judicial authority. Congressional endorsement of the common law of
fair use should not be read as adoption of any rigid presumption
against prepublication use. If read that way, the broad statement
that the Copyright Act was intended to incorporate the common law
would, in effect, be given the force of nullifying Congress'
repeated methodological prescription that definite rules are
inappropriate and fact-specific analysis is required. The broad
language adopting the common law approach to fair use is best
understood as an endorsement of the essential fact-specificity and
case-by-case methodology of the common law of fair use.

															[ Footnote 3/20 ]

															The Court finds the right of first publication particularly
weighty because it encompasses three important interests: (i) a
privacy interest in whether to make expression public at all; (ii)
an editorial interest in ensuring control over the work while it is
being groomed for public dissemination; and (iii) an economic
interest in capturing the full remunerative potential of initial
release to the public. Ante at 471 U. S.
552 -555.

															[ Footnote 3/21 ]

															Perhaps most inappropriate is the Court's apocalyptic prophesy
that permitting any prepublication use for news reporting will
"effectively destroy any expectation of copyright protection in the
work of a public figure." Ante at 471 U. S. 557 .
The impact of a prepublication use for purposes of news reporting
will obviously vary with the circumstances. A claim of news
reporting should not be a fig leaf for substantial plagiarism, see Wainwright Securities Inc. v. Wall Street Transcript
Corp., 558 F.2d 91 (CA2 1977), but there is no warrant for
concluding that prepublication quotation of a few sentences will
usually drain all value from a copyright owner's right of first
publication.

															[ Footnote 3/22 ]

															These six quotes are:

															"(1) " [C]ompassion for Nixon as an individual hadn't
prompted my decision at all.' Rather, he did it because he had `to
get the monkey off my back one way or the other.'" Ante at 471 U. S.
572 -573." "(2) "Nixon would not spend the time quietly in San
Clemente,' and `it would be virtually impossible for me to direct
public attention on anything else.'" Ante at 471 U. S.
573 ." "(3) ' I learned that public policy often took precedence over a rule of
law. Although I respected the tenet that no man should be above the
law, public policy demanded that I put Nixon -- and Watergate --
behind us as quickly as possible.'' Ante at 471 U. S.
575 ."

															"(4) ''If I made the trip, it would remind everybody of
Watergate and the pardon. If I didn't, people would say I lacked
compassion.'' Ibid. "

															"(5) 'He was stretched out flat on his back. There were tubes in
his nose and mouth, and wires led from his arms, chest and legs to
machines with orange lights that blinked on and off. His face was
ashen, and I thought I had never seen anyone closer to death.' Ibid. "

															"(6) " A terribly proud man,' writes Ford, `he detested
weakness in other people. I'd often heard him speak disparagingly
of those whom he felt to be soft and expedient. (Curiously, he
didn't feel that the press was weak. Reporters, he sensed, were his
adversaries. He knew they didn't like him, and he responded with
reciprocal disdain.)' . . . `His pride and personal contempt for
weakness had overcome his ability to tell the difference between
right and wrong.' . . .' Nixon was out of touch with reality.'" Ante at 471 U. S.
578 ." [ Footnote 3/23 ]

															The Court places some emphasis on the fact that the quotations
from the Ford work constituted a substantial portion of The
Nation's article. Superficially, the Court would thus appear to be
evaluating The Nation's quotation of 300 words in relation to the
amount and substantiality of expression used in relation to the
second author's work as a whole. The statute directs the inquiry
into "the amount and substantiality of the portion used in relation
to the copyrighted work as a whole, " 17 U.S.C. § 107(3)
(emphasis added). As the statutory directive implies, it matters
little whether the second author's use is 1- or 100-percent
appropriated expression if the taking of that expression had no
adverse effect on the copyrighted work. See Sony Corp. of
America v. Universal City Studios, Inc., 464 U.
S. 417 (1984) (100% of expression taken). I presume,
therefore, that the Court considered the role of the expression "in
the infringing work" only as indirect evidence of the qualitative
value of the expression taken in this case. If read this way, the
point dovetails with the Court's major argument that The Nation
appropriated the most valuable sentences of the work.

															[ Footnote 3/24 ] See n. 471
U.S. 539 fn3/23|>23, supra. [ Footnote 3/25 ]

															The Court's reliance on the principle that "an infringer who
mingles infringing and noninfringing elements must abide the
consequences,'" ante at 471 U. S. 567 (citation omitted), is misconceived. Once infringement of a § 106
exclusive right has been shown, it is entirely appropriate to shift
to the infringer the burden of showing that the infringement did
not cause all the damages shown. But the question in this case is
whether this particular use infringed any § 106 rights. Harper
& Row may have shown actual damage flowing from The Nation's
use of information, but they have not shown actual damage flowing
from an infringement of a § 106 exclusive right. [ Footnote 3/26 ]

															Had The Nation sought to justify a more substantial
appropriation of expression on a news reporting rationale, a
different case might be presented. The substantiality of the taking
would certainly dilute the claim of need to use the first author's
exact words to convey a particular thought or sentiment. Even if
the claim of need were plausible, the equities would have to favor
the copyright owner in order to prevent erosion of virtually all
copyright protection for works of former public officials. In this
case, however, the need is manifest and the integrity of copyright
protection for the works of public officials is not threatened.