Amicus Curiae Brief — Harper & Row, Publishers, Inc. v. Nation Enterprises

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| Ottice ‘Supreme Court, U.S,

FI L-E D

Au ao 190

No. 83-1632

ALEXANDER oL etal

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

HARPER & Row PUBLISHERS, INC. and

THE READER’S DIGEST ASSOCIATION, INC.,

Petitioners,

Vv.

NATION ENTERPRISES and

THE NATION ASSOCIATES, INC.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF THE GANNETT COMPANY, INC.,

LOS ANGELES TIMES, NEWSWEEK, INC.,

THE NEW YORK TIMES COMPANY AND

THE WASHINGTON POST, AMICI CURIAE,

IN SUPPORT OF RESPONDENTS

Of Counsel: MELVILLE B. NIMMER

[Listed on inside front cover] (Counsel of Record )

SIDLEY & AUSTIN

2049 Century Park East

Los Angeles, CA 90067

(213) 553-8100

BENJAMIN W. HEINEMAN, JR.

ALAN C. GEOLOT

SwLeY & AUSTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

August 20, 1984 Attorneys for Amici Curiae

WILSON - EPES PRINTING Co.. - 789-0096 - WASHINGTON. D.C. 2000!

BEST AVAILABLE COPY

Of Counsel:

ALICE NEFF LUCAN

Assistant Genera! Counsel

The Gannett Company, Inc.

Lincoln Tower

Rochester, NY 14604

RoBERT C. LOBDELL

JEFFREY S. KLEIN

Los Angeles Times

Times Mirror Square

Los Angeles, CA 90053

DIANA M. DANIELS

Vice President & Counsel

Newsweek, Inc.

444 Madison Avenue

New York, NY 10022

KATHARINE P. DARROW

GEORGE FREEMAN

The New York Times

229 West 43rd Street

New York, NY 10036

BOISFEUILLET JONES, JR.

CAROL D. MELAMED

The Washington Post

1150 15th Street, N.W.

Washington, D.C. 20071

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................--..---------..0.......000. iii

INTEREST OF AMICI CURIAB ................-..----.00-----0---- 1

INTRODUCTION: REPORTING THE NEWS ......... 2

SUMMARY OF ARGUMENT .................. acieishaatiaitesininegs 4

EE ES 6

I. THE PROPER BALANCE BETWEEN THE

FIRST AMENDMENT AND THE LAW OF

ABLE: STATUTORY DOCTRINES .................

A. The Need To Balance ......................................

B. The Competing Interests .................................

C. The Appropriate Balance: Statutory Doc-

trines and First Amendment Rights _........... s

1. The Idea-Expression Dichotomy .............. 9

2. The Exclusion of Copyright for Facts...... 11

8. The Exclusion of Copyright for Works of

the United States Government ..... ieeheee 14

4. The Exclusion of Copyright For Material

Not Original to the Author ........................ 15

Il. APPLICATION OF THE STATUTORY DOC-

TRINES: MOST OF THE NATION ARTICLE

CONSISTED OF UNCOPYRIGHTABLE MA-

EI A A 15

eT 15

B. Expression: Selection, Arrangement and

EL a 17

C. Facts and Ideas: The Paraphrasing Issue... 19

TABLE OF CONTENTS—Continued

Ill. THE USE OF COPYRIGHTABLE MATERIAL

BY THE NATION WAS FAIR... <deipepanmmennen

A. The Purpose and the Character of the Use:

B. The Nature of the Copyrighted Work: Fair

Use Applies to About-to-be-Published Works..

C. The Amount and Substantiality of the Por-

a a a citrereeiarieas

E. Fair Use Should be Found to Avoid First

Amendment Questions .....................-............

Page

$ 8B 8&8 B FE

iii

TABLE OF AUTHORITIES

Cases

Abrams v. United States, 250 U.S. 616 (1919) -......

American Federation of Labor v. Swing, 312 U.S.

FEE RES S He ee ne SS

Brown V. Hartlage, 456 U.S. 45 (1982) ..................

Crowell v. Benson, 285 U.S. 22 (1932) —...............

Echevarria V. Warner Bros. Pictures, Inc., 12 F.

Supp. 683 (S.D. Cal. 1986) ..........................-.-.....---

Eckes v. Card Prices Update, 1984 Copyright Law

Decisions (CCH) {| 25,672 (2d Cir. 1984) _......

Eisenschiml v. Fawcett Publications, Inc., 246 F.2d

598 (7th Cir.), cert. denied, 355 U.S. 907

EE ee eee ae.

Encyclopedia Britannica Educational Corp. V.

Crooks, 542 F. Supp. 1156 (W.D.N.Y. 1982) -_...

Fendler v. Morosco, 253 N.Y. 281, 171 N.E. 56

ER ee ee

Flick-Reedy Corp. v. Hydro-Line Manufacturing

Co., 351 F.2d 546 (7th Cir. 1965), cert. denied,

Funkhouser v. Loew’s, Inc., 208 F.2d 185 (8th Cir.

TET . cesinnsieneiearipnnctntapinniintpaiinainmetioannmetiammennnss

Golding v. RKO Radio Pictures, Inc., 193 P.2d 153

(Cal. Dist. Ct. App. 1948), aff'd, 221 P.2d 95

0 RES ES Se ee ee

Hemingway v. Random House, Inc., 53 Misc.2d

462, 270 N.Y.S.2d 51 (Sup. Ct. 1967), aff'd, 285

N.Y.S.2d 568 (App. Div. 1967), aff'd on other

grounds, 23 N.Y.2d 341, 296 N.Y.S.2d 771

nT one

Henry Holt & Co. v. Liggett & Myers Tobacco Co.,

23 F. Supp. 302 (E.D.Pa. 1938)

Hoehling Vv. Universal City Studios, Inc., 618 F.2d

TEE ae aoe

Huie v. NBC, 184 F. Supp. 198 (S.D.N.Y. 1960) _.

Int’l Ass’n of Machinists v. Street, 367 U.S. 740

ne ane a

lowa State University Research Foundation, Inc.

v. American Broadcasting Cos., 621 F.2d 57 (2d

Cll OEE ee -

TABLE OF AUTHORITIES—Continued

Page

Landmark Communications, Inc. Vv. Virginia, 435

IG ea x

Landsberg v. Scrabble Crossword Game Players,

Inc., 736 F.2d 485 (9th Cir. 1984) —................... 20

Malkin v. Dubinsky, 203 N.Y.S.2d 501 (Sup. Ct.

EST SS LAER. ee 25

Marshall v. Yates, 1983 Copyright Law Decisions

(CCH) {4 25,594 (C.D. Cal. 1983) _.................... 16

Mazer V. Stein, 347 U.S. 201 (1954) 00. 7,9

Millar v. Taylor, 4 Burr. 2303, 98 Eng. Rep. 201

icine 26

Milier v. Universal City Studios, Inc., 650 F.2d

I al riers 11, 12

Mills v. Alabama, 384 U.S. 214 (1966) —........ 3

Mosley v. Follet, 209 U.S.P.Q. 1109 (S.D.N.Y.

RE Se ne a EN 16

Near V. Minnesota, 283 U.S. 697 (1931) ee 6

Nebraska Press Ass’n Vv. Stuart, 427 U.S. 539

RE I 6

New York Times Co. v. Roxbury Data Interface,

Inc., 484 F. Supp. 217 (D.N.J. 1977) .................. 23

New York Times Co. v. United States, 403 U.S.

aaah nties 9

Nichols v. Universal Pictures Corp., 45 F.2d 119

I crite ineihi chien tamnaadinaiiaiibiabiibeeit 19, 20

Pacific and Southern Co. v. Duncan, 572 F. Supp.

ES ae 30

Pacific and Southern Co. v. Duncan, 1982 Copy-

right L. Rep. (CCH) © 25,421 (N.D.Ga. 1982) _.. 30

Press Pub. Co. Vv. Monroe, 73 Fed. 196 (2d Cir.

RC Ca EE ae 24

Quinto v. Legal Times of Washington, Ine., 506 F.

Supp. 554 (D.D.C. 1981) . 9

Roy Export Co. Establishment v. Columbia. Broad-

casting Sys., Inc., 672 F.2d 1095 (2d Cir. 1982).. 30

Saia v. New York, 334 U.S. 558 (7948) 6

Schad v. Mt. Ephraim, 452 U.S. 61 (1981) —.......... ~

Sid & Marty Krofft Television Productions, Inc. v.

McDonald's Corp., 562 F.2d 1157 (9th Cir.

— , 9, 30

TABLE OF AUTHORITIES—Continued

Page

Sony Corp. of America Vv. Universal City Studios,

Ine., 104 8. Ct. 774 (1964) ............................ 7, 22, 23, 25

Stanley v. Columbia Broadcasting System, Inc.,

35 Cal.2d 652, 221 P.2d 73 (Cal. 1950) 0. 24

Stromberg v. California, 283 U.S. 359 (1931) -_....... 3

Terminiello Vv. Chicago, 337 U.S. 1 (1949) -.............. 6

Thornhill vy. Alabama, 310 U.S. 88 (1940) ............ 3

Time Inc. Vv. Bernard Geis Associates, 293 F. Supp.

130 (S.D.N.Y. 1968)... PRES AA ES EY 29, 30

Time Inc. Vv. Firestone, 424 U.S. 448 (1976) —........... 12

Triangle Publications, Inc. v. Knight-Ridder News-

papers, Inc., 626 F.2d 1171 (5th Cir. 1980)... 10, 21,

29, 30

Twentieth Century-Fox Film Corp. v. MCA, Ince.,

716 F.24 1827 (9th Cir. 1968) ............................... 20

Twentieth Century Music Corp. v. Aiken, 422 U.S.

i Re ane 7

United States v. Associated Press, 52 F. Supp. 362

I x

United States v. Bodin, 375 F. Supp. 1265 (W.D.

git TR OR eee ASE SS 10

United States v. Hamilton, 583 F.2d 448 (9th Cir.

ERE AAI A er ae SE TO 18

United States v. Security Indus. Bank, 459 U.S.

aad 9

Wagner V. Meccano Ltd., 246 F. 603 (6th Cir.

1917), aff’g 234 F. 912 (S.D. Ohio 1916)... 21

Wainwright Sec. Inc. v. Wall Street Transcript

Corp., 558 F.2d 91 (2d Cir. 1977), cert. denied,

A TT TE 9,18

Walt Disney Productions v. Air Pirates, 581 F.2d

lS, ALS EAE 9

Weitzenkorn v. Lesser, 40 Cal.2d 778, 256 P.2d

947 (1953) . 24

W.A. Anderson Co. v. ‘Baldwin Lew Pub. Co., 27

ee I tceccees 21

Wheaton V. Peters, 22 U.S. (8 Peters) 591 (1834). 9

Whitnew Vv. California, 274 U.S. 357 (1927) _....... 8

TABLE OF AUTHORITIES—Continued

Page

Widmar v. Vincent, 454 U.S. 263 (1981) -...........---- 8

Zacchini v. Scripps-Howard Publishing Co., 433

WG. BOB (1OTT) ...22.--0c-2-cceceennnseeoncesnccereccssscoscsessoeee 10

Constitutional Provisions

U.S. Constitution, Art. I, Sec. 8, Cl. 8 ..............-..- 2, 6,11, 15

U.S. Constitution, Amendment I ................-...---------- passim

Statutes

17 U.S.C., Sec. 101 et 80. .......-------------cceeeeennennnennnnnnees 6

17 T.B.C.. Bec. 10B() ........2200--2-00---00c--eecrsncnosecsesennsees 13, 15

17 ULS.C., Sec. 102 (Db) .........--..--0---neeeeceeeeeesnsessnnenenenee 9,11

RR EE ssinnitntinatilialiateaaimeaiia 14, 16

ath Cae |) enn 27

17 U.S.C., Sec. 107 (1) ...-...----.---cc--cceeeceeeeennneeennennnnnes .. 21, 22

17 U.S.C., Sec. 107 (2) .........2-----c0---ceeneceneeennnsennsnnnnnanees 21, 23

17 U.S.C., Sec. 107 (8) _.....-.-.--------ceeeeeneeenennnennnnneee 21, 25, 28

17 U.S.C., Sec. 107 (4) -..---------------ececeneneeenenenenenennenanens 21, 29

Legislative Materials

H.R. Rep. No. 94-1476, 94th Cong., 2nd Sess.

CIID an eeececsceecccececnsevecereensscnsasaccnscosecsnaneeseneneeneesee 25

S. Rep. No. 94-473, 94th Cong., Ist Sess. (1975) .... 22, 25

Other

Burton, R., Anatomy of Melancholy (1618) ............. 10

Chafee, Reflections on the Law of Copyright, 45

Colum. L. Rev. 503 (1945) .............-------------s0-000+- 10, 19

Code of Ethics in Journalism: Readings in the

Mass Media (A. Kirschner & L. Kirschner, eds.

| none 3

Epstein, “The American Press: Some Truths

About Truths,” in Ethics and the Press, (J.

Merrill & R. Barney, eds. 1975) ..................----.-..... 27

Nimmer, M.B., Nimmer on Copyright (1984) ......... passim

Nimmer, M.B., Nimmer on Freedom of Speech

(19K) ..n2..0.-cccnccnnccencnssennseesenessensessnssnsssnasnnsscnsonsnneess 7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No. 83-1632

HARPER & Row PUBLISHERS, INC. and

THE READER’S DIGEST ASSOCIATION, INC.,

Petitioners,

Vv.

NATION ENTERPRISES and

THE NATION ASSOCIATES, INC.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF THE GANNETT COMPANY, INC.,

LOS ANGELES TIMES, NEWSWEEK, INC.,

THE NEW YORK TIMES COMPANY AND

THE WASHINGTON POST, AMICI CURIAE,

IN SUPPORT OF RESPONDENTS

THE INTEREST OF AMICI CURIAE

Amici curiae publish general circulation newspapers

and magazines. They frequently report on major political

and governmental events. One of the amici, The New

York Times Company, also owns a book publishing com-

pany. To protect their mews gathering and dissemination

activities, amici rely on the freedoms of speech and press

guaranteed by the First Amendment. To harvest the

benefits from the joriginal works of authorship which are

published or broadcast by their organizations, amici rely

on the protections provided by copyright law. Accord-

ingly, amici are concerned that, in the instant case, this

Court establish the proper framework for reconciling the

tension between the First Amendment and the copyright

law authorized by Article I, Section 8, Clause 8 of the

Constitution.

The Gannett Company, Inc. publishes £5 daily news-

papers throughout the United States, including the na-

tional newspaper USA Today; it also owns television and

radio stations, and operates Gannett News Service, a na-

tional wire service, and other news and information in-

terests. The Los Angeles Times, a division of The Times

Mirror Company, is a daily newspaper published in Los

Angeles, California; it also syndicates newspaper fea-

tures and is the joint owner of a news service. News-

week, inc., a subsidiary of The Washington Post Com-

pany, publishes Newsweek, a weekly news magazine dis-

tributed in the United States and abroad. The New York

Times Company and its subsidiaries publish The New

York Times, 29 other newspapers and four magazines; it

operates a news service and it owns television and radio

stations as well as the book publishing company noted

above. The Washington Post is a division of The Wash-

ington Post Company and publishes The Washington

Post, a daily newspaper. It also syndicates columnists

and contributes its newspaper material to a wire service

and various electronic data base services.

INTRODUCTION: REPORTING THE NEWS

In this case, this Court is asked to resolve the tension

between the First Amendment’s protection of news re-

porting on political and governmental events of national

importance and the protection afforded under the Copy-

right Act to nonfiction works written by former high

public officials. Before advancing a framework for resolv-

ing the tension between the exercise of First Amendment

rights and the protections of the copyright statute and

applying that framework in this case, amici news organ-

izations wish to stress several points about the gather-

ing and dissemination of news. They do so in the hope

that this Court’s decision in the instant case will sustain

time honored praetices of the media which help ensure a

full and free flow of information to the public and which

are essential to the functioning of our constitutional

democracy.

First, news is as likely to be based on books and manu-

scripts as on speeches, press releases, hearings or other

events. Indeed, the subject of The Nation article was

clearly important news. The article reported President

Ford’s account of two of the most searing events of re-

cent times: the resignation of President Nixon and his

pardon by Mr. Ford. Moreover, at the time the article

appeared in April, 1979, both Mr. Ford and Alexander

Haig, who was also featured prominently in the article,

were considered serious contenders for the 1980 Repub-

lican nomination. See Appendix A to Petition for Writ

of Certiorari [hereinafter “App.A”] at A8. It has long

been recognized that protection of free speech about, and

free press reporting on, issues of governmental and polit-

ical affairs is a “major purpose” of the First Amend-

ment. See, e.g., Mills v. Alabama, 384 U.S. 214, 218

(1966); Thornhill v. Alabama, 310 U.S. 88, 101-02

(1940); Stromberg v. California, 283 U.S. 359, 369

(1931).

Second, in their news columns, news organizations do

not customarily add their own “independent commentary.”

See Petitioners’ Brief [hereinafter “Pet.Br.”] at 5. They

do bring to bear their own news judgment in selecting

and organizing material so as to highlight what they con-

sider the most important or newsworthy information.

For example, the American Society of Newspapers Edi-

tors’ Code of Ethics, Canon IV, calls for a “clear distine-

tion” between news reporting and the expression of opin-

ion, commentary, and advocacy traditionally reserved for

the editorial page. See Code of Ethics in Journalism:

Readings in the Mass Media, 22 (A. Kirschner & L.

Kirschner, eds. 1971). Petitioners’ claim that The

Nation’s failure to add independent commentary to the

article makes the article a “non-productive use,” Pet. Br.

at 5, 34-38, not only misconceives the historic separation

between news columns and editorial pages but it also fails

to recognize the selection and highlighting function that

is a key aspect of news reporting.

Third, once news organizations receive newsworthy

information that is authentic, they will generally publish

or broadcast their independently selected and organized

report of that information as soon as possible. The pos-

sibility that the information might be disseminated at

some time in the future by someone else is a stimulus,

not a bar, to immediate dissemination, given the impor-

tance in a democracy of the media’s role in bringing im-

portant information about public affairs to the people as

soon as possible.

Fourth, innumerable news stories are based on unsolic-

ited documents and information. The test for dissemina-

tion in such circumstances is not the motive of the third

party who provided the unsolicited document but whether

the information contained in the unsolicited document is

authentic and newsworthy.

In this case, The Nation determined that the unsolicited

material it had received was clearly newsworthy. It

worked intensively to select and highlight what, in its

judgment, was the most newsworthy information from a

lengthy manuscript. It presented the material in a

straightforward way without adding editorial or other

commentary on the manuscript. Satisfied with the

authenticity of Mr. Ford’s account, it published with the

conviction that its article would contribute to public dis-

cussion of the issues reported. Joint Appendix at JA283-

JA287. In sum, The Nation’s news reporting was gen-

erally consistent with news gathering and dissemination

practices followed by the journalism profession.

SUMMARY OF ARGUMENT

In determining whether a newspaper or magazine

article constitutes copyright infringement of another

work, courts must ask first, as the Court of Appeals prop-

erly did, what material taken for the article was copy-

rightable. In answering that question, courts should ap-

ply important statutory doctrines that mediate between

First Amendment rights and the interests protected by

the Copyright Act: ideas, as opposed to the form of ex-

pressing those ideas, are not copyrightable; facts, as op-

posed to the form of expressing those facts, are not copy-

rightable; works of the United States are not copyright-

able; and material not original to the author is not copy-

rightable. These statutory doctrines—especially the dis-

tinctions between ideas and expression and between facts

and expression—should be applied so as to avoid ques-

tions of First Amendment violations.

The Court of Appeals properly applied those doctrines

in concluding that only 300 words of President Ford’s

memoir as reported in The Nation article were copyright-

able by petitioners. In particular, under the appropriate

rules for a non-fiction work, The Nation’s summarizing

and paraphrasing of certain ideas and facts described in

President Ford’s memoir did not constitute a copying of

copyrightable material because there was not substantial

similarity to the actual expression used by Mr. Ford and

because the article did not mimic the structure of the

memoir but was instead an original arrangement and

selection of material which drew on widely disperate pas-

sages from a lengthy manuscript.

With respect to the approximately 300 copyrightable

words that did appear in The Nation article, the Court of

Appeals properly concluded that their reproduction by

The Nation constituted a “fair use,” in important part

because the purpose of the article was unequivocally

“news reporting” which was explicitly recognized by the

Congress as a fair use under the Copyright Act. The

use was also fair because the 300 words did not appear

as a single passage in either the Ford memoir or in The

Nation article. The 300 words represent the cumulative

total of various passages, each consisting of no more than

a few sentences, found throughout the Ford memoir and

throughout The Nation article. That the Ford memoir

was unpublished at the time of publication of The Nation

article does not justify the denial or narrowing of a fair

use defense, because the author had consented to immi-

nent publication of the memoir and hence cannot claim

the violation of a viable privacy interest.

ARGUMENT

I. THE PROPER BALANCE BETWEEN THE FIRST

AMENDMENT AND THE LAW OF COPYRIGHT

ON WHAT IS COPYRIGHTABLE: STATUTORY

DOCTRINES

In approaching this case, it is important to have clearly

in view the statutory doctrines which define what is and

what is not copyrightable and which thus seek to mediate

between First Amendment and copyright interests.

A. The Need To Balance

Read literally, the First Amendment would invalidate

the Copyright Act.! On the other hand, since the Copy-

right Clause of the Constitution, Art. I, Sec. 8, Cl. 8,

vests in Congress the power to enact copyright laws, it

might be argued that this creates a built-in immunity

from the First Amendment for copyright. Both extreme

positions are obviously untenable? But if copyright is

117 U.S.C. § 101, et seg. The First Amendment requires that

“Congress shall make no law . . . abridging the freedom of speech,

or of the press... .”

2 This court has not read the First Amendment literally or

mechanistically, Nebraska Press Ass'n V. Stuart, 427 U.S. 539, 570

(1976), Terminiello v. Chicago, 337 U.S. 1, 4 (1949), Saia v. New

York, 334 U.S. 558 (1948), Near v. Minnesota, 283 U.S. 697, 708

(1931), and would not do so to abrogate copyright protection. Sim-

ilarly, a “copyright exception” to the First Am¢ndment is demon-

strably specious. The First Amendment is amendment, and

hence modifies the previously adopted Constifution, including the

ment are those conferred by the Constitution, it is precisely those

conferred powers which are limited by the Bill of Rights.

neither immune from nor invalidated by the First

Amendment, then some constitutional accommodation

must be found between these two competing interests.

B. The Competing Interests

This Court has on a number of occasions articulated

the interest underlying copyright. For example, in Mazer

v. Stein, 347 U.S. 201, 219 (1954), this Court stated:

The economic philosophy behind the clause empower-

ing Congress to grant patents and copyrights is the

conviction that encouragement of individual effort by

personal gain is the best way to advance public wel-

fare through the talents of authors and inventors in

‘Science and useful Arts.’ /

Similarly, in Twentieth Century Music Corp. v. Aiken,

422 U.S. 151, 156 (1975), this Court observed:

Creative work is to be encouraged and rewarded, but

private motivation must ultimately serve the cause

of promoting broad public availability of literature,

music, and the other arts. 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 artistic creativity for the

general ,public good.

In short, the purpose of copyright is to provide an incen-

tive for author creativity, so that the public may reap the

benefit of such creativity. See also, Sony Corp. of America

v. Universal City Studios, Inc., 104 S.Ct. 774, 783 (1984)

[hereinafter “Sony Corp.’’}.

The primary purpose of the First Amendment’s free-

dom of speech and press clause is to enlighten the

nation’s citizens so that they may enjoy individual free

dom, develop to their fullest potential and practice the

difficult art of self-government. This “enlightenment

function” * was summed up in Justice Brandeis’ classic

statement: “[F]reedom to think as you will and to speak

8 See Nimmer on Freedom of Speech, § 1.02 (1984).

as you think are means indispensable to the discovery

and spread of political truth... .”* As Judge Learned

Hand observed, “[the First Amendment] presupposes

that right conclusions are more likely to be gathered out

of a multitude of tongues, than through any kind of

authoritative selection. To many that is, and always will

be, folly; but we have staked upon it our all.”* Although

the enlightenment function is fulfilled by non-political

speech,® there is no doubt that protection of “political

speech” is a fundemental goal of the First Amendment.’

Under any definition of “political speech,” the subject

matter of the disputed Nation article—a former Presi-

dent’s account of his predecessor’s resignation and par-

don—surely constitutes speech about politics and govern-

mental affairs of the highest order.

C. Striking The Appropriate Balance: Statutory Doc-

trines And First Amendment Rights

To avoid a clash between the constitutional rights pro-

tected by the First Amendment and the statutory inter-

ests protected by a copyright law expressly authorized in

the Constitution, important doctrines have been developed

to mediate between those potentially competing interests.

Many of these doctrines have been codified in the Copy-

right Act of 1976, and must be applied to The Nation

article to answer the threshold question in an infringe-

ment action: what copyrightable material contained in

the Ford memoir was included in The Nation article.

* Whitney Vv. California, 274 U.S. 357, 375 (1927) (Brandeis, J.,

concurring).

5 United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.

N.Y. 1943).

6 E.g., American Federation of Labor vy. Swing, 312 U.S. 321

(1941) (labor communications) ; Widmar v. Vincent, 454 U.S. 263

(1981) (religious speech); Schad v. Mt. Ephraim, 452 U.S. 61

(1981) (entertainment).

7 Brown V. Hartlage, 456 U.S. 45, 52 (1982). See also Landmark

Communications, Inc. Vv. Virginia, 435 U.S. 829, 838 (1978).

As will be discussed below, these statutory doctrines

attempt to give ample breathing room to First Amend-

ment rights because, if they did not, the copyright laws

enacted by the Congress might themselves be unconstitu-

tional violations of the First Amendment. Accordingly,

these statutory doctrines should always be applied so as

to avoid the constitutional question of whether the exer-

cise of particular First Amendment rights must override

the copyright statute.*

1. The Idea-Expression Dichotomy. It has long been

recognized as a matter of copyright law that no vrotec-

tion may be claimed in an “idea” as distinguished from

the “expression” of that idea. This principle has now

been codified in the current Copyright Act.”

A number of lower court decisions have held that the

“idea-expression” dichotomy is also required by the First

Amendment. By reason of the First Amendment, the

in “ideas,” but a copyright owner may prohibit the use

by others of his “expression” without offending the First

Amendment freedoms of speech and press."' This Court

8 Wheaton Vv. Peters, 33 U.S. (8 Peters) 591, 661-63 (1834) (pro-

tection given to copyright wholly statutory). See also Crowell v.

Benson, 285 U.S. 22, 62 (1932) ; Int'l Ass’n of Machinists v. Street,

367 U.S. 740, 749-50 (1961) ; United States v. Security Indus. Bank,

459 U.S. 70, 78 (1982) (Federal statutes are to be construed so as

to avoid serious doubts about their constitutionality) .

® This Court has recognized that “protection is given only to the

expression of the idea—not the idea itself’, Mazer v. Stein, 347

U.S. 201, 217 (1954), and that “copyright laws, of course, protect

only the form of expression and not the ideas expressed.” New

York Times Co. Vv. United States, 4038 U.S. 713, 726 n.* (1971)

(Brennan, J., concurring).

17 U.S.C. § 102(b): “In no case does copyright protection for

an original work of authorship extended to any idea... .”

11 Sid & Marty Krofft Television Prods. v. McDonald's Corp.,

562 F.2d 1157 (9th Cir. 1977); Wainwright Sec. Inc. v. Wall Street

Transcript Corp., 558 F.2d 91 (2d Cir. 1977); Walt Disney Prods.

v. Air Pirates, 581 F.2d 751 (9th Cir. 1978) ; Quinto v. Legal Times

has not yet directly held that the “idea-expression” di-

chotomy is required by the First Amendment,” and

should do so in this case.

The rationale for such a distinction is straightforward.

A limitation whereby authors may not prohibit others

from copying their abstract ideas (as distinguished from

their “expression”) does not discourage creativity, or

otherwise retard the “Progress of Science and useful

Arts.” Most, if not all, writers draw from the stock of

ideas of their predecessors. Professor Chafee reminded

us that “‘{a] dwarf standing on the shoulders of a giant

can see farther than the giant himself.” If writers

and other creators could not build upon the ideas of their

predecessors, not only would freedoms of speech and press

be abridged, but the creative processes themselves—the

circumscribed.

Similarly, the copyright restrictions on repeating or

copying “expression” of ideas comports with the First

Amendment’s underlying rationale for freedom of speech.

It is exposure to ideas, and generally not to their partic-

ular expression, that is vital if self-governing people

of Washington, Inc., 506 F. Supp. 554 (D.D.C. 1981) ; United States

v. Bodin, 375 F. Supp. 1265 (W.D. Okla. 1974).

12 But in Zacchini v. Scripps-Howard Broadcasting Co., 423 U.S.

562, 577, n.13, (1977), which ruled on the impact of the First

Amendment on the right of publicity rather than on copyright, this

Court sta in a footnote: “We note that Federal District Courts

have reje/ted First Amendment challenges to the federal copyright

e ground that ‘no restraint [has been] placed on the use

ea or concept.’” See also, Triangle Publications, Inc. V.

-Ridder Newspapers, Inc., 626 F.2d 1171, 1179-1180, n.2

ir. 1980) (Brown, J., concurring) (citing Zacchini and not-

e Supreme Court has given at least its most general approval

to Yne ‘idea-expression dichotomy’ principle.” ).

13 Chafee, Reflections on the Law of Copyright, 45 Colum. L. Rev.

, 511 (1945). The phrase can be traced to R. Burton, Anatomy

of Melancholy (1618).

are to make informed decisions."* Accordingly, the “idea-

expression” dichotomy generally represents an acceptable

balance between copyright and First Amendment inter-

ests. In some degree, it encroaches upon the First

Amendment in that it abridges the right to reproduce the

“expression” of others, but this is justified by the greater

public good in the encouragement of creative works by

means of copyright protection. In some degree, it en-

croaches upon the author’s right to control his works in

that it renders his “ideas” per se unprotectable, but this

is justified by the greater public need for free access to

ideas as part of the First Amendment’s enlightenment

function.

2. The Exclusion of Copyright for Facts. A second

statutory copyright doctrine that mediates between First

Amendment and copyright interests is that no copyright

may be claimed in facts per se.“ This result is also

dictated by the limitation on Congressionai copyright

authority as contained in the Copyright Clause. That

Clause empowers Congress to grant copyright only to

“authors.” One may discover a fact, but no one may

laim to be the “author” of a fact.** Moreover, the effort

expended in discovering a fact does not justify copyright

protection in that fact.’ The most significant compo-

14 It is not without significance that the objectives of freedom of

speech and press are often said to be attained by “free trade in

ideas.” Abrams V. United States, 250 U.S. 616, 630 (1919) (Holmes,

J., dissenting) (emphasis added).

15 Miller v. Universal City Studios, Inc., 650 F.2d 1365 (5th Cir.

1981) ; Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d

Cir. 1980); Funkhouser v. Loew's, Inc., 208 F.2d 185 (8th Cir.

1953). See generally Nimmer on Copyright, § 2.11 (1984).

16 “Tn no case does copyright protection for an original work of

authorship extend to any . . . discovery, regardless of the form in

which it is described, explained, illustrated, or embodied in such

work.” 17 U.S.C. See. 102(b).

17If a given fact were eligible for copyright by reason of the

investigative or other efforts of its discoverer, there would be a

nents of copyright protection in a factual work relate to

the literal form of expression—the actual sequences of

particular words selected to describe given facts." Thus,

a substantial verbatim copying of such words will ordi-

narily constitute copyright infringement of a factual

work.

The rationale for the “fact-expression” statutory doc-

trine is very similar to the rationale for the “idea-

expression” dichotomy. The copyright interest is ad-

vanced by protecting the author’s actual expression. The

First Amendment interest in a full flow of information

to the public is advanced by removing facts per se from

the protection of the copyright law.”

Petitioners, citing the District Court’s decision, ask

this Court to hold that an author may copyright facts as

long as he couples those facts with expression. Pet. Br.

at 18-21. Petitioners’ novel and misguided proposal

would permit an author to acquire the exclusive right to

recount a period of history by being the first to write

about it—an intolerable and much criticized result.”

There is simply no basis in copyright law for the rule

wholly unacceptable inhibition on the marketplace of ideas. No

one may claim a copyright monopoly on the facts of the Watergate

incident or the experiences of the Iranian hostages, or any other

fact no matter how newsworthy or historically significant. See

Miller v. Universal Studios, Inc., 650 F.2d 1365, 1372 (5th Cir.

1981).

18 See cases collected in Nimmer on Copyright, § 2.11 [B] (1984).

19 See Time inc. Vv. Firestone, 424 U.S. 448, 472 (1976) (the

truthful disclosure of facts constitutes such a vital First Amend-

ment interest that even false statements of fact will sometimes also

command First Amendment protection in order “to allow an ade-

quate margin for error—protecting some misstatements so that

the ‘freedoms of expression .. . have the “breathing space” that

they “need . . . to survive”.’”’).

2 See, e.g., Eisenschiml v. Fawcett Publications, Inc., 246 F.2d

598, 601 (7th Cir.), cert. denied, 355 U.S. 907 (1957) ; Echevarria

v. Warner Bros. Pictures, Inc., 12 F. Supp. 632, 638 (S.D. Cal.

1935) ; Nimmer on Copyright § 2.11[E], at 2-169 (1984).

advanced by petitioners the facts per se are copyrightable

when combined with expression. Such an erroneous prop-

osition flies directly in the face of the fundamental prin-

ciple that only that which is “original” with the author

may be the subject of copyright.** Obviously, a fact does

not originate with one who “discovers” the fact. The dis-

coverer merely finds and records. He may not claim that

the facts are “original” with him, although there may

be originality and hence authorship in the manner of

recounting, i.e., the “expression,” of the facts.

Most of The Nation article insofar as it is derived

from the Ford memoir consists of merely the reporting of

facts, and not the copying of the precise words describing

those facts as contained in the memoir. See pp. 15-20,

infra. In order to maintain that this reporting of facts

per se constitutes copyright infringement, petitioners are

forced to rely upon the “totality” theory created by the

District Court. Under this theory, the noncopyrightable

facts contained in The Nation article were somehow

transmuted into copyrightable works by the circumstance

that they were collected together with Ford’s reflections.”

Even if Mr. Ford’s reflections were themselves copyright-

able (And they are not), a noncopyrightable fact cannot

be fhade copyrightable simply because it is “collected

together with” that which is copyrightable. If this were

the law, then the Copyright Act would surely violate the

First Amendment since it would mean that no one could

repeat facts first discovered by another as long as the

first person to publish such facts were careful to juxta-

pose them with that which is copyrightable.

Petitioners and the District Court commit further

error in applying the “totality” theory by assuming that

Mr. Ford’s revelations as to his state of mind while in-

volved in governmental affairs are themselves copyright-

able. President Ford’s state of mind while involved in

governmental affairs is no less a “fact,” in itself in-

2117 U.S.C. § 102(a). See Nimmer on Copyright, § 2.01 (1984).

*2 Appendix B to Petition For Writ of Certiorari at B9-B11.

capable of copyright protection, than is the fact that he

granted Mr. Nixon a pardon. For example, in the Ford

Manuscript, he states: “I was angry with myself for

showing cowardice in not saying to the ultraconserva-

tives, ‘It’s going to be Ford and Rockefeller... .’” Ap-

pendix E to Petition for Writ of Certiorari, at E5. The

Nation article included the following passage: “and that

he regretted his ‘cowardice’ in allowing Rockefeller to

remove himself from Vice Presidential contention.” /d.

The only identical word is “cowardice.” In this passage,

there is obviously a copying of fact but not of expres-

sion.**

3. The Exclusion of Copyright for Works of the

United States Government. A third statutory doctrine

protecting First Amendment interests is found in 17

U.S.C. Sec. 105; copyright may not be claimed in works

of the United States Government. Not every oral state-

ment uttered by a government official during his term in

office constitutes a work of the United States Government

for this purpose. But it is beyond dispute that any state-

ments which were reduced to writing during the official’s

term of office or performance of governmental duties and

which relate to governmental affairs should be so classi-

fied. Even without this statutory provision, the same

result would be required by the First Amendment. The

enlightenment function served by the First Amendment

is particularly relevant to works of the United States

Government, while the competing copyright interest in

23 It is irrelevant that Mr. Ford is both the author and the sub-

ject of the revelations. Suppose someone else in writing a bio-

graphy of Mr. Ford made the same statement as to Mr. Ford’s

state of mind vis-a-vis Mr. Rockefeller. Copyright would attach to

the first author’s words describing the fact that Mr. Ford regretted

his decision as to a vice-presidential running-mate, but, apart from

his expression, the first author could surely not claim copyright in

the fact per se of Mr. Ford’s belief that he had made a mistake.

The fact of Mr. Ford’s state of mind does not suddenly become

copyrightable simply because Mr. Ford rather than a third party is

reporting that fact.

— —

encouraging authorship has no application to such

works.**

4. The Exclusion of Copyright for Material Net Origi-

nal to the Author. A fourth statutory doctrine protect-

ing First Amendment rights in the context of copyright

is the rule that there is no protection for the use by an

author of the verbatim conversations of others. This is

so because of the requirement of the Copyright Act that

an author’s work be his own and not originate in others.

17 U.S.C. § 102(a). See also, U.S. Const., Art. I, § 8, Cl.

8 (reservation of copyright to “authors’’).

II. APPLICATION OF THE STATUTORY DOCTRINES:

MOST OF THE NATION ARTICLE CONSISTED OF

UNCOPYRIGHTABLE MATERIAL

The Court of Appeals properly stated and applied the

statutory doctrines defining copyrightable material to the

material from the Ford memoir used in The Nation

article.

A. General

Once the erroneous “totality” theory advanced by peti-

tioners is rejected, see p. 12, supra, then it is helpful in

determining what was copyrightable by the petitioners to

view The Nation article as having used four types of

material.from the Ford manuscript.

(1) The Nation used verbatim quotations from Mr.

Ford about his own impressions, thoughts, judgments and

actions. These verbatim quotations—which total about

300 words—are clearly expression and thus clearly copy-

rightable.

(2) The Nation used verbatim quotations from, or

descriptions of, works of the United States such as the

*4 Works of the United States Government would be produced in

any event due to governmental requirements. Copyright is not

needed to encourage their production. Therefore, the First Amend-

ment interests clearly outweigh any competing copyright interests

as regards works of the United States Government, so that there

may never be a copyright interest in such works.

memorandum of Henry S. Ruth (then a member of the

Special Prosecutor’s Office), statements of Mr. Ford

transcribed by the Hungate Committee and the written

memorandum which Mr. Ford prepared as Vice President

and read to Alexander Haig. Although these works of

the United States were included in the Ford manuscript,

they are clearly not copyrightable by petitioners under 17

U.S.C. § 105, and their use by The Nation is non-

infringing.

(3) The Nation used verbatim quotations from the

Ford manuscript which are the exact words of others

being reported by Mr. Ford. These quotations are novi

copyrightable by petitioners due to the exclusion from

p. 15, supra. Petitioners now attempt to argue that Mr.

Ford’s quotation of statements made to him by others

were not verbatim quotations, but his own reconstruction

of such statements. Pet. Br. at 25. But the District

Court “decline[d]” to find that such statements were in

fact Ford reconstructions. App. B at B11.*

(4) The Nation paraphrased or summarized Mr.

Ford’s own words both as to what he said, thought or did

and as to his perceptions of what others said, thought or

did. As a general matter, these summaries are properly

viewed as a legitimate description of “facts” or “ideas”

and not as an impermissible copying of “expression.”

This conclusion is borne out by a fair reading of the

comparison of the article and the Ford memoir submitted

by respondents. See Joint Appendix at JA627-JA704.

25 Moreover, petitioners’ argument is also answered by another

principle of copyright law: one who presents material as factual can-.

not claim, as against one who relied upon such representation, that

that which was copied constituted his own authorship rather than

mere fact. Mr. Ford clearly was presenting what others said as

factual. See Marshall v. Yates, 1983 Copyright Law Decisions

(CCH) { 25,594 (C.D. Cal. 1983); Mosley v. Follet, 209 U.S.P.Q.

1109 (S.D.N.Y. 1980); Huie v. NBC, 184 F. Supp. 198 (S.D.N.Y.

1960).

As facts or ideas, these passages are, of course, not copy-

rightable.

With respect to this fourth type of material drawn by

The Nation from the Ford manuscript, the petitioners

raise two related arguments about the application of the

statutory definitional doctrines to the facts of this case:

they claim that the Court of Appeals too narrowly lim-

ited the concept of expression and tov broadly defined the

concept of paraphrasing (as opposed to expression).

Neither of these arguments—which raise mixed fact/law

questions—is well-founded as amici will demonstrate

immediately below.

B. Expression: Selection, Arrangement and Structure

Petitioners argue that the Court of Appeals erred, as a

matter of law, because it did not consider an author’s

arrangement, selection and structure to be part of “ex-

pression” protected by copyright. Pet. Br. at 15. Peti-

tioners are correct that selection, arrangement and struc-

ture may be considered part of expression,” but they are

clearly wrong that this rule was ignored by the Court of

Appeals or improperly applied in this case.

First, the Court of Appeals correctly stated, App. A at

Al6, that:

The distinction between fact and expression is not

always easy to describe. There are, however, several

general principles according to which that boundary

may be mapped for works in which much factual

material is described. An author’s originality exists,

in part, in his overall arrangement of facts. The

structure he chooses for the work as a whole is im-

portant. (Emphasis supplied.) *"

28 Nimmer on Copyright, § 2.11[E] & § 13.03[A] (1984).

*7 Petitioners misleadingly focus on the Court of Appeals’ state-

ment that, in the context of news or history, expression must be

limited to “its barest elements—the ordering and choice of the

words themselves.” Pet. Br. at 15. But this statement clearly has

Second, the Court of Appeals then properly held, App. A

at Al6, that

In this case, there can be no concern that this mode

of expression was usurped; 7'he Nation article drew

only upon scattered parts and not the total entity

with its unique and protected mosaic. (Emphasis in

original. )

That the Court of Appeals correctly applied the rule to

the instant case is demonstrated by the comparison of the

article and the manuscript. Joint Appendix at JA627-

JA704. The pages of the Ford manuscript used by The

Nation (indicated within parentheses after the Ford

text) demonstrate a selection and arrangement of dis-

parate information by The Nation in a manner that did

not mimic the manuscript’s structure.**

As the Second Circuit has stated in a leading case on

news reporting and copyright, “the essence or purpose

of legitimate journalism is the reporting of objective

facts or developments, not the appropriation of the form

of expression used by the news source.” Wainwright

Securities Inc. v. Wall Street Transcript Corp., 558 F.2d

91, 96 (2d Cir. 1977), cert. denied, 434 U.S. 1014 (1978)

(contrasting defendant’s infringing use of plaintiff’s

copyrighted financial reports with the Wall Street Jour-

nal’s permissible use of those reports). Such news re-

porting of facts, not appropriation of expression, is pre-

cisely what occurred in this case.

to be read as synonymous with the statement quoted above, or as

dicta.

28It may be that an author’s selection is infringed where the

vast preponderance of his facts are appropriated. But here only

tiny, disparate fractions of the Ford manuscript were used. Cf.

Eckes v. Card Prices Update, 1984 Copyright Law Decisions (CCH)

| 25,672 (2d Cir. 1984) (infringement found where defendant took

substantially all of the facts from plaintiff’s compilation) ; United

States v. Hamilton, 583 F.2d 448 (9th Cir. 1978) (infringement

found where defendant cartographer took substantially all the facts

from plaintiff’s map).

C. Facts and Ideas: The Issue of Paraphrasing

Petitioners also maintain that the Court of Appeals

improperly allowed virtually unlimited paraphrasing

from the Ford manuscript. Pet. Br. at 21. But the Court

of Appeals made a proper ruling on paraphrasing. To

understand why, and to understand the status of para-

phrasing in the law of copyright, one must distinguish

between fictional works and factual works.

First, as to fictional works, Judge Learned Hand’s

famous abstractions test applies:

Upon any work, and especially upen a play, a great

number of patterns of increasing generality will fit

equally well, as more and more of the incident is left

out. The last may perhaps be no more than the most

general statement of what the play is about, and at

times might consist only of its title; but there is a

point in this series of abstractions where they are no

longer protected, since otherwise the playwright

could prevent the use of his ‘ideas,’ to which, apart

from their expression, his property is never

extended.*®

The abstractions test does not, of course, dictate where in

any given work the level of abstraction is such as to cross

the line from expression to idea. Professor Chafee made

some attempt to answer this most difficult question:

No doubt, the line does lie somewhere between the

author’s idea and the precise form in which he

wrote it down. I like to say that the protection

covers the ‘pattern’ of the work. . . the sequence of

events and the development of the interplay of char-

In a work of fiction, this means that at some point the

plot line, for example, will be sufficiently developed and

specific so that a copying will be regarded as the taking

of protectable “expression,” even though there has been

2° Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.

1930).

8° Chafee, Reflections on the Law of Copyright, 45 Colum. L. Rev.

503, 513 (1945).

no verbatim copying of the actual words employed by the

first author. In that context, paraphrasing may con-

stitute copyright infringement. That is what Learned

Hand had in mind when he said that copyright “cannot

be limited literally to the text, else a plagiarist would

escape by immaterial variations.” *' This is true because

a highly developed plot line is itself a work of authorsh-p

protectable by copyright. Thus, even without copying the

original words, to paraphrase a plot line can constitute a

taking of “expression.” *

But this test for fictional works is to be contrasted

with the correct approach to a factual work where the

so-called plot line, i.e., the sequence of events and inter-

play of characters, is based upon fact and not upon any

author’s fertile imagination. In those circumstances it is

only the precise words which describe the “plot,” and not

the plot or sequence of events itself, which constitute

the “expression” of a work of authorship. Thus, when, as

here, an article describes a historical sequence of events,

paraphrasing of factual information is both permissible,

and, indeed, sometimes necessary. Extensive verbatim

copying must occur to constitute copyright infringement,

and no such copying is contained in The Nation article.

Of course, if the defendant extensively copied virtually

the same words in a factual work as those employed by

the plaintiff, but simply made certain minor changes, the

plaintiff’s work of factual authorship, i.e., his choice of

words, has been substantially copied, and hence infringe-

ment should be found. But here (apart from the ver-

batim use of 300 of Mr. Ford’s words discussed below un-

der the fair use doctrine) there was a genuine restatement

of facts by The Nation and not an almost verbatim copy-

ing of Mr. Ford’s expression.*

81 Nichols y. Universal Pictures Corp., supra 45 F.2d at 121.

32 See, e.g., Twentieth Century-Fox Film Corp. v. MCA, Inc., 715

F.2d 1327 (9th Cir. 1983).

33 See Landsberg v. Scrabble Crossword Game Players, Inc., 736

F.2d 485, 488 (9th Cir. 1984) (legitimate paraphrasing different for

Ilf. THE USE OF THE COPYRIGHTABLE MATERIAL

BY THE NATION WAS FAIR

After correctly holding that only 300 words of the

approximately 2250 word Nation article constituted copy-

rightable material, the Court of Appeals further held

that The Nation’s use of those 300 words from the 200,-

000 word Ford memoir was “fair” within the meaning of

the statutory “fair use” doctrine which is now codified as

Section 107 of the Copyright Act. 17 U.S.C. § 107. This

ruling was correct.

The doctrine of fair use—like the statutory doctrines

used to define what is and is not copyrightable—seeks to

reconcile the tension between First Amendment and copy-

right interests. As Judge Kaufman stated, the doctrine

ensures a “proper balance of the citizenry’s need to be

informed and the author’s monopoly of his original writ-

ings ....” App. A at A24. And just as the statutory

doctrines defining what is and what is not protected by

First Amendment violations, so should the statutory fair

use doctrine.™

fictional and factual works). The cases cited by petitioners, all of

which involve takings of expression, fail to undermine the Court of

Appeals’ conclusion that The Nation’s paraphrasing of disparate facts

did not constitute infringement of copyrightable material. See Pet.

Br. 21-22. Those cases involved either the taking of virtually all of

plaintiff's selection of facts, W.H. Anderson Co. v. Baldwin Law Pub.

Co., 27 F.2d 82, 88 (6th Cir. 1928), or the virtually verbatim taking of

material, contiguous portions of plaintiff’s pictorial and oral expres-

sion. Flick-Reedy Corp. v. Hydro-Line Manufacturing Co., 351 F.2d

546, 548-49 (7th Cir. 1965), cert. denied, 383 U.S. 958 (1966) ; Wag-

ner V. Meccano Ltd., 246 F. 603, 604 (6th Cir. 1917), aff’g 234 F. 912

(S.D. Ohio 1916). Petitioner’s final case is inapposite since defend-

ant’s use was designed to appear to be a direct quote from plain-

tiff’s copyrighted work. Henry Holt & Co. v. Liggett & Myers

Tobaceo Co., 23 F. Supp. 302, 304 (E.D. Pa. 1938).

*4See Triangle Publications, Inc. v. Knight-Ridder Newspapers,

Inc., 626 F.2d 1171, 1181 (5th Cir. 1980) (Brown, J., concurring).

Section 107 provides that “[i]n determining whether the use made

of a work in any particular case is a fair use” courts should con-

sider four enumerated criteria. 17 U.S.C. §107(1)-(4). These

In light of standard news reporting practices, see pp.

2-4, supra, amici will briefly discuss the four express

criteria to be considered in a fair use analysis and

demonstrate that The Nation’s use of the Ford manu-

script was fair.

A. The Purpose and the Character of the Use: News

Reporting

The introductory phrase to Section 107 includes “news

reporting” as a paradigmatic example of fair use: “the

fair use'of a copyrighted work, including such use...

for . . . news reporting . .. is not an infringement of

the “commonly recognized” situations involving fair u

Sony Corp., supra, 104 S. Ct. at 807 (Blackmun, J.,

senting). Since virtually all news reporting is uer-

taken by profit-making enterprises, the Section 197(1)

suggestion that a “commercial nature” tends to Megate

fair use clearly has no application to genuine news

reporting.*

Petitioners incorrectly argue that, despite/its para-

digmatic status as news reporting, The Na ion article

was not a “productive use,” and this militayes against a

finding of fair use. Pet. Br. 34-35. This Yourt has held

that the fair use defense is not “rigidly £ircumscribed”

by the productive use requirement.** In/any event, The

Nation’s use was a productive use. A productive use in-

four criteria are not meant to be exhaustive, however. S.Rep. No.

94-478, 94th Cong., 1st Sess. 62 (1975) (statute provides “very

broad statutory explanation of what fair/use is and some of the

criteria applicable to it ...”) ; Nimmer orf Copyright, { 13.05[A} at

13-65 (1984). Nor is the failure to satisfy any one of the statutory

criteria determinative that the use jn question is not “fair.”

Rather, a court should consider all of the relevant criteria when

applying the “equitable rule of r n” analysis to a particular

claim of infringement. See Sony Cérp., supra, 104 S.Ct. at 792.

35 17 U.S.C. § 107(1) (courts, in/ non-news reporting contexts, to

evaluate “whether such use is of a commercial nature or is for non-

profit educational purposes” ).

36 Sony Corp., supra, 104 S. Ct. at 795 n.40.

volves the contribution of original elements of authorship

by the person asserting the fair use defense.*’ Almost all

of The Nation article involves legitimate paraphrasing

rather than verbatim copying. Such paraphrasing is it-

self a work of authorship, susceptible of copyright as a

derivative work.** Moreover, the selection and arrange-

ment of the matters taken from the 200,000 word Ford

manuscript into the 2250 word Nation article also con-

stitutes a work of authorship. As noted, p. 3, supra,

news is often based on books or manuscripts, and an es-

sential aspect of news reporting on such works is making

an independent judgment about what is important and

newsworthy and organizing the news report accordingly.

All of this surely adds up to a “productive use,” even if a

“productive use” were regarded as a condition to a fair

use claim.

B. The Nature of the Copyrighted Work: Fair Use

Applies to About-to-be-Published Works

This Court has stated that “[c]opying a [copyrighted]

news broadcast may have a stronger claim to fair use

than copying a motion picture.” This is a particular

application of the generally recognized principle that, in

analyzing the nature of a copyrighted: work under ‘the

second fair use factor, copying works of a factual nature

should be given broader leeway under the fair use doc-

trine than copying works of a fictional nature. 17

U.S.C. § 107(2). Here, especially, the nature of the copy-

righted work used (the factual memoir of a former

President on, inter alia, the resignation and pardon of

his predecessor) strongly supports the purpose of the use

(news reporting).

37 See Nimmer on Copyright, § 13.05[A][1] (1984).

38 See Nimmer on Copyright, § 3.08 (1984).

8° Sony Corp., supra, 104 S. Ct. at 795 n.40 (1984).

*° See New York Times Co. v. Roxbury Data Int

F. Supp. 217 (D.N.J. 1977). nterface, Inc., 434

In arguing against the defense of fair use/ under the

second fair use factor, petitioners and amicj in /support

of petitioners have placed great reliance n/the fact

that the Ford memoir was unpublished /prior to The

Nation publication. This reliance displays a misunder-

standing of the applicable principles of copyright law.

First, petitioners are simply wrong in their assertion

that under common law copyright (which by definition *

consisted of actions for infringement of unpublished

works) the defense of fair use was never available. See

Pet. Br. at 30. They do not cite a single case which holds

that the defense of fair use at common law is unavailable

as to the copying of an unpublished work in circum-

stances where, had the plaintiff's work been published,

fair use would have been recognized.*? On the other hand,

there are a number of common law copyright cases where

a fair use defense was recognized for use of unpublished

works.“

41 See Nimmer on Copyright, § 2.02 (1984).

42 Although petitioners cite no such case, amicus Association of

American Publishers (AAP) does purport to cite three such cases:

Press Pub. Co. V. Monroe, 73 Fed. 196 (2d Cir. 1896) ; Gelding v. RKO

Radio Pictures, Inc., 198 P.2d 153, 163 (Cal. Dist. Ct. App. 1948)

aff'd, 221 P.2d 95 (Cal. 1950); Stanley v. Columbia Broadcasting

System, Inc., 35 Cal.2d 652, 661, 221 P.2d 73, 77-78 (Cal. 1950)

(en banc). See AAP Br. at 14. In fact, the Press Pub. case does

not deal with fair use. The defendant published the plaintiff's

entire work, so that ffir use would not be appropriate regardless

of whether plaintiff’s/work had been published prior thereto. The

only significance of fhe fact t plaintiff's work was unpublished

was that this was @# necessary condition to the assertion of a claim

for common law @pyright. The Golding and Stanley cases were

decided at a timd when California operated under a statute which

was more ctive than common law or statutory copyright.

They are thus fot relevant to the present issue. For an explanation

of this earlier/statute, see Weitzenkorn Vv. Lesser, 40 Cal.2d 778, 256

P.2d 947 (1973).

43 See, ef, Hemingway v. Random House, Inc., 58 Misc.2d 462,

279 N.Y Sad 51 (Sup. Ct. 1967), aff'd, 285 N.Y.S.2d 568 (App. Div.

Second, petitioners rely upon a passage from the Sen-

ate Report on the current Copyright Act which states

that the “applicability of the fair use doctrine to unpub-

lished works is narrowly limited. ...”** But this state-

ment does not affect the valid fair use defense in this

case. In the first place, the House Report never adopted

this statement,” although it does repeat most of the other

passages in the Senate Report.*

But even if the passage in the Senate Report were

regarded as adopted by the House, it has no applicability

to this case. One must look to the reason stated as to

why the fair use doctrine is to be limited when applied

to unpublished works. It is because “this is the result of

a deliberate choice on the part of the copyright owner.” *

unecessary to reach the defendant’s fair use defense because of its

finding of an implied license to the defendant. Fendler v. Morosco

263 N.Y. 281, 171 N.E. 56 (1930), relied upon by petitioners be-

cause of its statement (253 N.Y. at 291) that “perhaps any use

that others made of it might be unfair” (Pet. Br. at 30, but with

omission of the word “perhaps”), in fact invoked a fair use con-

cept by reason of its conclusion that defendant may prevail because

“where resemblance is close the material is trivial. . .” 253 N.Y. at

294. This, in effect, is an application of the third fair use factor,

which turns on “the amount and substantiality of the portion

used. . .” 17 U.S.C. § 107(3). Similarly, in Malkin v. Dubinsky,

203 N.Y.S.2d 501, 507 (Sup. Ct. 1960), in holding for the defend-

ant, the court held that “plaintiff’s claims involve, at best . . . some

details which in the total context are trivial.” Once again, the third

fair use factor was, in effect, invoked.

4 S.Rep. No. 94-473, 94th Cong., Ist Sess. 64 (1975). See Pet.

Br. at 30.

** The AAP Amicus Brief argues that the House in effect en-

dorsed this position by stating its approval of prior 1967 House

and 1975 Senate Reports. AAP Br. at 7. It is clear, however, that

the passage supposedly stating such approval (H.R. Rep. No. 94-

mie 67) in fact fe addressed only to fair use in the classroom

con j

** This failure Yo repeat the quoted passage implies a contrary

intent on the pa pt the House. See Sony Corp., supra, 104 S. Ct.

at 805 (Biackmun; J., dissenting) .

47 S. Rep. N, . 94-473, supra, at 64.

/ 26

The “deliberyf.

choice that %he defendant shall not publish the plaintiff's

work. That. is always the case when the defense of fair

use is invoked. It is rather that the plaintiff has made

the “deliberate choice” that the work is unpublished and

is to remain unpublished.** In those circumstances, where

the author intends to keep his work entirely private, as in

the case of a diary or letters, the fair use doctrine may

be narrowed.”

That, however, is not this case. The author, Gerald

Ford, clearly did not intend to keep his manuscript con-

/ fidential. He wished it to be read by the public. The fact

that he did not wish The Nation to be the publisher of

any of his material does not go to the issue of fair use;

such opposition by the copyright holder to publication

always arises in the context of an/unlicensed defendant.

Petitioners have made much of the fact that the Ford

memoir was “soon to be publised” as a reason why

The Nation could not invoke the fair use defense. Pet.

Br. at 38. In fact, as indicated above, this circumstance

cuts in exactly the opposite direction. The very fact that

the work was seon to be published indicates that the in-

formation contained thereiyi was not regarded as mate

rial which the author wisl/ed to keep from the world, and

hence, the defense of faif use is not barred or narrowed

by the unpublished statws of the work.

The reasons of “logic and policy” which petitioners

offer to support the supposed fair use distinction between

*SIt is this concept of intent to keep confidentia! indefinitely

which is referred to in the passage from Nimmer on Copyright

quoted by Petitioners: “. . . the scope of the fair use doctrine is

considerably narrower with respect to unpublished works which

are held confidential by their copyright owners ....” Pet. Br. at 31

(emphasis added), quoting from Nimmer on Copyright, § 13.05[A)}

at 13-73 (1984).

49 The quotation from Millar v. Tayler, 4 Burr. 2303, 98 Eng. Rep.

201 (1769 K.B.), see Amicus Brief of Volunteer Lawyers for the

Arts, Inc. at 4, refers to this concept of total confidentiality and

lack of intent to publish.

choice” referred to is obviously not the |

published and unpublished works are also easily rebutted.

Id. at 31. Petitioners argue, first, that “an author who

has published a work may be deemed to have consented

to its ‘fair use’ by others.” Jd. This is manifestly a fic-

tion. The applicability of the fair use defense is simply

not triggered by the consent of the author.®’ The “second

and more important reason” stated by petitioners to sup-

port their argument is that for an unauthorized person

to be the first publisher of the author’s expression in-

fringes his right of first publication. Pet. Br. at 31. The

fallacy of this argument is obvious. Unless one of the

rights conferred by the Copyright Act has prima facie

been violated (whether it be the right of first publication,

the right of reproduction, etc.) there would be no occa-

sion to raise the defense of fair use. @&Vhen the defense

of fair use is appropriate, it may be asserted despite the

fact that there has been a literal violation of one of the

exclusive rights conferred upon an author by Section 106

of the Copyright Act. Thus, Section 107, the fair use

provision, begins: “Notwithstanding the provisions of

section 106... .”™' )

80 See Nimmer on Copykaht, $13.05 at p. 13-63 (1984).

5! An analysis unde e second fair use criterion should not con-

sider the motives of t&e third person who removed the Ford manu-

script from the Petitioner’s possession, or the propriety of his

actions. Whatever remedies might be available against such a per-

son (eg., for conversion, trespass to chattels, breach of a con-

fidential relationship, or breach of the terms of a contract) can

have no bearing upon the respondent’s right to assert the defense

of fair use. There is no evidence in the record that remotely sug-

gests that respondents were engaged in, or aided in any manner,

the taking of the manuscript from petitioners’ possession. Review

of an unsolicited document is a journalistic practice. See p. 3,

supra; Epstein, “The American Press: Some Truths About Truths”

in Ethics and the Press (J. Merrill & R. Barney, eds. 1975). To

give any weight to the fact that the manuscript was given to The

Nation unsolicited by a third party would undermine journalistic

practice and thus the paradigmatic fair use of news reporting rec-

ognized by the Congress. 17 U.S.C. $107. In addition, the mere

fact that respondents had reason to know that petitioners would

object to publication of The Nation article does not undermine their

C. The Amount and Substantiality of the Portion Used

Only “the portion used” of “the copyrighted work” is

to be taken into account in determining amount and sub-

stantiality under the third fair use factor. 17 U.S.C.

§ 107(3). That portion used which is not copyrightable,

and therefore not protected by the copyright in “the copy-

righted work,” is not to be taken into account in deter-

mining substantiality. Here, again, petitioners err in

applying their “totality” theory. See pp. 12-14, supra.

Thus, similarity of ideas and facts (as distinguished

from their expression)—and similarity of works of the

United States Government and similarity of verbatim

statements of persons other than Mr. Ford—as between

the article and the manuscript are not to be taken into

account in determining such substantiality.

In assessing the instant case under this criterion, it

will suffice to reiterate that the 300 copyrightable words

quoted in The Nation article are a tiny fraction of the

200,000 word Ford manuscript and are not taken from

any given integrated passage. They consist rather of the

sum total of a line or several lines copied from numerous

passages in the Ford memoir. Each passage standing by

itself would clearly constitute fair use. Since they are

not joined together in a single passage in The Nation

article nor taken from a single passage in the Ford

memoir and since none of the copied passages individually

exceed the bounds of fair use, this Court should conclude

that cumulatively the use remains “fair.”

right to assert a fair use defense since, when one relies on the fair

use defense, there is always reason to know the copyright owner

may object to the use.

52 This Court may take judicial notice that just this sort of quota-

tion of passages without the consent of the copyright holder rou-

tinely occurs in book reviews. Similarly, an unauthorized biography

of a famous person may well quote rather extensive passages from

that person’s antobiography without consent. A rule which pre-

cluded these widely-followed practices would run counter to the

underlying purpose of copyright in that it would stultify other

kinds of legitimate authorship.

D. The Effect of the Use Upon the Potential Market

for or Value of the Copyrighted Work

The fourth fair use factor, 17 U.S.C. § 107(4), often

referred to as the most significant of the factors, was

incorrectly analyzed by the District Court precisely be-

cause of its erroneous “totality” theory. The District

Court concluded: the “effect of The Nation’s extensive

use of the Nixon pardon material caused the Time agree-

ment to be aborted and thus diminished the value of the

rial” referred to by the District Court as contained in

The Nation article for the most part consisted of non-

infringing paraphrases of noncopyrightable facts and

ideas, works of the United States Government, and state-

ments made by persons other than Mr. Ford which are

not protected by copyright.

Although the Time agreement was aborted after pub-

lication of The Nation article, it is important to recall

that Time initially sought simply to move forward

the date of its serialization. Petitioner Harper & Row

refused, and it was this refusal which caused Time to

cancel serialization. It is also reasonable to conclude that

Time’s ultimate objection to serialization was to the pre-

mature disclosure of the facts relating to the Nixon par-

don. If such facts had been disclosed by The Nation with-

out also including any verbatim text at all from the Ford

manuscript, there is no reason to conclude that Time’s

decision to abort would have been otherwise. Thus the

“use” of 300 words of protectable material from the Ford

manuscript should not be viewed as having more than a

de minimus impact upon the value of the copyrighted

work. There is no more reason to conclude that the use

of unprotected facts relating to the resignation and par-

don should be the basis for liability by The Nation than

there would be to hold Newsweek magazine liable to

58 Triangle Publicoiions, Inc. v. Knight-Ridder Newspapers, Inc.,

626 F.2d 1171 (5th Cir. 1980); Time Inc. v. Bernard Geis Asso-

ciates, 293 F. Supp. 130 (S.D.N.Y. 1968).

Time because an exclusive news story published by News-

week has an adverse impact upon the potential market

for or value of Time.

E. Fair Use Should Be Found To Avoid First Amend-

ment Questions

The case for finding a fair use for the 300 copyright-

able words from the Ford manuscript is compelling. But

even if it were a close question, this Court should hold

the use fair to avoid reaching a constitutional question.

The 300 copyrightable words arguably present a situation

where ideas and expression are inextricably intermingled

and where, therefore, the First Amendment interest

should be held to outweigh the copyright interest.™

54 An example of such a case is Time Inc. v. Bernard Geis Asso-

ciates, 293 F. Supp. 130 (S.D.N.Y. 1968) in which the defendant

reproduced frames from the Zapruder home movie films of the John

Kennedy assassination without permission from the copyright

owner. Although the court invoked the doctrine of fair use rather

than the First Amendment in holding for defendant, the case has

since been viewed as an example of a First Amendment privilege

to copy expression where the idea cannot adequately be conveyed

without reproducing the expression in which it was contained. See

Iowa State University Research Foundation, Inc. Vv. American

Broadcasting Cos., 621 F.2d 57 (2d Cir. 1980); Pacific and South-

ern Co. V. Duncan, 572 F. Supp. 1186, 1193, n.6 (N.D. Ga. 1983).

Other courts have suggested a possible receptivity to this doctrine in

limitec circumstances, although none has yet invoked it because

the facts in each such case did not appear to involve the inex-

tricable intermingling of idea and expression. See Sid & Marty

Krofft Television Prods., Inc. ¥ McDonald’s Corp., 562 F.2d 1157

(9th Cir. 1977) ; Roy Export Co. Establishment v. Columbia Broad-

casting Sys., Inc., 672 F.2d 1095 (2d Cir. 1982); Encyclopedia

Britannica Educational Corp. v. Crooks, 542 F. Supp. 1156 —

(W.D.N.Y. 1982); Pacific and Southern Co., Inc. Vv. Duncan, 1982

Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d

1171, 1182 (5th Cir. 1980) (Brown, J., concurring).

The present case may well present an example of such inextrica-

ble intermingling. Since the book was in fact written by Mr. Ford,

significant ideas conveyed were Mr. Ford’s own views as to the

incidents discussed. The “idea” of Mr. Ford’s views as to his own

conduct is in part wedded to what he has to say about such conduct,

CONCLUSION

For the reasons stated above, amici curiae respectfully

request that the judgment of the United States Court of

Appeals for the Second Circuit be affirmed.

Respectfully submitted,

Of Counsel: MELVILLE B. NIMMER

ALICE NEFF LUCAN (Counsel of Record)

Assistant General Counsel SIDLEY & AUSTIN

The Gannett Company, Inc. 2049 Century Park East

Lincoln Tower Los Angeles, CA 90067

Rochester, NY 14604 (213) 553-8100

RoBERT C. LOBDELL BENJAMIN W. HEINEMAN, JR.

JEFFREY S. KLEIN ALAN C, GEOLOT

Los Angeles Times SIDLEY & AUSTIN

Times Mirror Square 1722 Eye Street, N.W.

Los Angeles, CA 90053 Washington, D.C. 20006

DIANA M. DANIELS Attorneys for Amici Curiae

Vice President & Counsel

Newsweek, Inc.

444 Madison Avenue

New York, NY 10022

KATHARINE P. DARROW

GEORGE FREEMAN

The New York Times

229 West 43rd Street

New York, NY 10036

BOISFEUILLET JONES, JR.

CAROL D. MELAMED

The Washington Post

1150 15th Street, N.W.

Washington, D.C. 20071

August 20, 1984

ie., his “expression.” This is not to say that in order to convey

that kind of an idea it is necessary to quote verbatim the entire

Ford text. It is to suggest that without some quotations of Mr.

Ford’s precise words, the “idea” of his mental processes in connec-

tion with a given incident cannot adequately be conveyed. Argu-

ably, the verbatim use by The Nation of 300 of Mr. Ford’s words is

protected by the First Amendment when idea and expression are so

intermingled.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.