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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 539

## Text

| 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
COPYRIGHT ON WHAT IS COPYRIGHT-
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

ii
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:
Sn

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,
8
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 -

12

18

21

11

11
16

iv

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

v

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

vi

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

2

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

3

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.

4

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-

5

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

6

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
Copyright Clause. Since the only powers of the Federal Govern-
ment are those conferred by the Constitution, it is precisely those
conferred powers which are limited by the Bill of Rights.

/

/
/

7

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).

8

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).

9

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
copyright laws are precluded from granting a copyright
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

10

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
copyright side of the balance—would also be severely
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).

11

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

12

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).

13

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.

14

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.

— —

15

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.

16

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
copyright of material not original to the author. See
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).

4

17

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

18

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).

19

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-
ee

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).

20

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

21

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
copyright should be construed so as to avoid questions of

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

22

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
copyright.” 17 U.S.C. § 107. News reporting is one 0
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

24

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.

25

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.

f
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 |

27

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

28

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.

29

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
copyright.” App. B at B8. But the “Nixon pardon mate-
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).

80

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
Copyright Rep. (CCH) § 25,421 (N.D. Ga. 1982). Cf. Triangle
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,

31

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1368%3A10. Public record. Not legal advice.