On this day in 1985, the U.S. Supreme Court held that the First Amendment did not protect The Nation magazine from liability for copyright infringement for publishing unauthorized excerpts from the unpublished memoirs of former President Gerald R. Ford. Harper & Row Publishers, Inc. v. Nation Enterprises. The Nation published an article that used about 300 words of verbatim quotes from former President Ford’s 200,000-word unpublished autobiography, “A Time To Heal.” At the time of The Nation’s publication of the article, Time Magazine had already agreed to purchase the exclusive right to print prepublication excerpts from the copyright holders. However, as a result of The Nation’s piece, Time canceled the agreement. The Nation claimed that its use of the excerpts, which made up about 15% of the entire article, was fair use under § 107 of the Copyright Act. Justice O’Connor, writing for the Court, said that The Nation article, which was “timed to ‘scoop’” the Time article, “took what was essentially the heart of the book,” and The Nation “effectively arrogated to itself the right of first publication.” The Nation’s use of the excerpts was not fair use.
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