In 1977, former President Ford contracted with Harper & Row (H&R) to publish his as yet unwritten memoirs. Shortly before a previously agreed to Time Magazine excerpted release, an unauthorized source provided The Nation Magazine with the unpublished Ford manuscript. As a result of the publication of The Nation’s article, Time canceled its article. H&R then brought suit in Federal District Court against the publishers of The Nation, alleging violations of the Copyright Act (Act). The District Court held that the Ford memoirs were protected by copyright at the time of The Nation publication and that The Nation’s use of the copyrighted material constituted an infringement under the Act. The Court of Appeals reversed, holding that The Nation’s publication of the 300 to 400 words it identified as copyrightable expression was sanctioned as a “fair use” of the copyrighted material under 107 of the Act. The Supreme Court held that The Nation’s article was not a “fair use” sanctioned by the fair use provisions in 17 USC 107.

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