harper row nation enterprises argued november decided may former president ford contracted petitioners publish yet unwritten memoirs agreement gave petitioners exclusive first serial right license prepublication excerpts two years later memoirs nearing completion petitioners copyright holders negotiated prepublication licensing agreement time magazine time agreed pay advance balance publication exchange right excerpt words ford account pardon former president nixon shortly time article scheduled release unauthorized source provided nation magazine unpublished ford manuscript working directly manuscript editor nation produced article least words consisted verbatim quotes copyrighted expression taken manuscript timed scoop time article result publication nation article time canceled article refused pay remaining petitioners petitioners brought suit federal district respondent publishers nation alleging inter alia violations copyright act act district held ford memoirs protected copyright time nation publication respondents use copyrighted material constituted infringement act awarded actual damages appeals reversed holding nation publication words identified copyrightable expression sanctioned fair use copyrighted material act section provides notwithstanding provisions giving copyright owner exclusive right reproduce copyrighted work prepare derivative works based copyrighted work fair use copyrighted work purposes comment news reporting infringement copyright section provides determining whether use fair factors considered shall include purpose character use nature copyrighted work substantiality portion used relation copyrighted work whole effect potential market value copyrighted work held nation article fair use sanctioned pp using generous verbatim excerpts ford unpublished expression lend authenticity account forthcoming memoirs nation effectively arrogated right first publication important marketable subsidiary right pp though right first publication like rights enumerated expressly made subject fair use provisions fair use analysis must always tailored individual case nature interest stake highly relevant whether given use fair unpublished nature work key though necessarily determinative factor tending negate defense fair use ordinary circumstances author right control first public appearance undisseminated expression outweigh claim fair use pp view first amendment protections embodied act distinction copyrightable expression uncopyrightable facts ideas latitude scholarship comment traditionally afforded fair use warrant expanding respondents contend done fair use doctrine amounts public figure exception copyright whether verbatim copying public figure manuscript given case fair must judged according traditional equities fair use pp taking account four factors enumerated especially relevant determining fair use leads conclusion use question fair fact news reporting general purpose nation use simply one factor nation every right first publish information went beyond simply reporting uncopyrightable information actively sought exploit headline value infringement making news event unauthorized first publication fact publication commercial opposed nonprofit separate factor tending weigh finding fair use fair use presupposes good faith nation unauthorized use undisseminated manuscript merely incidental effect intended purpose supplanting copyright holders commercially valuable right first publication ii may greater need disseminate works fact works fiction nation taking copyrighted expression exceeded necessary disseminate facts infringed copyright holders interests confidentiality creative control first public appearance work iii although verbatim quotes question insubstantial portion ford manuscript qualitatively embodied ford distinctive expression played key role infringing article iv effect nation article market copyrighted work time cancellation projected article refusal pay direct effect infringing publication copyright holder establishes causal connection infringement loss revenue burden shifts infringer show damage occurred taking copyrighted expression petitioners established prima facie case actual damage respondents failed rebut important negate claim fair use need shown challenged use become widespread adversely affect potential market copyrighted work nation liberal use verbatim excerpts posed substantial potential damage marketability first serialization rights copyrighted work pp delivered opinion burger blackmun powell rehnquist stevens joined brennan filed dissenting opinion white marshall joined post edward miller argued cause petitioners briefs barbara hufham david otis fuller floyd abrams argued cause respondents brief devereux chatillon carol rinzler andrew deutsch leon friedman briefs amici curiae urging reversal filed association american publishers jon baumgarten charles lieb volunteer lawyers arts fred koenigsberg briefs amici curiae urging affirmance filed pen american center stephen gillers gannett et al melville nimmer benjamin heineman alice neff lucan robert lobdell justice delivered opinion case requires us consider extent fair use provision copyright revision act hereinafter copyright act sanctions unauthorized use quotations public figure unpublished manuscript march undisclosed source provided nation magazine unpublished manuscript time heal autobiography gerald ford working directly purloined manuscript editor nation produced short piece entitled ford memoirs behind nixon pardon piece timed scoop article scheduled shortly appear time magazine time agreed purchase exclusive right print prepublication excerpts copyright holders harper row publishers hereinafter harper row reader digest association hereinafter reader digest result nation article time canceled agreement petitioners brought successful copyright action nation appeal second circuit reversed lower finding infringement holding nation act sanctioned fair use copyrighted material granted certiorari reverse february shortly leaving white house former president gerald ford contracted petitioners harper row reader digest publish yet unwritten memoirs memoirs contain significant hitherto unpublished material concerning watergate crisis ford pardon former president nixon ford reflections period history morality personalities involved app pet cert addition right publish ford memoirs book form agreement gave petitioners exclusive right license prepublication excerpts known trade first serial rights two years later memoirs nearing completion petitioners negotiated prepublication licensing agreement time weekly news magazine time agreed pay advance additional publication exchange right excerpt words ford account nixon pardon issue featuring excerpts timed appear approximately one week shipment full length book version bookstores exclusivity important consideration harper row instituted procedures designed maintain confidentiality manuscript time retained right renegotiate second payment material appear print prior release excerpts two three weeks time article scheduled release unidentified person secretly brought copy ford manuscript victor navasky editor nation political commentary magazine navasky knew possession manuscript authorized manuscript must returned quickly source avoid discovery supp sdny hastily put together believed real hot news story composed quotes paraphrases facts drawn exclusively manuscript ibid navasky attempted independent commentary research criticism part need speed make news publish ing advance publication ford book app article reprinted appendix opinion appeared april result nation article time canceled piece refused pay remaining petitioners brought suit district southern district new york alleging conversion tortious interference contract violations copyright act bench trial district judge found time heal protected copyright time nation publication respondents use copyrighted material constituted infringement copyright act protecting respectively right reproduce work right license preparation derivative works right first distribution copyrighted work public app pet cert district rejected respondents argument nation piece fair use sanctioned act though billed hot news article contained new facts magazine published article profit taking heart published work unauthorized use caused time agreement aborted thus diminished value copyright although certain elements ford memoirs historical facts memoranda per se copyrightable district held totality facts memoranda collected together ford reflections made value nation totality protected copyright laws awarded actual damages divided panel appeals second circuit reversed majority recognized ford verbatim reflections original expression protected copyright held district erred assuming coupling reflections uncopyrightable fact transformed information copyrighted totality majority noted copyright attaches expression facts ideas concluded avoid granting copyright monopoly facts underlying history news expression works must confined barest elements ordering choice words thus similarities original challenged work traceable copying paraphrasing uncopyrightable material historical facts memoranda public documents quoted remarks third parties must disregarded evaluating whether second author use fair infringing uncopyrighted material stripped away article nation contains approximately words copyrighted remaining paragraphs scattered phrases verbatim quotations memoirs appeared previously publications include short segment ford conversations henry kissinger several individuals ford impressionistic depictions nixon ill phlebitis resignation pardon nixon character constitute major portion material parts magazine piece must focus examination question whether fair use copyrighted matter ii agree appeals copyright intended increase impede harvest knowledge believe second circuit gave insufficient deference scheme established copyright act fostering original works provide seed substance harvest rights conferred copyright designed assure contributors store knowledge fair return labors twentieth century music aiken article constitution provides congress shall power promote progress science useful arts securing limited times authors inventors exclusive right respective writings discoveries section copyright act confers bundle exclusive rights owner copyright copyright act rights publish copy distribute author work vest author original work time creation practice author commonly sells rights publishers offer royalties exchange services producing marketing author work copyright owner rights however subject certain statutory exceptions among codifies traditional privilege authors make fair use earlier writer work addition author may copyright facts ideas copyright limited aspects work termed expression display stamp author originality creation nonfiction work even compilation pure fact entails originality see schroeder william morrow copyright gardening directory cf lithographic sarony originator photograph may claim copyright work copyright holders time heal complied relevant statutory notice registration procedures see app pet cert thus dispute unpublished manuscript time heal whole protected unauthorized reproduction respondents dispute verbatim copying excerpts manuscript original form expression constitute infringement unless excused fair use see nimmer copyright hereinafter nimmer yet copyright prevent subsequent users copying prior author work constituent elements original example quotations borrowed rubric fair use copyrighted works facts materials public domain long use unfairly appropriate author original contributions ibid latman fair use copyrighted works reprinted study copyright law revision studies nos prepared senate committee judiciary hereinafter latman perhaps controversy lower courts case copyrightability aptly styled dispute whether nation appropriation unoriginal uncopyrightable elements encroached originality embodied work whole especially realm factual narrative law currently unsettled regarding ways uncopyrightable elements combine author original contributions form protected expression compare wainwright securities wall street transcript protection accorded author analysis structuring material marshaling facts hoehling universal city studios limiting protection ordering choice words see nimmer need reach issues however nation admitted lifting verbatim quotes author original language totaling words constituting nation article using generous verbatim excerpts ford unpublished manuscript lend authenticity account forthcoming memoirs nation effectively arrogated right first publication important marketable subsidiary right reasons set forth find use copyrighted manuscript even stripped verbatim quotes conceded nation copyrightable expression fair use within meaning copyright act iii fair use traditionally defined privilege others owner copyright use copyrighted material reasonable manner without consent ball law copyright literary property hereinafter ball statutory formulation defense fair use copyright act reflects intent congress codify doctrine nimmer section requires determination whether particular use fair statute notes four nonexclusive factors considered approach intended restate judicial doctrine fair use change narrow enlarge way hereinafter house report author consent reasonable use copyrighted works ha always implied courts necessary incident constitutional policy promoting progress science useful arts since prohibition use inhibit subsequent writers attempting improve upon prior works thus frustrate ends sought attained ball professor latman study doctrine fair use commissioned congress revision effort see sony america universal city studios dissenting opinion summarized prior law turning importance material copied performed point view reasonable copyright owner words reasonable copyright owner consented use latman reviewer may fairly cite largely original work design really truly use passages purposes fair reasonable criticism hand clear thus cites important parts work view criticise supersede use original work substitute review use deemed law piracy folsom marsh cas cc mass perhaps fair use doctrine predicated author implied consent reasonable customary use released work public consumption fair use traditionally recognized defense charges copying author yet unpublished works copyright property author intellectual creation absolute voluntarily part ed american tobacco werckmeister nimmer absolute rule however tempered practice equitable nature fair use doctrine given case factors implied consent de facto publication performance dissemination work may tip balance equities favor prepublication use see copyright law revision part discussion comments report register copyrights general revision copyright law comm print discussion suggesting works disseminated public form constituting technical publication nevertheless subject fair use nimmer never seriously disputed fact plaintiff work unpublished factor tending negate defense fair use ibid publication author expression authorized dissemination seriously infringes author right decide whether made public factor present fair use published works respondents contend however congress including first publication among rights enumerated expressly subject fair use intended fair use apply pari materia published unpublished works copyright act support proposition copyright act represents culmination major legislative reexamination copyright doctrine see mills music snyder sony america universal city studios dissenting opinion among innovations eliminated publication dividing line common law statutory protection house report extending statutory protection works time creation also recognized first time distinct statutory right first publication previously element protections afforded unpublished works report house committee judiciary confirms clause section establishes exclusive right publications provision copyright owner right control first public distribution authorized copy work though right first publication like rights enumerated expressly made subject fair use provision fair use analysis must always tailored individual case nimmer nature interest stake highly relevant whether given use fair beginning entrusted task revision recognized overbalancing reasons preserve common law protection undisseminated works author successor chooses disclose copyright law revision report register copyrights general revision copyright law comm print right first publication implicates threshold decision author whether form release work first publication inherently different rights one person first publisher contract time illustrates commercial value right lies primarily exclusivity potential damage author judicially enforced sharing first publication right unauthorized users manuscript substantial balance equities evaluating claim fair use inevitably shifts senate report confirms congress intended unpublished nature work figure prominently fair use analysis discussing fair use photocopied materials classroom committee report key though necessarily determinative factor fair use whether work available potential user work print unavailable purchase normal channels user may justification reproducing applicability fair use doctrine unpublished works narrowly limited since although work unavailable result deliberate choice part copyright owner ordinary circumstances copyright owner right first publication outweigh needs reproduction classroom purposes senate report even legislative history entirely silent bound conclude congress characterization restatement effect preserve existing law concerning fair use unpublished works types protected works change narrow enlarge conclude unpublished nature work key though necessarily determinative factor tending negate defense fair use senate report see nimmer patry fair use privilege copyright law hereinafter patry also find unpersuasive respondents argument fair use may made manuscript ground author demonstrated interest nonpublication argument assumes unpublished nature copyrighted material relevant letters confidential writings intended dissemination true copyright often enlisted service personal privacy see brandeis warren right privacy harv rev commercial guise however author right choose publish less deserving protection period encompassing work initiation preparation grooming public dissemination crucial one literary endeavor copyright act accords copyright owner right control first public distribution work house report echos common law concern author copyright owner retain control throughout critical stage see generally comment stage publication fair use factor harper row publishers nation enterprises john rev obvious benefit author public alike assuring authors leisure develop ideas free fear expropriation outweighs news value gained premature publication author expression see goldstein copyright first amendment colum rev absolute protection common law accorded published works justified brevity expedience author control first public distribution implicates personal interest creative control property interest exploitation prepublication rights valuable serve valuable adjunct publicity marketing see belushi woodward supp dc successful marketing depends coordination serialization release public marks subsidiary rights permissions happens book publishing grannis ed exploitation subsidiary rights necessary financial success new books ordinary circumstances author right control first public appearance undisseminated expression outweigh claim fair use respondents however contend first amendment values require different rule circumstances case thrust decision scope fair use undoubtedly wider information conveyed relates matters high public concern consumers union general signal construing case allowing advertiser quote consumer reports cert denied respondents advance substantial public import subject matter ford memoirs grounds excusing use ordinarily pass muster fair use piracy verbatim quotations purpose scooping authorized first serialization respondents explain copying ford expression essential reporting news story claims book represents respondents view facts contained ford memoirs precise manner expressed newsworthy say brief respondents respondents argue public interest learning news fast possible outweighs right author control first publication second circuit noted correctly copyright dichotomy strike definitional balance first amendment copyright act permitting free communication facts still protecting author expression author may copyright ideas facts narrates see new york times brennan concurring copyright laws restrictions freedom speech copyright protects form expression ideas expressed nimmer long ago observed news element information respecting current events contained literary production creation writer report matters ordinarily publici juris history day international news service associated press copyright assures write publish factual narratives time heal may least enjoy right market original expression contained therein compensation investment cf zacchini broadcasting respondents theory however expand fair use effectively destroy expectation copyright protection work public figure absent protection little incentive create profit financing memoirs public denied important source significant historical information promise copyright empty one avoided merely dubbing infringement fair use news report book see wainwright securities wall street transcript cert denied respondents assert actual necessity circumventing copyright scheme respect types works users issue author publisher invested extensive resources creating original work poised release public legitimate aim served right first publication fact words author chosen clothe narrative may newsworthy independent justification unauthorized copying author expression prior publication paraphrase another recent second circuit decision respondent possessed unfettered right use factual information revealed memoirs purpose enlightening audience claim need bodily appropriate ford expression information utilizing portions actual manuscript public interest free flow information assured law refusal recognize valid copyright facts fair use doctrine license corporate theft empowering ignore copyright whenever determines underlying work contains material possible public importance iowa state university research foundation american broadcasting citations omitted haste disseminate news forgotten framers intended copyright engine free expression establishing marketable right use one expression copyright supplies economic incentive create disseminate ideas stated mazer stein economic philosophy behind clause empowering congress grant patents copyrights conviction encouragement individual effort personal gain best way advance public welfare talents authors inventors science useful arts immediate effect copyright law secure fair return author creative labor ultimate aim incentive stimulate creation useful works general public good moreover freedom thought expression includes right speak freely right refrain speaking wooley maynard burger suggest right speak sanction abuse copyright owner monopoly instrument suppress facts words new york chief judge fuld essential thrust first amendment prohibit improper restraints voluntary public expression ideas shields man wants speak publish others wish quiet necessarily within suitably defined areas concomitant freedom speak publicly one serves ultimate end freedom speech affirmative aspect estate hemingway random house view first amendment protections already embodied copyright act distinction copyrightable expression uncopyrightable facts ideas latitude scholarship comment traditionally afforded fair use see warrant expanding doctrine fair use create amounts public figure exception copyright whether verbatim copying public figure manuscript given case fair must judged according traditional equities fair use iv fair use mixed question law fact pacific southern duncan district found facts sufficient evaluate statutory factors appellate need remand factfinding may conclude matter law challenged use es qualify fair use copyrighted work thus whether nation article constitutes fair use must reviewed light principles discussed factors enumerated section meant exclusive ince doctrine equitable rule reason generally applicable definition possible case raising question must decided facts house report four factors identified congress especially relevant determining whether use fair purpose character use nature copyrighted work substantiality portion used relation copyrighted work whole effect potential market value copyrighted work address one separately purpose use second circuit correctly identified news reporting general purpose nation use news reporting one examples enumerated give idea sort activities courts might regard fair use circumstances senate report listing intended exhaustive see ibid definition including single particular use presumptively fair use drafters resisted pressures special interest groups create presumptive categories fair use structured provision affirmative defense requiring analysis see patry hether use referred first sentence section fair use particular case depend upon application determinative factors including mentioned second sentence senate report fact article arguably news therefore productive use simply one factor fair use analysis agree second circuit trial erred fixing whether information contained memoirs actually new public judge meskill wisely noted ourts chary deciding news dissenting cf gertz robert welch issue constitutes news whether claim newsreporting valid fair use defense infringement copyrightable expression patry nation every right seek first publish information nation went beyond simply reporting uncopyrightable information actively sought exploit headline value infringement making news event unauthorized first publication noted figure copyrighted expression fact publication commercial opposed nonprofit separate factor tends weigh finding fair use commercial use copyrighted material presumptively unfair exploitation monopoly privilege belongs owner copyright sony america universal city studios arguing purpose news reporting purely commercial nation misses point entirely crux distinction whether sole motive use monetary gain whether user stands profit exploitation copyrighted material without paying customary price see roy export co establishment columbia broadcasting system nimmer evaluating character purpose ignore nation stated purpose scooping forthcoming time abstracts app pet cert nation use merely incidental effect intended purpose supplanting copyright holder commercially valuable right first publication see meredith harper row publishers supp sdny purpose text compete original aff also relevant character use propriety defendant conduct nimmer fair use presupposes good faith fair dealing time bernard geis associates supp sdny quoting schulman fair use revision copyright act iowa rev trial found nation knowingly exploited purloined manuscript app pet cert unlike typical claim fair use nation offer even fiction consent justification like competitor free bid right abstracting excerpts time heal fair use distinguishes true scholar chiseler infringes work personal profit wainwright securities wall street transcript quoting hearings bills general revision copyright law house committee judiciary ser pt statement john schulman nature copyrighted work second act directs attention nature copyrighted work time heal may characterized unpublished historical narrative autobiography law generally recognizes greater need disseminate factual works works fiction fantasy see gorman fact fancy implications copyright copyright soc ven within field fact works gradations relative proportion fact fancy one may move sparsely embellished maps directories elegantly written biography extent one must permit expressive language copied order assure dissemination underlying facts thus vary case case fact work unpublished critical element nature nimmer comment john prior discussion establishes scope fair use narrower respect unpublished works even substantial quotations might qualify fair use review published work news account speech delivered public disseminated press see house report author right control first public appearance expression weighs use work release right first publication encompasses choice whether publish also choices form first publish work case ford manuscript copyright holders interest confidentiality irrefutable copyright holders entered contractual undertaking keep manuscript confidential required manuscript shown also sign agreement keep manuscript confidential app pet cert copyright holders contract time required time submit proposed article seven days publication nation clandestine publication afforded opportunity creative quality control hastily patched together contained number inaccuracies app testimony victor navasky use clearly infringes copyright holder interests confidentiality creative control difficult characterize fair amount substantiality portion used next act directs us examine amount substantiality portion used relation copyrighted work whole absolute terms words actually quoted insubstantial portion time heal district however found nation took essentially heart book believe appeals erred overruling district judge evaluation qualitative nature taking see roy export co establishment columbia broadcasting system taking seconds hour film deemed qualitatively substantial time editor described chapters pardon interesting moving parts entire manuscript reply brief petitioners portions actually quoted selected navasky among powerful passages chapters testified used verbatim excerpts simply reciting information adequately convey absolute certainty ford expressed app show comes president ford carry definitive quality original short quoted passages precisely qualitatively embodied ford distinctive expression statutory language indicates taking may excused merely insubstantial respect infringing work judge learned hand cogently remarked plagiarist excuse wrong showing much work pirate sheldon pictures cert denied conversely fact substantial portion infringing work copied verbatim evidence qualitative value copied material originator plagiarist seeks profit marketing someone else copyrighted expression stripped verbatim quotes direct takings unpublished manuscript constitute least infringing article see meeropol nizer copyrighted letters constituted less infringing work prominently featured nation article structured around quoted excerpts serve dramatic focal points see appendix opinion post view expressive value excerpts key role infringing work agree second circuit magazine took meager indeed infinitesimal amount ford original language effect market finally act focuses effect use upon potential market value copyrighted work last factor undoubtedly single important element fair use see nimmer cases cited therein fair use properly applied limited copying others materially impair marketability work copied nimmer trial found merely potential actual effect market time cancellation projected serialization refusal pay direct effect infringement appeals rejected factfinding clearly erroneous noting record establish causal relation time nonperformance respondents unauthorized publication ford expression opposed facts taken memoirs disagree rarely case copyright infringement present evidence actual damage petitioners assured time authorized publication portion unpublished manuscript prior april publication material chapters permit time renegotiate final payment time cited nation article contained verbatim quotes unpublished manuscript reason nonperformance respect apportionment profits flowing copyright infringement held infringer commingles infringing noninfringing elements must abide consequences unless make separation profits assure injured party justly belongs sheldon pictures cf infringer required prove elements profits attributable infringed work similarly copyright holder establishes reasonable probability existence causal connection infringement loss revenue burden properly shifts infringer show damage occurred taking copyrighted expression see nimmer petitioners established prima facie case actual damage respondents failed rebut see stevens linen associates mastercraft trial properly awarded actual damages accounting profits see important negate fair use one need show challenged use become widespread adversely affect potential market copyrighted work sony america universal city studios emphasis added collecting cases dissenting opinion inquiry must take account harm original also harm market derivative works see iowa state university research foundation american broadcasting meeropol nizer supra roy export columbia broadcasting system defendant work adversely affects value rights copyrighted work case adaptation serialization right use fair nimmer omitted undisputed factual material balance nation article besides verbatim quotes issue drawn exclusively chapters pardon excerpts employed featured episodes story nixon pardon precisely use petitioners licensed time borrowing verbatim quotes unpublished manuscript lent nation piece special air authenticity navasky expressed reader know ford speaking nation app thus directly competed share market prepublication excerpts senate report certain special exceptions use supplants part normal market copyrighted work ordinarily considered infringement senate report appeals erred concluding nation use copyrighted material excused public interest subject matter erred well overlooking unpublished nature work resulting impact potential market first serial rights permitting unauthorized prepublication excerpts rubric fair use finally finding taking infinitesimal appeals accorded little weight qualitative importance quoted passages original expression sum traditional doctrine fair use embodied copyright act sanction use made nation copyrighted materials copyright infringer may claim benefit public increasing public access copyrighted work see pacific southern duncan congress designed see warrant judicially imposing compulsory license permitting unfettered access unpublished copyrighted expression public figures nation conceded verbatim copying words direct quotation ford manuscript constitute infringement unless excused fair use find nation use verbatim excerpts unpublished manuscript fair use judgment appeals reversed case remanded proceedings consistent opinion ordered appendix opinion ford memoirs behind nixon pardon ford also writes misunderstanding might selected ronald reagan running mate washington lawyer edward bennett williams democrat choice head central intelligence agency nixon one first proposed rockefeller vice president regretted cowardice allowing rockefeller remove vice presidential contention ford also describes often prickly relations henry kissinger nation obtained typescript publication advance excerpts book appear time reader digest thereafter although initial print order decided figure tentatively set change depending upon public reaction serialization ford account nixon pardon contains significant new detail negotiations considerations surrounded according ford version subject first broached general haig august week nixon resigned general haig revealed newly transcribed white house tapes equivalent smoking gun ford prepare become president ford deeply hurt haig revelation past several months nixon repeatedly assured involved watergate evidence prove innocence matter fade view ford believed let haig explain president alternatives ride resign haig said listed different ways nixon might resign concluded pointing nixon agree leave return agreement new president ford pardon although ford said improper make recommendation basically agreed haig assessment adds references pardon authority ask haig extent president pardon power understanding white house lawyer haig replied president authority grant pardon even criminal action taken individual ford consulted white house special counsel james clair advice one way matter pointing lawyer given haig opinion pardon ford also discussed matter jack marsh felt mention pardon context time bomb bryce harlow served six presidents agreed mere mention pardon cause lot trouble result various conversations vice president ford called haig read written statement want understand intention recommending president resigning resigning nothing talked yesterday afternoon given consideration whatever decision president may wish make despite haig told smoking gun tapes ford told jackson luncheon audience later day president guilty impeachable offense said otherwise moment writes whole house cards might collapsed justifying pardon ford goes way assure reader compassion nixon individual prompted decision rather get monkey back one way precipitating factor decision series secret meetings general counsel phil buchen held watergate special prosecutor leon jaworski jefferson hotel staying time ford attributes jaworski providing crucial information nixon investigation ten separate areas process take years ford cites memorandum jaworski assistant henry ruth especially persuasive ruth written decide recommend indictment think fair proper notify jack miller white house sufficiently advance pardon action taken indictment went say one make strong argument leniency president ford inclined think early rather late buchen haig henry kissinger agreed hartmann sure buchen wanted condition pardon nixon agreeing settle question retain custody control tapes presidential papers might relevant various watergate proceedings ford reluctant one point plan considered whereby presidential materials kept vault federal facility near san clemente vault require two keys open one retained general services administration richard nixon white house however want nixon make full confession occasion pardon minimum express true contrition ford tells negotiation jack miller nixon lawyer wording nixon statement ford reports miller response nixon likely yield meetings client shown former president ability discuss watergate objectively almost nonexistent statement really wanted never forthcoming soon ford emissary arrived san clemente confronted ultimatum ron zeigler nixon former press secretary lets get one thing straight immediately zeigler said president nixon issuing statement whatsoever regarding watergate whether jerry ford pardons zeigler proposed draft turned ground statement better went three drafts agreed statement nixon finally made stopped far short full confession ford aide benton becker tried explain nixon acceptance pardon admission guilt felt president really listening instead nixon wanted talk washington redskins becker left nixon pressed cuff links tiepin jewelry box ultimately ford sums philosophy underlying decision one picked student yale law school many years learned public policy often took precedence rule law although respected tenet man law public policy demanded put nixon watergate behind us quickly possible later ford learned nixon phlebitis acted health seriously impaired debated whether pay ailing former president visit made trip remind everybody watergate pardon people say lacked compassion ford went stretched flat back tubes nose mouth wires led arms chest legs machines orange lights blinked face ashen thought never seen anyone closer death manuscript made available nation includes many references henry kissinger personalities played major role ford years kissinger immediately informed nixon intention resign ford returned executive office building phoned henry kissinger let know felt henry said need country needs want stay everything work sir kissinger replied job get along get along get along ford said know get along referring kissinger joint jobs secretary state national security adviser president ford said want make change think worked well let keep way john connally ford informed nixon wanted replace agnew told president ambition hold office january nixon replied good since choice running mate john connally excellent observed nixon ford says problem decision run ford tells us sincere intention run thought announce enhance credibility country congress well keep promise made wife betty kissinger talked ca disastrous foreign policy point view next two half years foreign governments know dealing president initiatives dead water able implement foreign policy probably consequences dealing congress domestic issues ca reassert authority presidency leave hanging dead limb got affirmative president david kennerly white house photographer schlesinger arguing kissinger ford appropriate response seizure mayaguez issue whether airstrikes cambodians desirable schlesinger opposed bombings following lull conversation ford reports spoke white house photographer david kennerly taking pictures last hour anyone considered kennerly asked might act local cambodian commander taken hands stop ship comes nobody apparently considered following several seconds silence ford tells us view carried day massive airstrikes constitute overkill ford decided far better navy jets coral sea make surgical strikes specific targets nixon felt disdain democratic leadership house also regarded weak according ford pride personal contempt weakness overcome ability tell difference right wrong leads ford wonder whether nixon known advance watergate hearing nixon resignation speech ford felt lacked adequate plea forgiveness persuaded nixon touch reality february last year washington post obtained printed advance excerpts haldeman memoir ends power eve publication times books new york times called post feat burglary post disagreed claiming coup represented enterprise arguing burglarized nothing publication haldeman memoir came fair comment doctrine long recognized courts fundamental journalistic principle first amendment principle central pentagon papers case issue nation dated may special spring books number discuss ethical problems raised issue disclosure footnotes subject sections owner copyright title exclusive rights authorize following reproduce copyrighted work copies prepare derivative works based upon copyrighted work distribute copies copyrighted work public section notwithstanding provisions section fair use copyrighted work purposes criticism comment news reporting teaching including multiple copies classroom use scholarship research infringement copyright determining whether use made work particular case fair use factors considered shall include purpose character use including whether use commercial nature nonprofit educational purposes nature copyrighted work amount substantiality portion used relation copyrighted work whole effect use upon potential market value copyrighted work professor nimmer notes perhaps precise guide stated joseph mcdonald clever paraphrase golden rule take others extent manner resentful took nimmer quoting mcdonald uses bull copyright soc equitable rule reason sony america universal city studios permits courts avoid rigid application copyright statute occasion stifle creativity law designed foster iowa state university research foundation american broadcasting see generally seltzer exemptions fair use copyright see latman strauss protection unpublished works reprinted study copyright law revision studies nos prepared senate committee judiciary citing cases shaw literary property fair use unpublished material ball doctrine fair use apply unpublished works weil american copyright law author unpublished work probably right prevent even fair use work others cf flint user guide copyright kingdom fair dealing unpublished works beloff pressdram ch see wheaton peters pet distinguishing author right obtain redress anyone improperly obtaining copy unpublished work endeavors realize profit publication rights published work prescribed statute press publishing monroe writ error dism stanley columbia broadcasting system cal en banc golding rko radio pictures cal app unauthorized appropriation unpublished work neutralized plea little one aff cal fendler morosco since plaintiff published produced play perhaps use others made might unfair rehearing denied bears noting congress copyright act recognized public interest warranting specific exemptions number areas within traditional fair use see compulsory license records copyright government works exemption limits copyright personal narratives written public servants leave government service dissent excuses nation unconsented use unpublished manuscript standard journalistic practice taking judicial notice new york times articles regarding memoirs john erlichman john dean blind ambition bernstein woodward final days proof practice post amici curiae sought bring alleged practice attention appeals second circuit citing articles appeals harper row motion struck exhibits failure proof trial record doc thus proper subject judicial notice see appendix opinion post appeals found approximately words copyrightable specify words discussion however indicates excluded consideration portions nation piece although copied verbatim ford manuscript quotes attributed ford third persons quotations government documents oral argument counsel nation dispute verbatim quotes close paraphrase constitute infringement tr oral arg thus appendix identifies potentially infringing verbatim quotes close paraphrase excludes consideration government documents words attributed third persons appendix intended endorse particular rule copyrightability intended merely aid facilitate discussion economists addressed issue believe fair use exception come play situations market fails price copyright holder ask near zero see brennan harper row nation copyrightability fair use dept justice economic policy office discussion paper gordon fair use market failure structural economic analysis betamax case predecessors colum rev facts demonstrate fully functioning market encourages creation dissemination memoirs public figures economists view permitting fair use displace normal copyright channels disrupts copyright market without commensurate public benefit angry showing cowardice saying going ford rockefeller whatever consequences contained smoking gun ver past several months nixon repeatedly assured involved watergate evidence prove innocence matter fade view first option try ride letting impeachment take natural course house senate trial fighting conviction way finally haig said according nixon white house staff nixon agree leave return agreement new president gerald ford pardon references pardon authority ask haig extent president pardon power pp finished bryce harlow let know uncertain terms agreed bob jack mere mention pardon option cause lot trouble days ahead luncheon repeated assertion president guilty impeachable offense said otherwise moment whole house cards might collapsed compassion nixon individual prompted decision get monkey back one way another jaworski gave phil several crucial pieces information verdict guilty one assume nixon appeal process take years entire process doubt require years minimum two maximum six nixon spend time quietly san clemente virtually impossible direct public attention anything else miller optimistic getting statement meetings client shown former president ability discuss watergate objectively almost nonexistent zeigler asked becker thought becker replied statement better years yale law school learned public policy often took precedence rule law although respected tenet man law public policy demanded put nixon watergate behind us quickly possible staff debated whether visit nixon long beach hospital half hour away made trip remind everyone watergate pardon people say lacked compassion ended debate soon found begun course go stretched flat back tubes nose mouth wires led arms chest legs machines orange lights blinked face ashen thought never seen anyone closer death henry said came line need country needs want stay everything work get along said know get along talked two hats wore secretary state national security adviser president want make change said think worked well let keep way told promise betty said ambitions hold office january subjectively felt kennerly said made lot sense massive airstrikes constitute overkill far better navy jets coral sea make surgical strikes specific targets vicinity kompong som nixon case flaw pride terribly proud man detested weakness people often heard speak disparagingly felt soft expedient curiously feel press weak reporters sensed adversaries knew like responded reciprocal disdain pride personal contempt weakness overcome ability tell difference right wrong speech lasted fifteen minutes end convinced nixon touch reality justice brennan justice white justice marshall join dissenting holds nation quotation words unpublished manuscript president gerald ford infringed copyright manuscript even though quotations related historical event undoubted significance resignation pardon president richard nixon although pursues laudable goal protecting economic incentive create disseminate ideas ante zealous defense copyright owner prerogative fear stifle broad dissemination ideas information copyright intended nurture protection copyright owner economic interest achieved case exceedingly narrow definition scope fair use progress arts sciences robust public debate essential enlightened citizenry ill served constricted reading fair use doctrine see therefore respectfully dissent case presents two issues first nation use material ford manuscript forms direct quotation manuscript infringe harper row copyright second quotation approximately words manuscript infringe copyright quotation constitute fair use within meaning copyright act finds need resolve threshold copyrightability issue use words quotation finds beyond scope fair use thus copyright infringement disagree fair use holding necessary decide threshold copyrightability question enactment copyright legislation congress terms constitution based upon natural right author writings upon ground welfare public served progress science useful arts promoted securing authors limited periods exclusive rights writings congress thus seeks define rights included copyright serve public welfare necessarily maximize author control product challenge copyright strike difficult balance interests authors inventors control exploitation writings discoveries one hand society competing interest free flow ideas information commerce hand sony america universal city studios supposed framers constitution empowered congress promote progress science useful arts securing limited times authors inventors exclusive right respective writings discoveries art par intended confer upon one might happen first report historic event exclusive right period spread knowledge international news service associated press promotion science useful arts requires limit scope author control author able prevent subsequent authors using concepts ideas facts contained work creative process wither scholars forced unproductive replication research predecessors see hoehling universal city studios limitation copyright also ensures consonance important first amendment values cf zacchini broadcasting profound national commitment principle debate public issues uninhibited robust new york times sullivan leaves room statutory monopoly information ideas arena public debate quiet indeed politician copyright speeches philosopher treatises thus obtain monopoly ideas contained lee runge douglas dissenting denial certiorari broad dissemination principles ideas factual information crucial robust public debate informed citizenry essence garrison louisiana every citizen must permitted freely marshal ideas facts advocacy particular political choices follows infringement copyright must based taking literary form opposed ideas information contained copyrighted work deciding whether infringing appropriation literary occurred difficult least two reasons first distinction literary form information ideas often elusive practice second infringement must based substantial appropriation literary form determination equally challenging surprisingly test infringement defied precise formulation general though inquiry proceeds along two axes closely second author tracked first author particular language structure presentation much first author language structure second author appropriated present case infringement analysis must applied historical biography author chronicled events white house tenure commented events unique perspective apart quotations virtually material nation article indirectly recounted ford factual narrative nixon resignation pardon reflections events presidency perceptions personalities center events see ante copyright claimed information qua information infringement thus based close substantial tracking ford expression information language much information nation conveyed form paraphrase took form synopsis lengthy discussions ford manuscript course summary presentation nation use occasional sentences closely resembled language original ford manuscript linguistic similarities insufficient constitute infringement three reasons first leeway must given subsequent authors seeking convey facts wishing express ideas contained factual work often choose narrow range expression landsberg scrabble crossword game players second much nation paraphrased material harper row claim copyright third nation paraphrased nothing approximating totality single paragraph much less chapter work whole nation paraphrased disparate isolated sentences original finding infringement based paraphrase generally requires far close substantial tracking original language occurred case see wainwright securities wall street transcript structure presentation article mimic ford structure information nation presents drawn scattered sections ford work appear sequence ford presented nation discussion pardon roughly track order ford manuscript presents information pardon respect similarity however ford done present facts chronologically claim infringement subsequent author similarly presents facts history chronological manner also difficult suggest article bodily appropriate structure book ford created history recounted simply represented nation article nation quoting ford therefore efforts convey historical information ford manuscript closely substantially track ford language structure constitute appropriation literary form ii nation thus liable copyright quotation words infringed harper row exclusive rights act section explicitly makes grant exclusive rights ubject section section notwithstanding provisions section fair use copyrighted work purposes criticism comment news reporting teaching including multiple copies classroom use scholarship research infringement copyright question whether nation quotation noninfringing fair use within meaning congress eschewed rigid approach fair use sony america universal city studios apply equitable rule reason analysis guided four statutorily prescribed factors purpose character use including whether use commercial nature nonprofit educational purposes nature copyright work amount substantially portion used relation copyrighted work whole effect use upon potential market value copyrighted work respect work history particularly memoirs public official statutorily prescribed analysis properly conducted without constant attention copyright crucial distinction protected literary form unprotected information ideas question must always subsequent author use literary form fair use within meaning light purpose use nature copyrighted work amount literary form used effect use literary form value market original limiting inquiry propriety subsequent author use copyright owner literary form easy case work history protection substantial appropriation literary form ensure historians return commensurate full value labors literary form contained works like time heal reflects part labor goes book labor collecting sifting organizing reflecting predominates creation works history one value labor produces lies primarily information ideas revealed particular collocation words information ideas expressed copyright thus protect often value work history courts must resist tendency reject fair use defense basis feeling author history deprived full value labor subsequent author taking information ideas sense piratical copyright law simply create property interest information ideas urge compensate subsequent use information ideas perhaps understandable inequity seems lurk idea much fruit historian labor may used without compensation however unforeseen byproduct statutory scheme intended primarily ensure return works imagination congress made affirmative choice copyright laws apply way copyright preclude others using ideas information revealed author work pertains literary form author expressed intellectual concepts distinction essence copyright copyright laws serve engine free expression ante statutory monopoly choke multifarious indirect uses consequent broad dissemination information ideas ensure progress arts sciences integrity first amendment values ideas information must freighted claims proprietary right judgment fair use analysis fallen temptation find copyright violation based minimal use literary form order provide compensation appropriation information work history failure distinguish information literary form permeates every aspect fair use analysis leads wrong result case application statutorily prescribed analysis attention distinction information literary form leads straightforward finding fair use within meaning purpose use nation purpose quoting words ford manuscript acknowledges news reporting see ante ford work contained information important events recent history two principals ford general alexander haig time nation publication widely thought candidates presidency nation objectively reported information ford manuscript without independent commentary way diminishes conclusion reporting news typical newsstory differs editorial precisely presents newsworthy information straightforward unelaborated manner source information render nation article less news report often books manuscripts solicited unsolicited subject matter news reports new york times frequently manuscripts unpublished time news report section lists news reporting prime example fair use another expression like criticism purposes congress explicitly approved news reporting informs public language makes clear congress saw spread knowledge information strongest justification properly limited appropriation expression appeals therefore correct conclude purpose nation use dissemination information contained quotations ford work furthered public interest light explicit congressional endorsement purpose ford literary form borrowed strongly favors finding fair use concedes validity news reporting purpose quickly offsets three purportedly countervailing considerations first asserts nation publishes profit publication ford quotes presumptively unfair commercial use second claims nation stated desire create news event signaled illegitimate purpose supplanting copyright owner right first publication ante third nation acted bad faith claims editor knowingly exploited purloined manuscript ante reliance commercial nature nation use separate factor tends weigh finding fair use ante inappropriate present context many uses lists paradigmatic examples fair use including criticism comment news reporting generally conducted profit country fact congress obviously aware enacted negate argument favoring fair use based news reporting criticism reporting criticism published profit render meaningless congressional imprimatur placed uses nation intent create news event weigh finding fair use rule like automatic presumption news reporting profit undermine congressional validation news reporting purpose news business earns reputation therefore readership consistent prompt publication news often scooping rivals importantly failure maintain distinction information literary form colors analysis point harper row legitimate copyright interest information ideas ford manuscript nation every right seek first disclose facts ideas public record suggests nation sought first reveal information ford manuscript nation stated purpose scooping competition circumstances negative bearing claim fair use indeed reliance factor seem amount little distaste standard journalistic practice seeking first publish news reliance nation putative bad faith equally unwarranted found nation possessed ford manuscript illegally violation interest harper row causes action abandoned dismissed case even manuscript purloined someone nothing record imputes culpability nation basis record case said nation made use contents manuscript knowing copyright owner sanction use several points brands conduct thievery see ante judgment unsupportable perhaps influenced unspoken tendency case find infringement based taking information ideas respect appropriation information ideas quoted words nation use perfectly legitimate despite copyright owner objection copyright claimed ideas information whether quotation words infringement fair use within meaning close question produced sharp division appeals copyright act held prohibit use copyright owner basis law objecting nation awareness objection significant chance adjudged unfounded amount bad faith imputing bad faith basis knowledge objection impermissibly prejudices inquiry impedes arrival proper conclusion purpose factor statutorily prescribed analysis strongly favors finding fair use case nature copyrighted work sony america universal city studios stated copyrights fungible opying news broadcast may stronger claim fair use copying motion picture statements reflect principle suggested act scope fair use generally broader source borrowed expression factual historical work see nimmer nformational works like ford manuscript readily lend productive use others less protected sony america universal city studios blackmun dissenting thus second statutory factor also favors finding fair use case acknowledges law generally recognizes greater need disseminate factual works works fiction fantasy ante ome briefer quotations memoir arguably necessary convey facts ibid discounts force consideration primarily ground fact work unpublished crucial element nature ante point introduces analysis case categorical presumption prepublication fair use see ante ordinary circumstances author right control first public appearance undisseminated expression outweigh claim fair use categorical presumption unwarranted terms unfaithful congressional intent whether particular prepublication use impair interest identifies encompassed within right first publication see ante depend nature copyrighted work timing prepublication use amount expression used medium second author communicates also certain uses might tolerable purposes others see sony america universal city studios supra ambiguous whether relies force presumption prepublication fair use analysis purpose effect particular use compare ante ante extent relies presumption presumes intolerable injury particular usurpation economic interest based quick litmus test prepublication timing congress plainly instructed us fair use analysis calls sensitive balancing interests held last term fair use inquiry never resolved basis two dimensional categorical approach see sony america universal city studios rejecting categorical requirement productive use extent purports evaluate facts case analysis relies sheer speculation quotation words manuscript infringed privacy interest ford author intended words manuscript public statement presidency lacking therefore deliberate choice part copyright owner keep expression confidential consideration senate report passage places great reliance see ante recognized impetus behind narrowing fair use unpublished works see see also nimmer scope fair use doctrine considerably narrower respect unpublished works held confidential copyright owners emphasis added depicts copyright owner confidentiality interest see ante privacy interest rather economic interest capturing full value initial release information public properly analyzed see infra lacking suggestion nation use interfered copyright owner interest editorial control manuscript nation made use ford quotes eve official publication thus interest nation prepublication use might infringed copyright owner interest capturing full economic value initial release considering interest component nature copyrighted work analysis deflates nation claim informational nature work supports fair use without inquiry actual potential economic harm nation particular prepublication use reason question economic harm properly considered fourth statutory factor effect value market copyrighted work presumed element nature copyright amount substantiality portion used difficult questions arise respect judgments importance case amount substantiality quotations used nation quoted approximately words manuscript words quotes drawn isolated passages disparate sections work judgment taking quantitatively infinitesimal dispose inquiry however evaluation substantiality qualitative terms also required much quoted material ford representation words others conversations quotations arguably necessary adequately convey facts ante rich expressive content beyond quotations portion quoted material drawn poignant expression ford manuscript particular nation made use six examples ford expression reflections events perceptions president nixon fair use inquiry turns propriety use quotations admittedly strong expressive content holds view expressive value excerpts key role infringing work third statutory factor disfavors finding fair use support conclusion purports rely district factual findings nation taken heart book supp sdny reliance misplaced appear another result failure distinguish information literary form district made finding evaluating quoted words issue totality information reflective commentary ford work ibid vast majority district considered heart ford work therefore consisted ideas information nation free use may well qualitative matter value manuscript lie information ideas nation used appropriation heart manuscript sense irrelevant copyright analysis copyright preclude second author use information ideas perhaps tacitly recognizing reliance district finding unjustifiable goes evaluate independently quality expression appearing nation article portions actually quoted selected navasky among powerful passages ante basis observation perhaps also inference fact quotes important nation article adheres conclusion nation appropriated heart ford manuscript least respect six particular quotes ford observations reflections president nixon agree conclusion nation appropriated literary form substantial quality agree however substantiality expression taken clearly excessive inappropriate nation news reporting purpose quotations used context critical book review ford work little question use fair use within meaning act amount substantiality use quantitative qualitative terms certainly appropriate purpose use difficult see use quoted words news report less appropriate acknowledges much ven substantial quotations might qualify fair use review published work news account speech delivered public see ante respect motivation pardon insights psyche fallen president example ford reflections perceptions laden emotion deeply personal value judgments full understanding immeasurably enhanced reproducing limited portion ford words importance work lies revelation previously unknown fact also revelation thoughts ideas motivations fears two presidents critical moment national history thus question easily resolved difficult say use six quotations gratuitous relation news reporting purpose conceding even substantial quotation appropriate news report published work seem agree quotation clearly inappropriate relation nation news reporting purpose determinative factor substantiality use inappropriate relation prepublication timing use really objection effect use market copyrighted work properly evaluated effect market correctly notes effect market undoubtedly single important element fair use ante citing nimmer properly focuses whether nation use adversely affected harper row serialization potential merely market sales ford work ante unfortunately failure distinguish use information appropriation literary form badly skews analysis factor purposes fair use analysis holds sufficient entire article containing quotes eroded serialization market potential ford work ante basis time cancellation serialization agreement finds arely case copyright infringement present evidence actual damage ibid essence finds using quotes story nixon pardon nation competed share market prepublication excerpts ante time planned excerpt chapters pardon nation publication indisputably precipitated time eventual cancellation mean nation use quoted words caused injury harper row wholly apart quoted words nation published significant information ideas ford manuscript publication information publication quotations caused time abrogate serialization agreement whatever negative effect serialization market effect product wholly legitimate activity appeals specifically held evidence support finding limited use expression per se led time decision print excerpts fully agree holding nation competed time competition share market excerpts literary form share market new information ford work information literary form represents real value work case perhaps best revealed following provision contract harper row ford author acknowledges value rights granted publisher hereunder substantially diminished author public discussion unique information previously disclosed author career personal life included work author agrees author endeavor disseminate information media including television radio newspaper magazine interviews prior first publication work hereunder app nation first convey information case perhaps take harper row value publisher sought garner contractual arrangement ford license time harper row every right seek monopolize revenue potential market contractual arrangements right set copyright shield competition market copyright protect information nation every right seek first publish information balancing interests distinction information literary form made clear statutorily prescribed process weighing four statutory fair use factors discussed leads naturally conclusion nation limited use literary form infringement purpose use nature copyrighted work strongly favor fair use defense nation appropriated ford expression purpose congress expressly authorized borrowed work whose nature justifies appropriation facilitate spread information factor perhaps least favorable claim fair use amount substantiality expression used without question portion expression appropriated among poignant ford manuscript difficult conclude taking excessive relation news reporting purpose event appropriation literary form opposed use information shown injure harper row economic interest uncertainty respect propriety amount expression borrowed resolved favor finding fair use light circumscribed scope quotation nation article undoubted validity purpose motivating quotation must conclude simply adopted exceedingly narrow view fair use order impose liability essence taking unprotected information iii exceedingly narrow approach fair use permits harper row monopolize information holding effect important extension property rights corresponding curtailment free use knowledge ideas international news service associated press brandeis dissenting perhaps advanced ability historian least public official recently left office capture full economic value information possession risking robust debate public issues essence garrison louisiana nation providing grist robust debate imposes liability upon nation reason nation succeeded first provide certain information public dissent bypassing threshold issue certainly intimate nation use ideas information quoted material constitute violation copyright laws one point opinion correctly governing principles respect copyrightability question see ante author may copyright ideas facts narrates section case copyright protection original work authorship extend idea procedure process system method operation concept principle discovery regardless form described explained illustrated embodied work doctrines fair use see substantial similarity see nimmer copyright hereinafter nimmer also function accommodate competing considerations see generally gorman fact fancy implications copyright copyright soc token author may claim copyright statements made others reported verbatim author work see suid newsweek magazine supp dc rokeach avco embassy pictures uspq sdny perverse prohibit government limiting financial resources upon political speaker may draw see fec national conservative political action committee permit government limit intellectual resources upon speaker may draw protection literary form must proscribe merely appropriation substantial portions author work otherwise plagiarist avoid infringement immaterial variations nichols universal pictures step beyond narrow clear prohibition wholesale copying however venture onto somewhat uncertain terrain compare hoehling universal city studios wainwright securities wall street transcript see also nimmer particular selection arrangement ideas well given specificity form expression warrants protection chafee reflections law copyright colum rev line lie somewhere author idea precise form wrote protection covers pattern work gorman supra literal substantial copying paraphrasing language inquiry substantiality appropriation quantitative qualitative aspect neither district dissent appeals approached question way despite recognizing material per se copyrightable district held totality facts memoranda collected together ford reflections protected copyright laws supp sdny dissent appeals signaled approval approach meskill dissenting approach must rejected copyright protection extended factual information whenever information interwoven protected expression purportedly case ford reflections expressive totality works history biography blend factual narrative reflective speculative commentary way precluding subsequent use facts presented squared specific legislative intent expressed house senate reports opyright preclude others using information revealed author work see pp pp core purposes copyright thwarted serious first amendment concerns arise author obtain monopoly narration historical events simply first discuss reflective analytical manner example ford manuscript expends several hundred words discussing relations ford ronald reagan weeks republican convention month convention aides met reagan representatives discuss need party unity reached agreement end presidential balloting winner go loser hotel suite congratulate opponent waging fine campaign together appear press conference urge republicans put aside differences rally behind ticket way leave kansas city hope victory appeared going win sears contacted cheney refined scenario insisted two conditions first see reagan alone aides either camp room secondly circumstances offer nomination vice president reagan said along interested job meant said tried talk turn embarrassing appear refusing help gop cheney relayed conditions agreed go along need reagan assistance fall campaign stupid anger followers moment later told arrival californian hotel one closest advisors businessman justin dart urged say yes asked running mate regardless anything said dart insisted patriotic duty accept number two post finally according dart reagan agreed time one mentioned new development aware conversation chosen ca say sure thought challenge divisive probably hurt party fall campaign additionally resented things saying administration policies certainly considered app example one point nation article reads ford told jackson luncheon audience later day president guilty impeachable offense ante portion ford manuscript discussed stated representative thad cochran escorted luncheon jackson hilton hotel luncheon repeated assertion president guilty impeachable offense app several places language nation article parallels ford original expression similar degree compare ante app often paraphrasing statements others made ford ante ride resign haig said see generally ante copyright asserted verbatim representation statements others see suid newsweek magazine rokeach avco embassy pictures uspq paraphrased material came government documents copyright interest claimed example article quotes memorandum prepared henry ruth official capacity assistant watergate special prosecutor leon jaworski see ante document work government see according exhibit harper row introduced trial pages ford manuscript correspond consecutive sections article follows see app pet cert one sense nation copied ford selection facts reported facts ford chose select presentation tracking historian selection facts generally supply basis finding infringement see myers mail express copyright bull sdny hand hold otherwise require second author duplicate research first author avoid reliance first author judgment facts particularly pertinent wasted effort proscription copyright ideas facts designed prevent miller universal city studios quoting rosemont enterprises random house see gorman copyright congressional limitation scope copyright threaten production history limitation results significant diminution economic incentives far apparent event noneconomic incentives motivate much historical research writing example former public officials often great incentive tell side story much history product academic scholarship perhaps importantly urge preserve past old humankind times article revelations forthcoming biography cardinal spellman times article revelations forthcoming book john erlichman times article revelations forthcoming autobiography president nixon times mar article revelations concerning president nixon resignation forthcoming book final days times article revelations concerning president ford forthcoming book blind ambition john dean properly rejects argument legitimate news courts business making evaluations journalistic quality see ante also properly rejects argument use nonproductive see ibid news reporting encompasses journalistic judgment respect selection organization presentation facts ideas certainly productive use see sony america universal city studios blackmun dissenting support claim refers language sony america universal city studios supra effect every commercial use copyrighted material presumptively unfair exploitation see ante properly understood language support position case sony dealt use video recording copyrighted television programs personal use congress expressed policy judgment evaluates uses congress specifically addressed presumption articulated sony appropriate effectuate congressional instruction consider whether use commercial nature also made statement course evaluating use appropriated entirety copyrighted work form identical original presumption articulated may well intended apply takings circumstances light specific language presumption appropriately employed negate weight congress explicitly gave news reporting justification limited use another expression case far cry time bernard geis associates supp sdny case cites support consideration nation purported bad faith case publisher claiming fair use personally stolen film negatives offices time published graphic representations stolen photographic images found fair use despite circumstances ibid also discounts factor part appropriation nation focusing expressive elements work exceeds necessary disseminate facts ante whatever propriety view nation use properly analyzed third statutory fair use factor amount substantiality expression taken relation copyrighted work whole analyzed opinion lays claim specific congressional intent supporting presumption prepublication fair use see ante quoting ante argument based congressional intent unpersuasive three reasons first face statute clearly allows prepublication fair use right first publication like rights act specifically grants copyright owners explicitly made subject section statutory fair use provision see second language senate report relies heavily see ante simply bear weight places senate report merely suggests prepublication photocopying classroom purposes generally constitute fair use author interest confidentiality unpublished work evidenced author deliberate choice publish given face specifically allows prepublication fair use unfaithful intent congress draw circumscribed suggestion senate report blanket presumption amount prepublication fair use purpose irrespective effect use copyright owner privacy editorial economic interests third reliance congressional adoption common law also unpersuasive common law set monolithic barrier prepublication fair use wishes see estate hemingway random house misc cty aff app div jud dept aff grounds statements general principle cites support contrary representation common law see ante unsupported reference substantial judicial authority congressional endorsement common law fair use read adoption rigid presumption prepublication use read way broad statement copyright act intended incorporate common law effect given force nullifying congress repeated methodological prescription definite rules inappropriate analysis required broad language adopting approach fair use best understood endorsement essential methodology common law fair use finds right first publication particularly weighty encompasses three important interests privacy interest whether make expression public ii editorial interest ensuring control work groomed public dissemination iii economic interest capturing full remunerative potential initial release public ante perhaps inappropriate apocalyptic prophesy permitting prepublication use news reporting effectively destroy expectation copyright protection work public figure ante impact prepublication use purposes news reporting obviously vary circumstances claim news reporting fig leaf substantial plagiarism see wainwright securities wall street transcript warrant concluding prepublication quotation sentences usually drain value copyright owner right first publication six quotes ompassion nixon individual prompted decision rather get monkey back one way ante nixon spend time quietly san clemente virtually impossible direct public attention anything else ante learned public policy often took precedence rule law although respected tenet man law public policy demanded put nixon watergate behind us quickly possible ante made trip remind everybody watergate pardon people say lacked compassion ibid stretched flat back tubes nose mouth wires led arms chest legs machines orange lights blinked face ashen thought never seen anyone closer death ibid terribly proud man writes ford detested weakness people often heard speak disparagingly felt soft expedient curiously feel press weak reporters sensed adversaries knew like responded reciprocal disdain pride personal contempt weakness overcome ability tell difference right wrong nixon touch reality ante places emphasis fact quotations ford work constituted substantial portion nation article superficially thus appear evaluating nation quotation words relation amount substantiality expression used relation second author work whole statute directs inquiry amount substantiality portion used relation copyrighted work whole emphasis added statutory directive implies matters little whether second author use appropriated expression taking expression adverse effect copyrighted work see sony america universal city studios expression taken presume therefore considered role expression infringing work indirect evidence qualitative value expression taken case read way point dovetails major argument nation appropriated valuable sentences work see supra reliance principle infringer mingles infringing noninfringing elements must abide consequences ante citation omitted misconceived infringement exclusive right shown entirely appropriate shift infringer burden showing infringement cause damages shown question case whether particular use infringed rights harper row may shown actual damage flowing nation use information shown actual damage flowing infringement exclusive right nation sought justify substantial appropriation expression news reporting rationale different case might presented substantiality taking certainly dilute claim need use first author exact words convey particular thought sentiment even claim need plausible equities favor copyright owner order prevent erosion virtually copyright protection works former public officials case however need manifest integrity copyright protection works public officials threatened