Harper & Row Publishers, Inc. v. Nation Enterprises

• Decision Date: 17 November 1983
• Docket Number: Nos. 143,261,D,s. 143
• Citation: 723 F.2d 195,200 U.S.P.Q. 321
• Parties: , 1984 Copr.L.Dec. P 25,604, 9 Media L. Rep. 2489 HARPER & ROW, PUBLISHERS, INC. and the Reader's Digest Association, Inc., Plaintiffs-Appellees-Cross-Appellants, v. NATION ENTERPRISES and the Nation Associates, Inc., Defendants-Appellants-Cross-Appellees. ockets 83-7277, 83-7327.
• Court: U.S. Court of Appeals — Second Circuit

Page 195

723 F.2d 195

220 U.S.P.Q. 321, 1984 Copr.L.Dec. P 25,604,

9 Media L. Rep. 2489

HARPER & ROW, PUBLISHERS, INC. and the Reader's Digest

Association, Inc., Plaintiffs-Appellees-Cross-Appellants, v. NATION ENTERPRISES and the Nation Associates, Inc.,

Defendants-Appellants-Cross-Appellees.

Nos. 143, 261, Dockets 83-7277, 83-7327.

United States Court of Appeals, Second Circuit.

Argued Sept. 14, 1983.

Decided Nov. 17, 1983.

Floyd Abrams, Cahill, Gordon & Reindel, New York City (Devereux Chatillon, Carol E. Rinzler, New York City, of counsel), American Civil Liberties Union, New York City, Andrew L. Deutsch, New York City, of counsel, and Leon Friedman, Hofstra University School of Law, Hempstead, N.Y., of counsel, for defendants-appellants-cross-appellees.

George Freeman, The New York Times Company, New York City, of counsel, for amici curiae The New York Times Co., Scientific American, Inc., The New York Review of Books, The Progressive, Inc. and the Reporters Committee for Freedom of the Press.

Stephen Gillers, New York City, of counsel, for amicus PEN American Center.

Roger L. Zissu, Cowan, Liebowitz & Latman, P.C., New York City (Alan Latman, Jane C. Ginsburg, David Otis Fuller, Jr., Christopher Goff, New York City, of counsel), for plaintiff-appellee cross-appellant The Reader's Digest Association, Inc.

Edward A. Miller, New York City, of counsel, for plaintiff-appellee-cross-appellant Harper & Row, Publishers, Inc.

Weil, Gotshal & Manges, New York City, Paskus, Gordon & Hyman, New York City, for amicus curiae Association of American Publishers, Inc.

Before KAUFMAN, MESKILL and PIERCE, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

Almost ten years ago, this nation endured a grave threat to its domestic political life. The report of a burglary at Democratic National Headquarters in the Watergate complex of Washington, D.C. led to a historic constitutional confrontation. The President, suspected of involvement in covering up the crime and its partisan origins, pitted his will against the resolve of a Congress endeavoring to discover the true facts. The citizens of this country watched with awe as revelation after revelation led finally to the first resignation of a President of the United States. This singular event was followed by another equally unprecedented act. Richard M. Nixon, not yet indicted for the commission of any crimes, was pardoned for any offenses by his successor in office, President Gerald Ford.

Reverberations from those shocks to the nation's constitution are still being felt, and this case is another of those repercussions. Two publishers have come before this court to urge that a magazine's use of material contained in the memoirs of Gerald Ford, and concerned in large part with the Nixon pardon, constitutes a violation of the Copyright Act, 17 U.S.C. Secs. 101 et seq. Harper & Row, Publishers, Inc. and The Reader's Digest Association, Inc. (hereinafter "Harper & Row" and "Reader's Digest," respectively) ask us to affirm the trial court's award of damages to them on grounds the Nation Enterprises and The Nation Associates, Inc. (hereinafter "the Nation") improperly took expression used by Ford in his book, A Time To Heal. Because we do not believe it is the purpose of the Copyright Act to impede that harvest of knowledge so necessary to a democratic state, we reverse. The trial court's dismissal of certain state law claims, however, is affirmed. Before turning to the law, we set forth the facts.

I.

If the first notes of this case were sounded during the days of Watergate, its earliest echo was an agreement consummated on February 28, 1977, one month after Gerald Ford had left the White House. At that time, the former President granted Harper & Row and Reader's Digest exclusive rights to publish his yet unwritten memoirs. The book, according to Harper & Row, was to include, among other things, "the circumstances and reasoning surrounding the pardon of Mr. Nixon by Mr. Ford." By the terms of the contract, Ford acknowledged he must help to guard the value of those rights by avoiding participation in any "public discussion of the unique information not previously disclosed" about his career.

                He therefore agreed "not to disseminate any such information in any media ... prior to publication."    While "spontaneous and brief" comments were not to be considered a breach of contract, the publishing agreement was influential in Ford's later decision not to appear on an NBC television special in which the pardon was to be a central topic
                

A professional writer, Trevor Armbrister, was hired to assist Ford in the process of gathering up strands of the past. Material was culled from a variety of sources including numerous interviews with public figures, among them Alexander Haig, Nelson Rockefeller, and Henry Kissinger. In addition, Ford and Armbrister made tape recordings in which the former President recollected both private and public aspects of his life. In February 1979, a first draft was completed by Armbrister. In addition to the information on the pardon of Nixon and events leading up to that historic choice, the book included depictions of Ford's childhood, his extensive career in Congress, his family life, his perceptions of a number of public figures, and the paths he followed after serving as President. Ford reviewed and edited this version of his experiences, and when it was near completion in March of that year, his publishers licensed to Time magazine the exclusive rights to print pre-publication excerpts in their issue of April 23rd. Time paid $12,500 in advance for this privilege, and was to pay an additional $12,500 when its edition containing selected segments was complete.

But the resonant note of the past was not yet stilled. In late March 1979, an unidentified person brought a copy of the Ford manuscript to Victor Navasky, Editor of The Nation, a magazine devoted in large part to political commentary and news. Mr. Navasky testified, with no contradiction, that he had neither solicited nor paid for delivery of the book. Nor was he aware upon its receipt of Time's pre-publication rights, although he did admit to realizing his temporary possession of the manuscript had not been authorized by Harper & Row or Reader's Digest. Believing the book to contain important political news, including heretofore undisclosed facts on the pardon, Navasky worked frenetically throughout a night and part of a weekend to read the memoirs in their entirety and select material germane to a news article before returning the copy to its source. He also consulted counsel concerning possible copyright violations and was advised that his proposed use was permissible.

On April 3, 1979, in an issue of The Nation dated April 9, 1979, the article which is the focus of this suit appeared. Navasky had learned by then of Time's publication plans, although he remained unsure of the precise contents which that magazine intended to excerpt. An ironic detail of the case is that much of the information concerning the pardon turned out to have been already revealed by Ford during the 1974 Hungate Committee investigation of that Presidential decision. Navasky, however, was unaware at the time he wrote that his piece was a hybrid, history to those who knew these facts, news to those who did not. It is enough to add here that the Nation's receipts from newsstand sales were $418.00.

The magazine article, a copy of which is reprinted in the Appendix to this opinion, was approximately 2,250 words in length and was contained in three two-column pages. The manuscript, in comparison, was nearly 200,000 words and covered 655 typed pages. The first three paragraphs in The Nation piece summarized the factual highlights and announced the expected publication dates of A Time To Heal as well as the advance excerpts in Time and The Reader's Digest. That introduction was followed by nineteen paragraphs concerning the decision to pardon Nixon. Significant conversations are recorded, including several between then Vice President Ford and Alexander Haig and Ford and various of his associates. Portions of a memorandum written by Henry S. Ruth, Jr., an aide to Special Prosecutor Leon Jaworski, are quoted. In addition, Ford's reasons for the pardon are described, as is the fact that his emotional reaction to Nixon did not influence his choice. Finally, a brief paragraph The article then recounts information on Ford's relations with Kissinger and several other historically significant episodes, including the seizure of the MAYAGUEZ and Ford's decision to run for a full term as President. That material is followed by four paragraphs in which Ford's perceptions and evaluations of Nixon's character and actions, including Nixon's response to the awesome consequences of Watergate, are portrayed. The article then ends with a reference to the problem of the disclosure of political events like those described in The Nation, and mentions the Washington Post's earlier unauthorized publication of excerpts from the memoirs of H.R. Haldeman, one of Nixon's closest advisors during the Watergate period.

on Ford's impressions of Nixon, ill with phlebitis following his resignation and pardon, is copied from the book.

All the information contained in the article dealt with Ford's public and political life. Harper & Row and Reader's Digest describe the material used by The Nation as barely disguised paraphrasings or direct thefts of Ford's original expression. The Nation asserts it did no more than relate facts of momentous public import, particularly since Ford and Haig were then considered serious contenders for the 1980 Republican Presidential nomination. It claims it borrowed only the minimum expression essential to lend credibility to the piece. Because these conflicting characterizations of The Nation article are at the heart of this case, we return to them in our legal discussion.

On the day The Nation article appeared, ...