Hillary Rodham Clinton's and J.K. Rowling's publishers howled at the press earlier this month for jumping the publication "embargoes" they'd placed on the release of Living History and Harry Potter and the Order of the Phoenix. Clinton's publisher, Simon & Schuster, was contemplating a lawsuit against the Associated Press for publishing findings and quotations from her book six days before its official publication date. J.K. Rowling and her publisher went beyond threats, serving the New York Daily News with a $100 million copyright infringement lawsuit. The Daily News published plot details from Rowling's latest and reproduced two pages from it verbatim three days before the book's official June 21 release. Rowling's attorneys angrily jawboned USA Today and the Associated Press for publishing reviews of Phoenix prior to the official pub date, but filed no suits. Yet.
Clinton and Rowling may honestly believe the press violated their copyrights by quoting from and discussing the contents of their books prior to the official pub date. But neither author has much of a legal case, and I'm sure their lawyers would confess over drinks that the noise and litigation is mostly theater.
At the core of Clinton's and Rowling's kvetching is the legal concept of "right of first publication," which under U.S. copyright law belongs to the copyright holders. In news roundups about both the Clinton and Rowling episodes, journalists knowingly pointed to the "landmark" copyright infringement case of Harper & Row v. Nation Enterprises, decided by the Supreme Court in 1985, to illustrate the writers' complaints. But the problem with citing Harper & Row v. Nation as legal precedent is that it's less a landmark decision than a somewhat capricious one-off opinion by the high court.
In 1979, TheNation jumped an embargo on President Gerald R. Ford's memoir, A Time To Heal. Having obtained a purloined copy of the manuscript, the magazine printed a 2,250-word article decanting the book's most newsworthy elements just before Time planned to publish an excerpt, for which it had promised to pay $12,500 in advance and $12,500 upon publication. Because it had been scooped, Time canceled its excerpt after the Nation piece appeared, and Ford's publisher, Harper & Row, sued TheNation for copyright infringement, among other things. What strengthened Harper & Row's case was that it could point to lost business and demonstrable financial damages, which isn't always true in copyright infringement cases. (The excerpt contract permitted Time to renege on the final $12,500 installment if material from the book appeared first elsewhere.)
In its legal defense, TheNation invoked the "fair use" exemption to copyright laws, a murky and fuzzy area of the law. No two judges ever seem to agree on the application of fair use, and fair use cases are always bumping up against the First Amendment.
Essentially, fair use allows the reproduction of a limited amount of a copyrighted work—book, symphony, magazine article, speech, map, photograph, etc.—in commentary, criticism, news reporting, parody, noncommercial use in a classroom, etc., as long as it doesn't usurp the so-called value of the work or pre-empt the copyright-holders' right of first publication. (See this excellent cheat sheet published by the California State University system for a better discussion of the four basic tests of fair use.)
But how much is a limited amount? What is a parody or commentary? What's commercial use? What's educational? What's news reporting? How do you judge whether the value of a work has been usurped? What constitutes a violation of the right of first publication? This subjective and maddeningly inconsistent terrain makes you glad you never studied law. The only thing that's clear is that "one size fits all" does not apply to infringement cases, which means the only place to settle fair use disputes once and for all is in court, where judges repeatedly decide them on a case-by-case basis.
Although journalists bring up Harper & Row v. Nation as the important precedent every time a newspaper or magazine publishes something from a work yet to be officially published, the circumstance of the case and the waffling application of fair use in general indicate how completely subjective such cases are. The lower courts disagreed about Harper & Row v. Nation before the Supreme Court finally decided 6-3 in favor of Harper & Row, and even the Supreme Court ruling was anything but a slam dunk. In his dissenting opinion, Justice William Brennan argued:
this zealous defense of the copyright owner's prerogative will, I fear, stifle the broad dissemination of ideas and information copyright is intended to nurture. Protection of the copyright owner's economic interest is achieved in this case through an exceedingly narrow definition of the scope of fair use. The progress of arts and sciences and the robust public debate essential to an enlightened citizenry are ill served by this constricted reading of the fair use doctrine.
Had the circumstance of the case been only slightly different, or the cast of the court subtly changed, the case could have gone to The Nation without anyone blinking.
As one intellectual property attorney told me, most fair use cases boil down to whether the court likes or dislikes the defendants. Reading Justice Sandra Day O'Connor's decision, you can smell her fury at The Nation lefties.
Harper & Row won its case against TheNation for a handful of specific reasons: 1) The magazine admitted it got its information from a purloined copy of the Ford manuscript, making them look like scoundrels if not thieves; 2) its story was explicitly timed to pre-empt the news value of the announced Time excerpt; 3) the article all but gloated that it was negating the copyright-holders' commercially valuable "right of first publication"; 4) TheNation could have reported uncopyrightable material, the court noted, but chose to quote 300-plus copyrighted words directly from the unpublished book and in doing so "actively sought to exploit the headline value of its infringement, making a 'news event' " out of its piece; and 5) because Time had called off its A Time To Heal serial, Harper & Row could point to real, rather than hypothetical, financial damages. This is a big deal, because in many infringement cases it's hard to put a dollar figure on damages.
If suits by Clinton and Rowling go to court, Harper & Row v. Nation would guide the judges' thinking only to the degree that the case resembles Harper & Row v. Nation. But aside from the publishers and authors wanting the media to regard embargo dates as legally enforceable under the rights-of-first-publication maxim, there isn't much overlap.
Take Clinton's book. The AP story limited direct quotation from the Clinton book to only 180 words. Unlike The Nation, which gloated over its scoop, the AP didn't tweak Time, once again the purchaser of serial rights for the book, and Time published its excerpt, so Simon & Schuster can't point to precise financial damage. Neither did the AP story suck all the news value out of Clinton's book, as The Nation'sstorypretty much did.
If Rowling and her publishers, Scholastic, want to accuse the Daily News of violating their right of first publication, they're going to have a tougher time of it than Harper & Row did. The Daily News acquired its copy of the book at a Brooklyn health-food store that put it on sale, by mistake, before the June 21 publisher's embargo. (A number of retailers around the country made the same mistake.) Scholastic might have a case against the health-food store or the distributors, if they signed contracts pledging not to sell the book before June 21. But the buyer of Harry Potter and the Order of the Phoenix doesn't bear the legal consequences when the retailer screws up. Books traditionally dribble into stores weeks before or after their official publication dates. Can we really consider a book "unpublished" when copies are available for purchase in stores? (The AP didn't indicate how it obtained a copy of the Clinton book, leaving the publishers to guess.)
Rowling would be smarter to argue that the Daily News exceeded fair use doctrine in reproducing two pages, or about 940-words, straight out of the 870-page book. The law specifies no number of words that one can quote from a book in a review, but most publications limit themselves to 250 or 300. The 940 words the Daily News publish exceeds the standard rule of thumb for quotations, but it's only about 0.23 percent of the complete book. Would a court find this a violation of fair use? Especially if the two pages weren't all that integral to the plot? I doubt it. And would Rowling's attorneys—or Clinton's, for that matter—be prepared to argue that the AP and Daily News damaged sales with their stories? No way: Harry Potter and the Order of the Phoenix is breaking records and sales of Living History are approaching the half-million mark.
The legal saber rattling has more to do with the publishers' desire to control what people write about forthcoming books before they are "officially" published so that publishers can reap the gains of their publicity campaigns, as David D. Kirkpatrick noted over the weekend in the New York Times. In other words, they want to release books the way Hollywood releases movies.
The courts have long placed more fair use restrictions on unpublished work than on published work. But the right of first publication is never absolute, as the majority in Harper & Row v. Nation conceded. In his dissent, Justice Brennan suggested that the court ask these questions before deciding a right of first-publication fair-use case. What kind of copyrighted work is it? What was the timing of the prepublication? What medium did the prepublication appear in? Did the prepublication usurp all value from a copyright owner's first right of publication?
"[C]ertain uses might be tolerable for some purposes but not for others," Brennan wrote.
Publishers who tempt their audiences with hype-filled publicity campaigns can't complain if journalists and audiences act prematurely on those aroused appetites. They should be grateful for the advance publicity now and again, especially when the press doesn't pinch more of their content than they would in a review published after the official pub date. Finally, if releasing a book at a precise date and time is so financially important to the embargo Nazis, let them shoulder the security costs. Don't punish the press just because the publishers' plans have gone askew.
On the other hand, if you copy so much as word from this column without permission, you'll be hearing from the amateur lawyer who reads e-mail at firstname.lastname@example.org.