When Personal Memoirs Are News

Press freedom outweighs an ex-President's copyright

Memoirs of major public officials are big business. Presidents and prominent members of their Cabinets can often make more money writing about their time in office than they earned in salary while serving. Publishers are eager for such books, in part because they can make extra profits and garner valuable publicity with the sale of first serial rights to magazines. But as authors, what do the newsmakers own and when do they own it?

In May 1979, Harper & Row and the Reader's Digest Association were set to publish A Time to Heal, an account by Gerald Ford of his life and presidency. Shortly before the book was due out, the Nation (circ. 48,000), a leftist weekly, summarized Ford's account of his pardon of Richard Nixon, using a stolen copy of the book without Ford's permission. A U.S. district court ruled that the Nation had taken the former President's work in violation of the federal copyright laws, and directed the magazine to pay the publishers damages of $12,500; the sum represented the fee that the publishers lost when TIME, which had purchased first magazine publication rights, withdrew under a contractual provision after the Nation article appeared.

Backed by volunteer lawyers who perceived a threat to free-press rights, the Nation went to a federal appeals court, where last week, in a 2-to-1 ruling, the magazine won a ringing reversal. What the Nation had done, said Judge Irving Kaufman, writing for the majority, was merely to describe "political events of major significance, involving a former President of the United States."

The widely followed case pitted the right to literary ownership, or copyright, against the principle of a free press. Copyright, said Kaufman, covers not "ideas or facts," but the author's "expression." In the case of highly newsworthy books, this means only "the ordering and choice of the words themselves." Otherwise, he went on, "an individual could be the owner of an important political event merely by being the first to depict that event in words." Copyright law "was not meant to obstruct the citizens' access to vital facts and historical observations about our nation's life."

Kaufman noted that Editor Victor Navasky of the Nation had paraphrased most of what Ford wrote. Only 300 words of the 2,250-word article were taken verbatim from the manuscript. This brief borrowing of copyrighted material without the author's consent, said the court, was "fair use," a concept that allows limited quotation by journalists, critics, teachers and researchers. Dissenting Judge Thomas Meskill found a problem in the straightforward nature of the paraphrasing, however. "Copyright laws protect originality," he wrote. "They thus offer protection against a work that is substantially an unoriginal appropriation of the copyrighted work."

A jubilant Navasky hailed the ruling as "a victory for the public." But some legal experts contend that the decision's scope might not be as broad as Kaufman's resounding language suggests. The reigning scholar of copyright law, Melville Nimmer of U.C.L.A. law school, said the "essential element" in the case is that "the underlying material is factual." Paraphrasing of fictional material would still violate copyright laws. Columbia Law Professor Benno Schmidt also did not quarrel with the decision but added, "The appropriate principles of copyright protection got bent out of shape by the tremendous newsworthiness of the Ford disclosures."

At week's end the publishers had not decided, but were leaning toward seeking further review. Edward Miller, general counsel for Harper & Row, insisted that an important issue is at stake. Said he: "Copyright is the basis of the business we're in, and first serial rights are an important source of income for us." Whatever the final outcome of the case, publishers are considering new tactics to avoid such battles. Some warn that galleys of major books will be offered to fewer bidders with more stringent security restrictions. Others, like Roger Straus, president of Farrar, Straus & Giroux, think the ruling "will force earlier first publication," sacrificing the advantages of later publicity so that reporters will not have time to get unauthorized copies. This file is automatically generated by a robot program, so viewer discretion is required.