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, the copyright owner’s ‘right of first publication’ would outweigh any needs of reproduction for classroom purposes.”

In 1985, the Supreme Court addressed the question of fair use of unpublished works in Harper & Row, Publishers, Inc. v. Nation Enterprises. The Court reversed the Second Circuit and held that The Nation magazine’s publication of excerpts from President Gerald Ford’s then unpublished autobiography “A Time to Heal” was not fair use. In reaching this result, the Court relied on the common law rule and the legislative history of Section 107 of the 1976 Copyright Act. The Court rejected defendant’s argument that fair use was intended by Congress to apply in pari materia to published and unpublished works, holding that “[t]he fact that a work is unpublished is a critical part of its ‘nature.’ * * * [T]he scope of fair use is narrower with respect to unpublished works.” The unpublished nature of a work was stated to be a “ ‘key, though not necessarily determinative factor’ tending to negate a defense of fair use.” Under “ordinary circumstances,” the “author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use.”

The Second Circuit’s first opinion after Harper & Row involved a suit brought by author J.D. Salinger against Random House over a biography that reproduced passages from unpublished letters Salinger had sent to friends and to his editor. The letters had been donated by the recipients or their heirs to university libraries. The biographer obtained access to the letters through the libraries. Salinger sued after seeing galley proofs of the then unreleased biography.

U.S. District Judge Pierre Leval refused, on fair use grounds, to issue a preliminary injunction against publication of the biography. The Second Circuit reversed and remanded, ordering that an injunction be issued. The court of appeals differed with Judge Leval on a number of issues. Two passages from the circuit court opinion proved particularly troublesome to some publishers and authors. First, the court of appeals rejected Judge Leval’s concern that a biographer wishing to use copyrighted unpublished material was faced with the dilemma of either risking infringement by copying verbatim, or distorting his or her subject’s meaning by putting the passage in the biographer’s own words. According to the Salinger court, if a biographer copies more than minimal amounts of expression “he deserves to be enjoined.” Second, the court of appeals