O'CONNOR, J., delivered the
opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, REHNQUIST,
and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which
WHITE and MARSHALL, JJ., joined.
JUSTICE O'CONNOR delivered the opinion of the Court.
 This case requires us to consider
to what extent the "fair use" provision of the Copyright Revision Act of 1976
(hereinafter [p*542] the Copyright Act), 17 U.S.C. § 107, sanctions the unauthorized
use of quotations from a public figure's unpublished manuscript. In March, 1979,
an undisclosed source provided The Nation Magazine with the unpublished manuscript
of "A Time to Heal: The Autobiography of Gerald R. Ford." Working directly from
the purloined manuscript, an editor of The Nation produced a short piece entitled
"The Ford Memoirs -- Behind the Nixon Pardon." The piece was timed to "scoop"
an article scheduled shortly to appear in Time Magazine. Time had agreed to
purchase the exclusive right to print prepublication excerpts from the copyright
holders, Harper & Row Publishers, Inc. (hereinafter Harper & Row), and
Reader's Digest Association, Inc. (hereinafter Reader's Digest). As a result
of The Nation article, Time canceled its agreement. Petitioners brought a successful
copyright action against The Nation. On appeal, the Second Circuit reversed
the lower court's finding of infringement, holding that The Nation's act was
sanctioned as a "fair use" of the copyrighted material. We granted certiorari,
467 U.S. 1214 (1984), and we now reverse.
 In February, 1977, shortly after leaving
the White House, former President Gerald R. Ford contracted with petitioners
Harper & Row and Reader's Digest, to publish his as yet unwritten memoirs.
The memoirs were to contain "significant hitherto unpublished material" concerning
the Watergate crisis, Mr. Ford's pardon of former President Nixon, and "Mr.
Ford's reflections on this period of history, and the morality and personalities
involved." App. to Pet. for Cert. C-14 - C-15. In addition to the right to publish
the Ford memoirs in book form, the agreement gave petitioners the exclusive
right to license prepublication excerpts, known in the trade as "first serial
rights." Two years later, as the memoirs were nearing completion, petitioners
negotiated a prepublication licensing agreement with Time, a weekly news magazine.
Time agreed to pay $25,000, $12,500 in advance and an [p*543] additional $12,500
at publication, in exchange for the right to excerpt 7,500 words from Mr. Ford's
account of the Nixon pardon. The issue featuring the excerpts was timed to appear
approximately one week before shipment of the full-length book version to bookstores.
Exclusivity was an important consideration; Harper & Row instituted procedures
designed to maintain the confidentiality of the manuscript, and Time retained
the right to renegotiate the second payment should the material appear in print
prior to its release of the excerpts.
 Two to three weeks before the
Time article's scheduled release, an unidentified person secretly brought a
copy of the Ford manuscript to Victor Navasky, editor of The Nation, a political
commentary magazine. Mr. Navasky knew that his possession of the manuscript
was not authorized, and that the manuscript must be returned quickly to his
"source" to avoid discovery. 557 F.Supp. 1067, 1069 (SDNY 1983). He hastily
put together what he believed was "a real hot news story" composed of quotes,
paraphrases, and facts drawn exclusively from the manuscript. Ibid. Mr.
Navasky attempted no independent commentary, research or criticism, in part
because of the need for speed if he was to "make news" by "publish[ing] in advance
of publication of the Ford book." App. 416-417. The 2,250-word article, reprinted
in the Appendix to this opinion, appeared on April 3, 1979. As a result of The
Nation's article, Time canceled its piece and refused to pay the remaining $12,500.
 Petitioners brought suit in the
District Court for the Southern District of New York, alleging conversion, tortious
interference with contract, and violations of the Copyright Act. After a 6-day
bench trial, the District Judge found that "A Time to Heal" was protected by
copyright at the time of The Nation publication and that respondents' use of
the copyrighted material constituted an infringement under the Copyright Act,
§§ 106(1), (2), and (3), protecting respectively the right to reproduce the
work, the right to license preparation of derivative works, and the right of
first distribution of [p*544] the copyrighted work to the public. App. to Pet.
for Cert. C-29 - C-30. The District Court rejected respondents' argument that
The Nation's piece was a "fair use" sanctioned by § 107 of the Act. Though billed
as "hot news," the article contained no new facts. The magazine had "published
its article for profit," taking "the heart" of "a soon-to-be published" work.
This unauthorized use "caused the Time agreement to be aborted, and thus diminished
the value of the copyright." 557 F.Supp. at 1072. Although certain elements
of the Ford memoirs, such as historical facts and memoranda, were not per
se copyrightable, the District Court held that it was
the totality of these facts and memoranda collected, together with Ford's
reflections, that made them of value to The Nation, [and] this . . . totality
. . . is protected by the copyright laws.
Id. at 1072-1073. The court awarded actual damages of
 A divided panel of the Court
of Appeals for the Second Circuit reversed. The majority recognized that Mr.
Ford's verbatim "reflections" were original "expression" protected by copyright.
But it held that the District Court had erred in assuming the "coupling [of
these reflections] with uncopyrightable fact transformed that information into
a copyrighted `totality.'" 723 F.2d 195, 205 (1983). The majority noted that
copyright attaches to expression, not facts or ideas. It concluded that, to
avoid granting a copyright monopoly over the facts underlying history and news,
"`expression' [in such works must be confined] to its barest elements -- the
ordering and choice of the words themselves." Id. at 204. Thus similarities
between the original and the challenged work traceable to the copying or paraphrasing
of uncopyrightable material, such as historical facts, memoranda and other public
documents, and quoted remarks of third parties, must be disregarded in evaluating
whether the second author's use was fair or infringing.
When the uncopyrighted material is stripped away, the article in The
Nation contains, at most, approximately [p*545] 300 words that
are copyrighted. These remaining paragraphs and scattered phrases are all
verbatim quotations from the memoirs which had not appeared previously in
other publications. They include a short segment of Ford's conversations with
Henry Kissinger and several other individuals. Ford's impressionistic depictions
of Nixon, ill with phlebitis after the resignation and pardon, and of Nixon's
character, constitute the major portion of this material. It is these parts
of the magazine piece on which [the court] must focus in [its] examination
of the question whether there was a "fair use" of copyrighted matter.
Id. at 206. Examining
the four factors enumerated in § 107, see infra at 547, n. 2, the majority
found the purpose of the article was "news reporting," the original work was
essentially factual in nature, the 300 words appropriated were insubstantial
in relation to the 2,250-word piece, and the impact on the market for the original
was minimal, as "the evidence [did] not support a finding that it was the very
limited use of expression per se which led to Time's decision not to
print the excerpt." The Nation's borrowing of verbatim quotations merely "len[t]
authenticity to this politically significant material . . . complementing the
reporting of the facts." 723 F.2d at 208. The Court of Appeals was especially
influenced by the "politically significant" nature of the subject matter and
its conviction that it is not "the purpose of the Copyright Act to impede that
harvest of knowledge so necessary to a democratic state" or "chill the activities
of the press by forbidding a circumscribed use of copyrighted words." Id.
at 197, 209.
 We agree with the Court of Appeals
that copyright is intended to increase, and not to impede, the harvest of knowledge.
But we believe the Second Circuit gave insufficient deference to the scheme
established by the Copyright Act for [p*546] fostering the original works that
provide the seed and substance of this harvest. The rights conferred by copyright
are designed to assure contributors to the store of knowledge a fair return
for their labors. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151,
 Article I, § 8, of the Constitution
The Congress shall have Power .
. . to Promote the Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their respective Writings
As we noted last Term:
[This] limited grant is a means by which an important public purpose may
be achieved. It is intended to motivate the creative activity of authors and
inventors by the provision of a special reward, and to allow the public access
to the products of their genius after the limited period of exclusive control
Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417,
429 (1984). "The monopoly created by copyright thus rewards the individual author
in order to benefit the public." Id. at 477 (dissenting opinion). This
principle applies equally to works of fiction and nonfiction. The book at issue
here, for example, was two years in the making, and began with a contract giving
the author's copyright to the publishers in exchange for their services in producing
and marketing the work. In preparing the book, Mr. Ford drafted essays and word
portraits of public figures and participated in hundreds of taped interviews
that were later distilled to chronicle his personal viewpoint. It is evident
that the monopoly granted by copyright actively served its intended purpose
of inducing the creation of new material of potential historical value.
 Section 106 of the Copyright
Act confers a bundle of exclusive rights to the owner of the copyright. [n1]
Under the Copyright [p*547] Act, these rights -- to publish, copy, and distribute
the author's work -- vest in the author of an original work from the time of
its creation. § 106. In practice, the author commonly sells his rights to publishers
who offer royalties in exchange for their services in producing and marketing
the author's work. The copyright owner's rights, however, are subject to certain
statutory exceptions. §§ 107-118. Among these is § 107, which codifies the traditional
privilege of other authors to make "fair use" of an earlier writer's work. [n2]
In addition, no author may copyright facts or ideas. § 102. The copyright is
limited to those aspects of the work -- termed "expression" -- that display
the stamp of the author's originality.
 Creation of a nonfiction work,
even a compilation of pure fact, entails originality. See, e.g., Schroeder
v. William Morrow & Co., 566 F.2d 3 (CA7 1977) (copyright in gardening
directory); cf. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53,
58 (1884) (originator of a photograph may claim copyright in his work). The
copyright holders of "A Time to Heal" complied with the relevant statutory notice
and registration [p*548] procedures. See §§ 106, 401, 408; App. to Pet.
for Cert. C-20. Thus there is no dispute that the unpublished manuscript of
"A Time to Heal," as a whole, was protected by § 106 from unauthorized reproduction.
Nor do respondents dispute that verbatim copying of excerpts of the manuscript's
original form of expression would constitute infringement unless excused as
fair use. See 1 M. Nimmer, Copyright § 2.11[B], p. 2-159 (1984) (hereinafter
Nimmer). Yet copyright does not prevent subsequent users from copying from a
prior author's work those constituent elements that are not original -- for
example, quotations borrowed under the rubric of fair use from other copyrighted
works, facts, or materials in the public domain -- as long as such use does
not unfairly appropriate the author's original contributions. Ibid.;
A. Latman, Fair Use of Copyrighted Works (1958), reprinted as Study No. 14 in
Copyright Law Revision Studies Nos. 1416, prepared for the Senate Committee
on the Judiciary, 86th Cong., 2d Sess., 7 (1960) (hereinafter Latman). Perhaps
the controversy between the lower courts in this case over copyrightability
is more aptly styled a dispute over whether The Nation's appropriation of unoriginal
and uncopyrightable elements encroached on the originality embodied in the work
as a whole. Especially in the realm of factual narrative, the law is currently
unsettled regarding the ways in which uncopyrightable elements combine with
the author's original contributions to form protected expression. Compare
Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F.2d 91
(CA2 1977) (protection accorded author's analysis, structuring of material and
marshaling of facts), with Hoehling v. Universal City Studios, Inc.,
618 F.2d 972 (CA2 1980) (limiting protection to ordering and choice of words).
See, e.g., 1 Nimmer § 2.11[D], at 2-164 - 2-165.
 We need not reach these issues,
however, as The Nation has admitted to lifting verbatim quotes of the author's
original language totaling between 300 and 400 words and constituting some 13%
of The Nation article. In using generous [p*549] verbatim excerpts of Mr. Ford's
unpublished manuscript to lend authenticity to its account of the forthcoming
memoirs, The Nation effectively arrogated to itself the right of first publication,
an important marketable subsidiary right. For the reasons set forth below, we
find that this use of the copyrighted manuscript, even stripped to the verbatim
quotes conceded by The Nation to be copyrightable expression, was not a fair
use within the meaning of the Copyright Act.
 Fair use was traditionally defined
as "a privilege in others than the owner of the copyright to use the copyrighted
material in a reasonable manner without his consent." H. Ball, Law of Copyright
and Literary Property 260 (1944) (hereinafter Ball). The statutory formulation
of the defense of fair use in the Copyright Act reflects the intent of Congress
to codify the common law doctrine. 3 Nimmer § 13.05. Section 107 requires a
case-by-case determination whether a particular use is fair, and the statute
notes four nonexclusive factors to be considered. This approach was "intended
to restate the [preexisting] judicial doctrine of fair use, not to change, narrow,
or enlarge it in any way." H.R.Rep. No. 94-1476, p. 66 (1976) (hereinafter House
[T]he author's consent to a reasonable
use of his copyrighted works ha[d] always been implied by the courts as a
necessary incident of the constitutional policy of promoting the progress
of science and the useful arts, since a prohibition of such use would inhibit
subsequent writers from attempting to improve upon prior works, and thus .
. . frustrate the very ends sought to be attained.
Ball 260. Professor Latman, in a study of the doctrine of fair
use commissioned by Congress for the revision effort, see Sony Corp. of America
v. Universal City Studios, Inc., 464 U.S. at 462-463, n. 9 (dissenting opinion),
summarized prior law as turning on the
importance [p*550] of the material copied or performed from the point of
view of the reasonable copyright owner. In other words, would the reasonable
copyright owner have consented to the use?
Latman 15. [n3]
 As early as 1841, Justice Story
gave judicial recognition to the doctrine in a case that concerned the letters
of another former President, George Washington.
[A] reviewer may fairly cite largely from the original work, if his design
be really and truly to use the passages for the purposes of fair and reasonable
criticism. On the other hand, it is as clear that, if he thus cites the most
important parts of the work, with a view not to criticise, but to supersede
the use of the original work, and substitute the review for it, such a use
will be deemed in law a piracy.
Folsom v. Marsh, 9 F.Cas. 342, 344-345 (No. 4,901) (CC Mass.) As Justice
Story's hypothetical illustrates, the fair use doctrine has always precluded
a use that "supersede[s] the use of the original." Ibid. Accord,
S.Rep. No. 94-473, p. 65 (1975) (hereinafter Senate Report).
 Perhaps because the fair use
doctrine was predicated on the author's implied consent to "reasonable and customary"
use when he released his work for public consumption, fair use traditionally
was not recognized as a defense to charges [p*551] of copying from an author's
as yet unpublished works. [n4] Under common law copyright,
"the property of the author . . . in his intellectual creation [was] absolute
until he voluntarily part[ed] with the same." American Tobacco Co. v. Werckmeister,
207 U.S. 284, 299 (1907); 2 Nimmer § 8.23, at 8-273. This absolute rule, however,
was tempered in practice by the equitable nature of the fair use doctrine. In
a given case, factors such as implied consent through de facto publication
on performance or dissemination of a work may tip the balance of equities in
favor of prepublication use. See Copyright Law Revision -- Part 2: Discussion
and Comments on Report of the Register of Copyrights on General Revision of
the U.S. Copyright Law, 88th Cong., 1st Sess., 27 (H.R. Comm. Print 1963) (discussion
suggesting works disseminated to the public in a form not constituting a technical
"publication" should nevertheless be subject to fair use); 3 Nimmer § 13.05,
at 13-62, n. 2. But it has never been seriously disputed that "the fact that
the plaintiff's work is unpublished . . . is a factor tending to negate the
defense of fair use." Ibid. Publication of an author's expression before
he has authorized its dissemination seriously infringes the author's right to
decide when and whether it will be made public, a factor not present in fair
use of published works. [n5] [p*552] Respondents contend,
however, that Congress, in including first publication among the rights enumerated
in § 106, which are expressly subject to fair use under § 107, intended that
fair use would apply in pari materia to published and unpublished works.
The Copyright Act does not support this proposition.
 The Copyright Act represents
the culmination of a major legislative reexamination of copyright doctrine.
See Mills Music, Inc. v. Snyder, 469 U.S. 153, 159-160 (1985);
Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. at 462-463,
n. 9 (dissenting opinion). Among its other innovations, it eliminated publication
"as a dividing line between common law and statutory protection," House Report
at 129, extending statutory protection to all works from the time of their creation.
It also recognized for the first time a distinct statutory right of first publication,
which had previously been an element of the common law protections afforded
unpublished works. The Report of the House Committee on the Judiciary confirms
Clause (3) of section 106, establishes the exclusive right of publications.
. . . Under this provision, the copyright owner would have the right to control
the first public distribution of an authorized copy . . . of his work.
Id. at 62.
 Though the right of first publication,
like the other rights enumerated in § 106, is expressly made subject to the
fair use provision of § 107, fair use analysis must always be tailored to the
individual case. Id. at 65; 3 Nimmer § 13.05[A]. The [p*553] nature of
the interest at stake is highly relevant to whether a given use is fair. From
the beginning, those entrusted with the task of revision recognized the
overbalancing reasons to preserve the common law protection of undisseminated
works until the author or his successor chooses to disclose them.
Copyright Law Revision, Report of the Register of Copyrights
on the General Revision of the U.S. Copyright Law, 87th Cong., 1st Sess., 41
(Comm. Print 1961). The right of first publication implicates a threshold decision
by the author whether and in what form to release his work. First publication
is inherently different from other § 106 rights in that only one person can
be the first publisher; as the contract with Time illustrates, the commercial
value of the right lies primarily in exclusivity. Because the potential damage
to the author from judicially enforced "sharing" of the first publication right
with unauthorized users of his manuscript is substantial, the balance of equities
in evaluating such a claim of fair use inevitably shifts.
 The Senate Report confirms that
Congress intended the unpublished nature of the work to figure prominently in
fair use analysis. In discussing fair use of photocopied materials in the classroom
the Committee Report states:
A key, though not necessarily determinative, factor in fair use is whether
or not the work is available to the potential user. If the work is "out of
print" and unavailable for purchase through normal channels, the user may
have more justification for reproducing it. . . . The applicability of the
fair use doctrine to unpublished works is narrowly limited, since, although
the work is unavailable, this is the result of a deliberate choice on the
part of the copyright owner. Under ordinary circumstances, the copyright owner's
"right of first publication" would outweigh any needs of reproduction for
Senate Report at 64. Although the Committee selected photocopying
of classroom materials to illustrate fair use, it emphasized that "the same
[p*554] general standards of fair use are applicable to all kinds of uses of
copyrighted material." Id. at 65. We find unconvincing respondents' contention
that the absence of the quoted passage from the House Report indicates an intent
to abandon the traditional distinction between fair use of published and unpublished
works. It appears instead that the fair use discussion of photocopying of classroom
materials was omitted from the final Report because educators and publishers
in the interim had negotiated a set of guidelines that rendered the discussion
obsolete. House Report at 67. The House Report nevertheless incorporates the
discussion by reference, citing to the Senate Report and stating: "The Committee
has reviewed this discussion, and considers it still has value as an analysis
of various aspects of the [fair use] problem." Ibid.
 Even if the legislative history
were entirely silent, we would be bound to conclude from Congress' characterization
of § 107 as a "restatement" that its effect was to preserve existing law concerning
fair use of unpublished works as of other types of protected works, and not
to "change, narrow, or enlarge it." Id. at 66. We conclude that the
unpublished nature of a work is "[a] key, though not necessarily determinative,
factor" tending to negate a defense of fair use. Senate Report at 64. See
3 Nimmer § 13.05, at 13-62, n. 2; W. Patry, The Fair Use Privilege in Copyright
Law 125 (1985) (hereinafter Patry).
 We also find unpersuasive respondents'
argument that fair use may be made of a soon-to-be-published manuscript on the
ground that the author has demonstrated he has no interest in nonpublication.
This argument assumes that the unpublished nature of copyrighted material is
only relevant to letters or other confidential writings not intended for dissemination.
It is true that common law copyright was often enlisted in the service of personal
privacy. See Brandeis & Warren, The Right to Privacy, 4 Harv.L.Rev.193,
198-199 (1890). In its commercial guise, however, an author's right to choose
when he will publish is no less deserving of protection. [p*555] The period
encompassing the work's initiation, its preparation, and its grooming for public
dissemination is a crucial one for any literary endeavor. The Copyright Act,
which accords the copyright owner the "right to control the first public distribution"
of his work, House Report at 62, echos the common law's concern that the author
or copyright owner retain control throughout this critical stage. See generally
Comment, The Stage of Publication as a "Fair Use" Factor: Harper & Row,
Publishers v. Nation Enterprises, 58 St. John's L.Rev. 597 (1984). The obvious
benefit to author and public alike of assuring authors the leisure to develop
their ideas free from fear of expropriation outweighs any short-term "news value"
to be gained from premature publication of the author's expression. See
Goldstein, Copyright and the First Amendment, 70 Colum.L.Rev. 983, 1004-1006
(1970) (The absolute protection the common law accorded to soon-to-be published
works "[was] justified by [its] brevity and expedience"). The author's control
of first public distribution implicates not only his personal interest in creative
control, but his property interest in exploitation of prepublication rights,
which are valuable in themselves and serve as a valuable adjunct to publicity
and marketing. See Belshi v. Woodward, 598 F.Supp. 36 (DC 1984) (successful
marketing depends on coordination of serialization and release to public); Marks,
Subsidiary Rights and Permissions, in What Happens in Book Publishing 230 (C.
Grannis ed.1967) (exploitation of subsidiary rights is necessary to financial
success of new books). Under ordinary circumstances, the author's right to control
the first public appearance of his undisseminated expression will outweigh a
claim of fair use.
 Respondents, however, contend
that First Amendment values require a different rule under the circumstances
of this case. The thrust of the decision below is that "[t]he scope of [fair
use] is undoubtedly wider when the information [p*556] conveyed relates to matters
of high public concern." Consumers Union of the United States, Inc. v. General
Signal Corp., 724 F.2d 1044, 1050 (CA2 1983) (construing 723 F.2d 195 (1983)
(case below) as allowing advertiser to quote Consumer Reports), cert. denied,
469 U.S. 823 (1984). Respondents advance the substantial public import of the
subject matter of the Ford memoirs as grounds for excusing a use that would
ordinarily not pass muster as a fair use -- the piracy of verbatim quotations
for the purpose of "scooping" the authorized first serialization. Respondents
explain their copying of Mr. Ford's expression as essential to reporting the
news story it claims the book itself represents. In respondents' view, not only
the facts contained in Mr. Ford's memoirs, but "the precise manner in which
[he] expressed himself [were] as newsworthy as what he had to say." Brief for
Respondents 38-39. Respondents argue that the public's interest in learning
this news as fast as possible outweighs the right of the author to control its
 The Second Circuit noted, correctly,
that copyright's idea/ expression dichotomy
strike[s] a definitional balance between the First Amendment and the Copyright
Act by permitting free communication of facts while still protecting an author's
723 F.2d at 203. No author may copyright his ideas or the facts
he narrates. 17 U.S.C. § 102(b). See, e.g., New York Times Co. v.
United States, 403 U.S. 713, 726, n. (1971) (BRENNAN, J., concurring) (Copyright
laws are not restrictions on freedom of speech, as copyright protects only form
of expression, and not the ideas expressed); 1 Nimmer § 1.10[B]. As this
Court long ago observed:
[T]he news element -- the information respecting current events contained
in the literary production -- is not the creation of the writer, but is a
report of matters that ordinarily are publici juris;
it is the history of the day.
International News Service v. Associated Press, 248
U.S. 215, 234 (1918). But copyright assures those who write and publish factual
narratives such as "A Time to Heal" that [p*557] they may at least enjoy the
right to market the original expression contained therein as just compensation
for their investment. Cf. Zacchini v. Scripps-Howard Broadcasting
Co., 433 U.S. 562, 575 (1977).
 Respondents' theory, however,
would expand fair use to effectively destroy any expectation of copyright protection
in the work of a public figure. Absent such protection, there would be little
incentive to create or profit in financing such memoirs, and the public would
be denied an important source of significant historical information. The promise
of copyright would be an empty one if it could be avoided merely by dubbing
the infringement a fair use "news report" of the book. See Wainwright Securities
Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (CA2 1977), cert. denied,
434 U.S. 1014 (1978).
 Nor do respondents assert any
actual necessity for circumventing the copyright scheme with respect to the
types of works and users at issue here. [n6] Where
an author and publisher have invested extensive resources in creating an original
work and are poised to release it to the public, no legitimate aim is served
by preempting the right of first publication. The fact that the words the author
has chosen to clothe his narrative may of themselves be "newsworthy" is not
an independent justification for unauthorized copying of the author's expression
prior to publication. To paraphrase another recent Second Circuit decision:
[Respondent] possessed an unfettered right to use any factual information
revealed in [the memoirs] for the purpose of enlightening its audience, but
it can claim [p*558] no need to "bodily appropriate" [Mr. Ford's] "expression"
of that information by utilizing portions of the actual [manuscript]. The
public interest in the free flow of information is assured by the law's refusal
to recognize a valid copyright in facts. The fair use doctrine is not a license
for corporate theft, empowering a court to ignore a copyright whenever it
determines the underlying work contains material of possible public importance.
Iowa State University Research Foundation, Inc. v. American
Broadcasting Cos., Inc., 621 F.2d 57, 61 (1980) (citations omitted). Accord,
Roy Export Co. Establishment v. Columbia Broadcasting System, Inc., 503
F.Supp. 1137 (SDNY 1980) ("newsworthiness" of material copied does not justify
copying), aff'd, 672 F.2d 1095 (CA2), cert. denied, 459 U.S. 826
(1982); Quinto v. Legal Times of Washington, Inc., 506 F.Supp. 554 (DC
 In our haste to disseminate
news, it should not be forgotten that the Framers intended copyright itself
to be the engine of free expression. By establishing a marketable right to the
use of one's expression, copyright supplies the economic incentive to create
and disseminate ideas. This Court stated in Mazer v. Stein, 347 U.S.
201, 209 (1954):
The economic philosophy behind
the clause empowering Congress to grant patents and copyrights is the conviction
that encouragement of individual effort by personal gain is the best way to
advance public welfare through the talents of authors and inventors in "science
and useful Arts."
 And again in Twentieth Century
Music Corp. v. Aiken:
The immediate effect of our copyright law is to secure a fair return
for an "author's" creative labor. But the ultimate aim is, by this incentive,
to stimulate [the creation of useful works] for the general public good.
422 U.S. at 156. [p*559]
 It is fundamentally at odds
with the scheme of copyright to accord lesser rights in those works that are
of greatest importance to the public. Such a notion ignores the major premise
of copyright, and injures author and public alike.
[T]o propose that fair use be imposed whenever the "social value [of dissemination]
. . . outweighs any detriment to the artist" would be to propose depriving
copyright owners of their right in the property precisely when they encounter
those users who could afford to pay for it.
Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the
Betamax Case and its Predecessors, 82 Colum.L.Rev. 1600, 1615 (1982).
And as one commentator has noted:
If every volume that was in the public interest could be pirated away by
a competing publisher, . . . the public [soon] would have nothing worth reading.
Sobel, Copyright and the First Amendment: A Gathering Storm?,
19 ASCAP Copyright Law Symposium 43, 78 (1971). See generally Comment,
Copyright and the First Amendment; Where Lies the Public Interest?, 59 Tulane
L.Rev. 135 (1984).
 Moreover, freedom of thought
and expression "includes both the right to speak freely and the right to refrain
from speaking at all." Wooley v. Maynard, 430 U.S. 705, 714 (1977) (BURGER,
C.J.). We do not suggest this right not to speak would sanction abuse of the
copyright owner's monopoly as an instrument to suppress facts. But in the words
of New York's Chief Judge Fuld:
The essential thrust of the First Amendment is to prohibit improper restraints
on the voluntary public expression of ideas; it shields the man who wants
to speak or publish when others wish him to be quiet. There is necessarily,
and within suitably defined areas, a concomitant freedom not to speak publicly,
one which serves the same ultimate end as freedom of speech in its affirmative
Estate of Hemingway v. Random House, Inc., 23 N.Y.2d
341, 348, 244 N.E.2d 250, 255 (1968). [p*560] Courts and commentators have recognized
that copyright, and the right of first publication in particular, serve this
countervailing First Amendment value. See Schnapper v. Foley, 215 U.S.App.D.C.
59, 667 F.2d 102 (1981), cert. denied, 455 U.S. 948 (1982); 1 Nimmer
§ 1.10[B], at 1-70, n. 24; Patry 140-142.
 In view of the First Amendment
protections already embodied in the Copyright Act's distinction between copyrightable
expression and uncopyrightable facts and ideas, and the latitude for scholarship
and comment traditionally afforded by fair use, we see no warrant for expanding
the doctrine of fair use to create what amounts to a public figure exception
to copyright. Whether verbatim copying from a public figure's manuscript in
a given case is or is not fair must be judged according to the traditional equities
of fair use.
 Fair use is a mixed question of
law and fact. Pacific & Southern Co. v. Duncan, 744 F.2d 1490, 1495,
n. 8 (CA11 1984). Where the district court has found facts sufficient to evaluate
each of the statutory factors, an appellate court
need not remand for further factfinding . . . , [but] may conclude as a matter
of law that [the challenged use] do[es] not qualify as a fair use of the copyrighted
Id. at 1495. Thus whether The Nation article constitutes fair use under
§ 107 must be reviewed in light of the principles discussed above. The factors
enumerated in the section are not meant to be exclusive:
[S]ince the doctrine is an equitable rule of reason, no generally applicable
definition is possible, and each case raising the question must be decided
on its own facts.
House Report at 65. The four factors identified by Congress as especially relevant
in determining whether the use was fair are: (1) the purpose and character of
the use; (2) the nature of the copyrighted work; (3) the substantiality of the
portion used in relation to the copyrighted work as [p*561] a whole; (4) the
effect on the potential market for or value of the copyrighted work. We address
each one separately.
 Purpose of the Use.
The Second Circuit correctly identified news reporting as the general purpose
of The Nation's use. News reporting is one of the examples enumerated in § 107
to "give some idea of the sort of activities the courts might regard as fair
use under the circumstances." Senate Report at 61. This listing was not intended
to be exhaustive, see ibid.; § 101 (definition of "including" and "such
as"), or to single out any particular use as presumptively a "fair" use. The
drafters resisted pressures from special interest groups to create presumptive
categories of fair use, but structured the provision as an affirmative defense
requiring a case-by-case analysis. See H.R.Rep. No. 83, 90th Cong., 1st
Sess., 37 (1967); Patry 477, n. 4.
[W]hether a use referred to in the first sentence of section 107 is a fair
use in a particular case will depend upon the application of the determinative
factors, including those mentioned in the second sentence.
Senate Report at 62. The fact that an article arguably is "news," and therefore
a productive use, is simply one factor in a fair use analysis.
 We agree with the Second Circuit
that the trial court erred in fixing on whether the information contained in
the memoirs was actually new to the public. As Judge Meskill wisely noted, "[c]ourts
should be chary of deciding what is and what is not news." 723 F.2d at 215 (dissenting).
Cf. Gertz v. Robert Welch, Inc., 418 U.S. 323, 345-346 (1974).
The issue is not what constitutes "news," but whether a claim of newsreporting
is a valid fair use defense to an infringement of copyrightable
Patry 119. The Nation has every right to seek to be the first to publish information.
But The Nation went beyond simply reporting uncopyrightable information and
actively sought to exploit the headline value of its infringement, making a
"news event" out of its unauthorized first publication of a noted figure's copyrighted
 The fact that a publication
was commercial, as opposed to nonprofit, is a separate factor that tends to
weigh against a finding of fair use.
[E]very commercial use of copyrighted material is presumptively an unfair
exploitation of the monopoly privilege that belongs to the owner of the copyright.
Sony Corp. of America v. Universal City Studios, Inc.,
464 U.S. at 451. In arguing that the purpose of news reporting is not purely
commercial, The Nation misses the point entirely. The crux of the profit/nonprofit
distinction is not whether the sole motive of the use is monetary gain, but
whether the user stands to profit from exploitation of the copyrighted material
without paying the customary price. See Roy Export Co. Establishment v. Columbia
Broadcasting System, Inc., 503 F.Supp. at 1144; 3 Nimmer § 13.05[A],
at 13-71, n. 25.3.
 In evaluating character and
purpose, we cannot ignore The Nation's stated purpose of scooping the forthcoming
hardcover and Time abstracts. [n7] App. to Pet. for
Cert. C-27. The Nation's use had not merely the incidental effect, but the intended
purpose, of supplanting the copyright holder's commercially valuable right of
first publication. See Meredith Corp. v. Harper & Row, Publishers, Inc.,
378 F.Supp. 686, 690 (SDNY) (purpose of text was to compete with original),
aff'd, 500 F.2d 1221 (CA2 1974). Also relevant to the "character" of
the use is "the propriety of the defendant's conduct." 3 Nimmer § 13.05[A],
at 13-72. "Fair use presupposes `good faith' and `fair dealing.'" Time Inc.
v. Bernard Geis Associates, 293 F.Supp. 130, 146 (SDNY 1968), quoting [p*563]
Schulman, Fair Use and the Revision of the Copyright Act, 53 Iowa L.Rev. 832
(1968). The trial court found that The Nation knowingly exploited a purloined
manuscript. App. to Pet. for Cert. B-1, C-20 - C-21, C-28 - C-29. Unlike the
typical claim of fair use, The Nation cannot offer up even the fiction of consent
as justification. Like its competitor newsweekly, it was free to bid for the
right of abstracting excerpts from "A Time to Heal." Fair use "distinguishes
between `a true scholar and a chiseler who infringes a work for personal profit.'"
Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F.2d
at 94, quoting from Hearings on Bills for the General Revision of the Copyright
Law before the House Committee on the Judiciary, 89th Cong., 1st Sess., ser.
8, pt. 3, p. 1706 (1966) (statement of John Schulman).
 Nature of the Copyrighted
Work. Second, the Act directs attention to the nature of the copyrighted
work. "A Time to Heal" may be characterized as an unpublished historical narrative
or autobiography. The law generally recognizes a greater need to disseminate
factual works than works of fiction or fantasy. See Gorman, Fact or Fancy?
The Implications for Copyright, 29 J.Copyright Soc. 560, 561 (1982).
[E]ven within the field of fact works, there are gradations as to the relative
proportion of fact and fancy. One may move from sparsely embellished maps
and directories to elegantly written biography. The extent to which one must
permit expressive language to be copied, in order to assure dissemination
of the underlying facts, will thus vary from case to case.
Id. at 563. Some of the briefer quotes from the memoirs
are arguably necessary adequately to convey the facts; for example, Mr. Ford's
characterization of the White House tapes as the "smoking gun" is perhaps so
integral to the idea expressed as to be inseparable from it. Cf. 1 Nimmer
§ 1.10[C]. But The Nation did not stop at isolated phrases, and instead excerpted
subjective descriptions and portraits of public figures whose power lies in
the author's individualized expression. Such [p*564] use, focusing on the most
expressive elements of the work, exceeds that necessary to disseminate the facts.
 The fact that a work is unpublished
is a critical element of its "nature." 3 Nimmer § 13.05[A]; Comment, 58 St.
John's L.Rev. at 613. Our prior discussion establishes that the scope of fair
use is narrower with respect to unpublished works. While even substantial quotations
might qualify as fair use in a review of a published work or a news account
of a speech that had been delivered to the public or disseminated to the press,
see House Report at 65, the author's right to control the first public
appearance of his expression weighs against such use of the work before its
release. The right of first publication encompasses not only the choice whether
to publish at all, but also the choices of when, where, and in what form first
to publish a work.
 In the case of Mr. Ford's manuscript,
the copyright holders' interest in confidentiality is irrefutable; the copyright
holders had entered into a contractual undertaking to "keep the manuscript confidential"
and required that all those to whom the manuscript was shown also "sign an agreement
to keep the manuscript confidential." App. to Pet. for Cert. 1C-20. While the
copyright holders' contract with Time required Time to submit its proposed article
seven days before publication, The Nation's clandestine publication afforded
no such opportunity for creative or quality control. Id. at C-18. It
was hastily patched together, and contained "a number of inaccuracies." App.
300b-300c (testimony of Victor Navasky). A use that so clearly infringes the
copyright holder's interests in confidentiality and creative control is difficult
to characterize as "fair."
 Amount and Substantiality
of the Portion Used. Next, the Act directs us to examine the amount and
substantiality of the portion used in relation to the copyrighted work as a
whole. In absolute terms, the words actually quoted were an insubstantial portion
of "A Time to Heal." The District Court, however, found that "[T]he Nation took
what was [p*565] essentially the heart of the book." 557 F.Supp. at 1072. We
believe the Court of Appeals erred in overruling the District Judge's evaluation
of the qualitative nature of the taking. See, e.g., Roy Export Co. Establishment
v. Columbia Broadcasting System, Inc., 503 F.Supp. at 1145 (taking of 55
seconds out of 1 hour and 29-minute film deemed qualitatively substantial).
A Time editor described the chapters on the pardon as "the most interesting
and moving parts of the entire manuscript." Reply Brief for Petitioners 16,
n. 8. The portions actually quoted were selected by Mr. Navasky as among the
most powerful passages in those chapters. He testified that he used verbatim
excerpts because simply reciting the information could not adequately convey
the "absolute certainty with which [Ford] expressed himself," App. 303, or show
that "this comes from President Ford," id. at 305, or carry the "definitive
quality" of the original, id. at 306. In short, he quoted these passages
precisely because they qualitatively embodied Ford's distinctive expression.
 As the statutory language indicates,
a taking may not be excused merely because it is insubstantial with respect
to the infringing work. As Judge Learned Hand cogently remarked, "no
plagiarist can excuse the wrong by showing how much of his work he did not pirate."
Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (CA2), cert.
denied, 298 U.S. 669 (1936). Conversely, the fact that a substantial portion
of the infringing work was copied verbatim is evidence of the qualitative value
of the copied material, both to the originator and to the plagiarist who seeks
to profit from marketing someone else's copyrighted expression.
 Stripped to the verbatim quotes,
[n8] the direct takings from the unpublished manuscript
constitute at least 13% of the infringing [p*566] article. See Meeropol v.
Nizer, 560 F.2d 1061, 1071 (CA2 1977) (copyrighted letters constituted less
than 1% of infringing work but were prominently featured). The Nation article
is structured around the quoted excerpts which serve as its dramatic focal points.
See Appendix to this opinion, post p. 570. In view of the expressive
value of the excerpts and their key role in the infringing work, we cannot agree
with the Second Circuit that the "magazine took a meager, indeed an infinitesimal,
amount of Ford's original language." 723 F.2d at 209.
 Effect on the Market.
Finally, the Act focuses on "the effect of the use upon the potential market
for or value of the copyrighted work." This last factor is undoubtedly the single
most important element of fair use. [n9] See
3 Nimmer § 13.05[A], at 13-76, and cases cited therein. "Fair use, when properly
applied, is limited to copying by others which [p*567] does not materially impair
the marketability of the work which is copied." 1 Nimmer § l.10[D], at 1-87.
The trial court found not merely a potential, but an actual, effect on the market.
Time's cancellation of its projected serialization and its refusal to pay the
$12,500 were the direct effect of the infringement. The Court of Appeals rejected
this factfinding as clearly erroneous, noting that the record did not establish
a causal relation between Time's nonperformance and respondents' unauthorized
publication of Mr. Ford's expression, as opposed to the facts taken from
the memoirs. We disagree. Rarely will a case of copyright infringement present
such clear-cut evidence of actual damage. Petitioners assured Time that there
would be no other authorized publication of any portion of the unpublished manuscript
prior to April 23, 1979. Any publication of material from chapters 1
and 3 would permit Time to renegotiate its final payment. Time cited The Nation's
article, which contained verbatim quotes from the unpublished manuscript, as
a reason for its nonperformance. With respect to apportionment of profits flowing
from a copyright infringement, this Court has held that an infringer who commingles
infringing and noninfringing elements "must abide the consequences, unless he
can make a separation of the profits so as to assure to the injured party all
that justly belongs to him." Sheldon v. Metro-Goldwyn Pictures Corp.,
309 U.S. 390, 406 (1940). Cf. 17 U.S.C. § 504(b) (the infringer is required
to prove elements of profits attributable to other than the infringed work).
Similarly, once a copyright holder establishes with reasonable probability the
existence of a causal connection between the infringement and a loss of revenue,
the burden properly shifts to the infringer to show that this damage would have
occurred had there been no taking of copyrighted expression. See 3 Nimmer
§ 14.02, at 14-7 - 14-8.1. Petitioners established a prima facie case
of actual damage that respondents failed to rebut. See Stevens Linen Associates,
[p*568] Inc. v. Mastercraft Corp., 656 F.2d 11, 15 (CA2 1981). The trial
court properly awarded actual damages and accounting of profits. See
17 U.S.C. § 504(b).
 More important, to negate fair
use, one need only show that, if the challenged use "should become widespread,
it would adversely affect the potential market for the copyrighted work."
Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. at 451
(emphasis added); id. at 484, and n. 36 (collecting cases) (dissenting
opinion). This inquiry must take account not only of harm to the original, but
also of harm to the market for derivative works. See Iowa State University
Research Foundation, Inc. v. American Broadcasting Cos., 621 F.2d 57 (CA2
1980); Meeropol v. Nizer, supra, at 1070; Roy Export v. Columbia Broadcasting
System, Inc., 503 F.Supp. at 1146.
If the defendant's work adversely affects the value of any of the rights
in the copyrighted work (in this case the adaptation [and serialization] right)
the use is not fair.
3 Nimmer § 13.05[B], at 13-77 - 13-78 (footnote omitted).
 It is undisputed that the factual
material in the balance of The Nation's article, besides the verbatim quotes
at issue here, was drawn exclusively from the chapters on the pardon. The excerpts
were employed as featured episodes in a story about the Nixon pardon -- precisely
the use petitioners had licensed to Time. The borrowing of these verbatim quotes
from the unpublished manuscript lent The Nation's piece a special air of authenticity
-- as Navasky expressed it, the reader would know it was Ford speaking, and
not The Nation. App. 300c. Thus it directly competed for a share of the market
for prepublication excerpts. The Senate Report states:
With certain special exceptions . . . a use that supplants any part of the
normal market for a copyrighted work would ordinarily be considered an infringement.
Senate Report at 65. [p*569] Placed in a broader perspective,
a fair use doctrine that permits extensive prepublication quotations from an
unreleased manuscript without the copyright owner's consent poses substantial
potential for damage to the marketability of first serialization rights in general.
Isolated instances of minor infringements, when multiplied many times, become
in the aggregate a major inroad on copyright that must be prevented.
 The Court of Appeals erred in
concluding that The Nation's use of the copyrighted material was excused by
the public's interest in the subject matter. It erred, as well, in overlooking
the unpublished nature of the work and the resulting impact on the potential
market for first serial rights of permitting unauthorized prepublication excerpts
under the rubric of fair use. Finally, in finding the taking "infinitesimal,"
the Court of Appeals accorded too little weight to the qualitative importance
of the quoted passages of original expression. In sum, the traditional doctrine
of fair use, as embodied in the Copyright Act, does not sanction the use made
by The Nation of these copyrighted materials. Any copyright infringer may claim
to benefit the public by increasing public access to the copyrighted work. See
Pacific & Southern Co. v. Duncan, 744 F.2d at 1499-1500. But Congress
has not designed, and we see no warrant for judicially imposing, a "compulsory
license" permitting unfettered access to the unpublished copyrighted expression
of public figures.
 The Nation conceded that its
verbatim copying of some 300 words of direct quotation from the Ford manuscript
would constitute an infringement unless excused as a fair use. Because we find
that The Nation's use of these verbatim excerpts from the unpublished manuscript
was not a fair use, the judgment of the Court of Appeals is reversed, and the
case is remanded for further proceedings consistent with this opinion.
 It is so ordered.
APPENDIX TO OPINION OF THE COURT
 The portions of The Nation article
which were copied verbatim from "A Time to Heal," excepting quotes from Government
documents and quotes attributed by Ford to third persons, are identified in
boldface in the text. See ante at 562, n. 7. The corresponding passages
in the Ford manuscript are footnoted.
THE FORD MEMOIRS
BEHIND THE NIXON PARDON
 In his memoirs, A Time To Heal,
which Harper & Row will publish in late May or early June, former President
Gerald R. Ford says that the idea of giving a blanket pardon to Richard M. Nixon
was raised before Nixon resigned from the Presidency by Gen. Alexander Haig,
who was then the White House chief of staff.
 Ford also writes that, but for
a misunderstanding, he might have selected Ronald Reagan as his 1976 running
mate, that Washington lawyer Edward Bennett Williams, a Democrat, was his choice
for head of the Central Intelligence Agency, that Nixon was the one who first
proposed Rockefeller for Vice President, and that he regretted his "cowardice"
[n1] in allowing Rockefeller to remove himself from
Vice Presidential contention. Ford also describes his often prickly relations
with Henry Kissinger.
 The Nation obtained
the 655-page typescript before publication. Advance excerpts from the book will
appear in Time in mid-April and in The Reader's Digest thereafter.
Although the initial print order has not been decided, the figure is tentatively
set at 50,000; it could change, depending upon the public reaction to the serialization.
 Ford's account of the Nixon
pardon contains significant new detail on the negotiations and considerations
that surrounded [p*571] it. According to Ford's version, the subject was first
broached to him by General Haig on August 1, 1974, a week before Nixon resigned.
General Haig revealed that the newly transcribed White House tapes were the
equivalent of the "smoking gun" [n2] and that
Ford should prepare himself to become President.
 Ford was deeply hurt by Haig's
Over the past several months, Nixon had repeatedly assured me that he
was not involved in Watergate, that the evidence would prove his innocence,
that the matter would fade from view. [n3]
 Ford had believed him, but he let
Haig explain the President's alternatives.
 He could "ride it out"
[n4] or he could resign, Haig said. He then listed
the different ways Nixon might resign, and concluded by pointing out that Nixon
could agree to leave in return for an agreement that the new President, Ford,
would pardon him. [n5] Although Ford said it
would be improper for him to make any recommendation, he basically agreed with
Haig's assessment and adds, "Because of his references to the pardon authority,
I did ask Haig about the extent of a President's pardon power." [n6]
 "It's my understanding from
a White House lawyer," Haig replied, "that a President does have authority to
grant a pardon even before criminal action has been taken against an individual."
 But because Ford had neglected
to tell Haig he thought the idea of a resignation conditioned on a pardon was
improper, his press aide, Bob Hartmann, suggested that Haig might well have
returned to the White House and told President Nixon that he had mentioned the
idea and Ford seemed comfortable with it. "Silence implies assent."
 Ford then consulted with White
House special counsel James St. Clair, who had no advice one way or the other
on the matter more than pointing out that he was not the lawyer who had given
Haig the opinion on the pardon. Ford also discussed the matter with Jack Marsh,
who felt that the mention of a pardon in this context was a "time bomb," and
with Bryce Harlow, who had served six Presidents and who agreed that the
mere mention of a pardon "could cause a lot of trouble." [n7]
 As a result of these various
conversations, Vice President Ford called Haig and read him a written statement:
I want you to understand that I have no intention of recommending what the
President should do about resigning or not resigning and that nothing we talked
about yesterday afternoon should be given any consideration in whatever decision
the President may wish to make.
 Despite what Haig had told him
about the "smoking gun" tapes, Ford told a Jackson, Mich., luncheon audience
later in the day that the President was not guilty of an impeachable offense.
"Had I said otherwise at that moment," he writes, "the whole house of
cards might have collapsed." [n8]
 In justifying the pardon, Ford
goes out of his way to assure the reader that "compassion for Nixon as an
individual [p*573] hadn't prompted my decision at all." [n9]
Rather, he did it because he had "to get the monkey off my back one way or
the other." [n10]
 The precipitating factor in
his decision was a series of secret meetings his general counsel, Phil Buchen,
held with Watergate Special Prosecutor Leon Jaworski in the Jefferson Hotel,
where they were both staying at the time. Ford attributes Jaworski with providing
some "crucial" information" [n11] -- i.e.,
that Nixon was under investigation in ten separate areas, and that the court
process could "take years." [n12] Ford cites
a memorandum from Jaworski's assistant, Henry S. Ruth Jr., as being especially
persuasive. Ruth had written:
If you decide to recommend indictment
I think it is fair and proper to notify Jack Miller and the White House sufficiently
in advance so that pardon action could be taken before the indictment.
 He went on to say: "One can make
a strong argument for leniency, and if President Ford is so inclined, I think
he ought to do it early, rather than late."
 Ford decided that court proceedings
against Nixon might take six years, that Nixon "would not spend time quietly
in San Clemente," [n13] and "it would be
virtually impossible for me to direct public attention on anything else."
 Buchen, Haig and Henry Kissinger
agreed with him. Hartmann was not so sure. [p*574]
 Buchen wanted to condition the
pardon on Nixon;s agreeing to settle the question of who would retain custody
and control over the tapes and Presidential papers that might be relevant to
various Watergate proceedings, but Ford was reluctant to do that.
 At one point, a plan was considered
whereby the Presidential materials would be kept in a vault at a Federal facility
near San Clemente, but the vault would require two keys to open it. One would
be retained by the General Services Administration, the other by Richard Nixon.
 The White House did, however,
want Nixon to make a full confession on the occasion of his pardon or, at a
minimum, express true contrition. Ford tells of the negotiation with Jack Miller,
Nixon's lawyer, over the wording of Nixon's statement. But as Ford reports Miller's
response, Nixon was not likely to yield. "His few meetings with his client
had shown him that the former President's ability to discuss Watergate objectively
was almost nonexistent." [n15]
 The statement they really wanted
was never forthcoming. As soon as Ford's emissary arrived in San Clemente, he
was confronted with an ultimatum by Ron Zeigler, Nixon's former press secretary.
"Lets get one thing straight immediately," Zeigler said. "President Nixon is
not issuing any statement whatsoever regarding Watergate, whether Jerry Ford
pardons him or not." Zeigler proposed a draft, which was turned down on the
ground that "no statement would be better than that." [n16]
They went through three more drafts before they agreed on the statement Nixon
finally made, which stopped far short of a full confession.
 When Ford aide Benton Becker
tried to explain to Nixon that acceptance of a pardon was an admission of guilt,
he [p*575] felt the President wasn't really listening. Instead, Nixon wanted
to talk about the Washington Redskins. And when Becker left, Nixon pressed on
him some cuff links and a tiepin "out of my own jewelry box."
 Ultimately, Ford sums up the
philosophy underlying his decision as one he picked up as a student at Yale
Law School many years before. "I learned that public policy often took precedence
over a rule of law. Although I respected the tenet that no man should be above
the law, public policy demanded that I put Nixon -- and Watergate -- behind
us as quickly as possible." [n17]
 Later, when Ford learned that
Nixon's phlebitis had acted up and his health was seriously impaired, he debated
whether to pay the ailing former President a visit. "If I made the trip,
it would remind everybody of Watergate and the pardon. If I didn't, people would
say I lacked compassion." [n18] Ford went:
 He was stretched out
flat on his back. There were tubes in his nose and mouth, and wires led from
his arms, chest and legs to machines with orange lights that blinked on and
off. His face was ashen, and I thought I had never seen anyone closer to death.
 The manuscript made available
to The Nation includes many references to Henry Kissinger and other personalities
who played a major role during the Ford years. [p*576]
 On Kissinger.
Immediately after being informed by Nixon of his intention to resign, Ford returned
to the Executive Office Building and phoned Henry Kissinger to let him know
how he felt. "Henry," he said, "I need you. The country needs you.
I want you to stay. I'll do every thing I can to work with you." [n20]
 "Sir," Kissinger replied, "it
is my job to get along with you, and not yours to get along with me."
 "We'll get along,"
Ford said. "I know we'll get along." Referring to Kissinger's joint jobs
as Secretary of State and National Security Adviser to the President, Ford said,
"I don't want to make any change. I think it's worked out well, so let's
keep it that way." [n21]
 Later, Ford did make the change
and relieved Kissinger of his responsibilities as National Security Adviser
at the same time that he fired James Schlesinger as Secretary of Defense. Shortly
thereafter, he reports, Kissinger presented him with a "draft" letter of resignation,
which he said Ford could call upon at will if he felt he needed it to quiet
dissent from conservatives who objected to Kissinger's role in the firing of
 On John Connally.
When Ford was informed that Nixon wanted him to replace Agnew, he told the President
he had "no ambition to hold office after January, 1977." [n22]
Nixon replied that that was good, since his own choice for his running mate
in 1976 was John Connally. "He'd be excellent," observed Nixon. Ford says he
had "no problem with that." [p*577]
 On the Decision to
Run Again. Ford was, he tells us, so sincere in his intention not to run
again that he thought he would announce it and enhance his credibility in the
country and the Congress, as well as keep the promise he had made to his wife,
 Kissinger talked him out of
You can't do that. It would be disastrous from a foreign policy point of
view. For the next two and a half years, foreign governments would know that
they were dealing with a lame-duck President. All our initiatives would be
dead in the water, and I wouldn't be able to implement your foreign policy.
It would probably have the same consequences in dealing with the Congress
on domestic issues. You can't reassert the authority of the Presidency if
you leave yourself hanging out on a dead limb. You've got to be an affirmative
 On David Kennerly, the White House
photographer. Schlesinger was arguing with Kissinger and Ford over the appropriate
response to the seizure of the Mayaguez. At issue was whether airstrikes
against the Cambodians were desirable; Schlesinger was opposed to bombings.
Following a lull in the conversation, Ford reports, up spoke the 30-year-old
White House photographer, David Kennerly, who had been taking pictures for the
 "Has anyone considered," Kennerly
asked, "that this might be the act of a local Cambodian commander who has just
taken it into his own hands to stop any ship that comes by?" Nobody, apparently,
had considered it, but following several seconds of silence, Ford tells us,
the view carried the day. "Massive airstrikes would constitute overkill,"
Ford decided. "It would be far better to have Navy jets from the Coral Sea
make surgical strikes against specific targets." [n23]
 On Nixon's Character.
Nixon's flaw, according to Ford, was "pride." "A terribly proud man,"
writes Ford, "he detested weakness in other people. I'd often heard him speak
disparagingly of those whom he felt to be soft and expedient. (Curiously, he
didn't feel that the press was weak. Reporters, he sensed, were his adversaries.
He knew they didn't like him, and he responded with reciprocal disdain.)"
 Nixon felt disdain for the Democratic
leadership of the House, whom he also regarded as weak. According to Ford, "His
pride and personal contempt for weakness had overcome his ability to tell the
difference between right and wrong," [n25] all
of which leads Ford to wonder whether Nixon had known in advance about Watergate.
 On hearing Nixon's resignation
speech, which Ford felt lacked an adequate plea for forgiveness, he was persuaded
that "Nixon was out of touch with reality." [n26]
 In February of last year, when
The Washington Post obtained and printed advance excerpts from H.R. Haldeman's
memoir, The Ends of Power, on the eve of its publication by Times Books,
The New York Times called The Post's feat "a second-rate burglary."
 The Post disagreed,
claiming that its coup represented "first-rate enterprise" and arguing that
it had burglarized nothing, that publication of the Haldeman memoir came under
the Fair Comment doctrine long recognized by the [p*579] courts, and that "There
is a fundamental journalistic principle here -- a First Amendment principle
that was central to the Pentagon Papers case."
 In the issue of The Nation
dated May 5, 1979, our special Spring Books number, we will discuss some of
the ethical problems raised by the issue of disclosure.
JUSTICE BRENNAN, with whom JUSTICE WHITE and JUSTICE MARSHALL join, dissenting.
 The Court
holds that The Nation's quotation of 300 words from the unpublished 200,000-word
manuscript of President Gerald R. Ford infringed the copyright in that manuscript,
even though the quotations related to a historical event of undoubted significance
-- the resignation and pardon of President Richard M. Nixon. Although
the Court pursues the laudable goal of protecting "the economic incentive to
create and disseminate ideas," ante at 558, 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. See 17 U.S.C. § 107.
I therefore respectfully dissent.
 This case presents two issues.
First, did The Nation's use of material from the Ford manuscript in forms other
than direct quotation from that manuscript infringe Harper & Row's copyright.
Second, did the quotation of approximately 300 words from the manuscript infringe
the copyright because this quotation did not constitute "fair use" within the
meaning [p*580] of § 107 of the Copyright Act. 17 U.S.C. § 107. The
Court finds no need to resolve the threshold copyrightability issue. The use
of 300 words of quotation was, the Court finds, beyond the scope of fair use,
and thus a copyright infringement. [n1] Because I
disagree with the Court's fair use holding, it is necessary for me to decide
the threshold copyrightability question.
enactment of copyright legislation by Congress under the terms of the Constitution
is not based upon any natural right that the author has in his writings .
. . , but upon the ground that the welfare of the public will be served and
progress of science and useful arts will be promoted by securing to authors
for limited periods the exclusive rights to their writings.
H.R.Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909). Congress
thus seeks to define the rights included in copyright so as to serve the public
welfare, and not necessarily so as to maximize an author's control over his
or her product. The challenge of copyright is to strike the
difficult balance between the interests of authors and
inventors in the control and exploitation of their writings and discoveries,
on the one hand, and society's competing interest in the free flow of ideas,
information, and commerce, on the other hand.
Sony Corp. of America v. Universal City Studios, Inc.,
464 U.S. 417, 429 (1984).
 The "originality" requirement
now embodied in § 102 of the Copyright Act is crucial to maintenance of the
appropriate balance between these competing interests. [n2]
Properly interpreted [p*581] in the light of the legislative
history, this section extends copyright protection to an author's literary form,
but permits free use by others of the ideas and information the author communicates.
See S.Rep. No. 93-983, pp. 107-108 (1974) ("Copyright does not preclude
others from using the ideas or information revealed by the author's work. It
pertains to the literary . . . form in which the author expressed intellectual
concepts"); H.R.Rep. No. 94-1476, pp. 56-57 (1976) (same); New York Times
Co. v. United States, 403 U.S. 713, 726, n. (1971) (BRENNAN, J., concurring)
("[T]he copyright laws, of course, protect only the form of expression, and
not the ideas expressed"). This limitation of protection to literary form precludes
any claim of copyright in facts, including historical narration.
 It is not to be supposed
that the framers of the Constitution, when they empowered Congress
to promote the progress of science and useful arts,
by securing for limited times to authors and inventors the exclusive right
to their respective writings and discoveries
(Const., Art I, § 8, par. 8), intended to confer upon
one who might happen to be the first to report a historic event the exclusive
right for any period to spread the knowledge of it.
International News Service v. Associated
Press, 248 U.S. 215, 234 (1918). Accord, Rosemont Enterprises, Inc. v.
Random House, Inc., 366 F.2d 303, 309 (CA2 1966), cert. denied, 385
U.S. 1009 (1967). See 1 Nimmer § 2.11[A], at 2-158. [n3]
 The "promotion
of science and the useful arts" requires this limit on the scope of an author's
control. Were an author able to prevent subsequent authors from using
concepts, ideas, or facts contained in his or her work, the creative process
would wither and scholars would be forced into unproductive replication of the
research of their predecessors. See Hoehling v. Universal City Studios, Inc.,
618 F.2d 972, 979 (CA2 1980). This limitation on copyright
also ensures consonance with our most important First Amendment values. Cf.
Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 577, n. 13 (1977).
Our "profound national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open," New York Times Co. v. Sullivan,
376 U.S. 254, 270 (1964), leaves no room for a statutory monopoly over information
 The arena of public debate
would be quiet, indeed, if a politician could copyright his speeches or a
philosopher his treatises, and thus obtain a monopoly on the ideas they contained.
Lee v. Runge, 404 U.S. 887, 893
(1971) (Douglas, J., dissenting from denial of certiorari). A broad dissemination
of principles, ideas, and factual information is crucial to the robust public
debate and informed citizenry that are "the essence of self-government." Garrison
v. Louisiana, 379 U.S. 64, 74-75 (1964). And every citizen must be permitted
freely to marshal ideas and facts in the advocacy of particular political choices.
 It follows that infringement
of copyright must be based on a taking of literary form, as opposed to the ideas
or information contained in a copyrighted work. Deciding whether an infringing
appropriation of literary form has occurred is difficult for at least two reasons.
First, the distinction between [p*583] literary form and information or ideas
is often elusive in practice. Second, infringement must be based on a substantial
appropriation of literary form. This determination is equally challenging.
Not surprisingly, the test for infringement has defied precise formulation.
[n5] In general, though, the inquiry proceeds along
two axes: how closely has the second author tracked the first author's
particular language and structure of presentation; and how much of the
first author's language and structure has the second author appropriated. [n6]
 In the present case the infringement
analysis must be applied to a historical biography in which the author has chronicled
the events of his White House tenure and commented on those events from his
unique perspective. Apart from the quotations, virtually all of the material
in The Nation's article indirectly recounted Mr. Ford's factual narrative of
the Nixon resignation and pardon, his latter-day reflections on some events
of his Presidency, and his perceptions of the personalities at the center of
those events. See ante at 570-579. No copyright can be claimed in this
information qua information. Infringement would thus have to be based
[p*584] on too close and substantial a tracking of Mr. Ford's expression of
this information. [n7]
 The Language.
Much of the information The Nation conveyed was not in
the form of paraphrase at all, but took the form of synopsis of lengthy discussions
in the Ford manuscript. [n8] In the course of this
summary presentation, The [p*585] Nation did use occasional sentences that closely
resembled language in the original Ford manuscript. [n9]
But these linguistic similarities are insufficient to constitute an infringement
for three reasons. First, some leeway must be given to subsequent authors
seeking to convey facts because those "wishing to express the ideas contained
in a factual work [p*586] often can choose from only a narrow range of expression."
Landsbeg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485, 488
(CA9 1984). Second, much of what The Nation paraphrased was material in which
Harper & Row could claim no copyright. [n10]
Third, The Nation paraphrased nothing approximating the totality of a single
paragraph, much less a chapter or the work as a whole. At most, The Nation paraphrased
disparate isolated sentences from the original. A finding
of infringement based on paraphrase generally requires far more close and substantial
a tracking of the original language than occurred in this case. See, e.g.,
Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F.2d 91
 The Structure of
Presentation. The article does not mimic Mr. Ford's structure. The information
The Nation presents is drawn from scattered sections of the Ford work, and does
not appear in the sequence in which Mr. Ford presented it. [n11]
Some of The Nation's discussion of the pardon does roughly
track the order in which the Ford manuscript presents information about the
pardon. With respect to this similarity, however, Mr. Ford has done no more
than present the facts [p*587] chronologically and cannot claim infringement
when a subsequent author similarly presents the facts of history in a chronological
manner. Also, it is difficult to suggest that a 2,000-word article could bodily
appropriate the structure of a 200,000-word book. Most of what Mr. Ford created,
and most of the history he recounted, were simply not represented in The Nation's
 When The
Nation was not quoting Mr. Ford, therefore, its efforts to convey the historical
information in the Ford manuscript did not so closely and substantially track
Mr. Ford's language and structure as to constitute an appropriation of literary
 The Nation
is thus liable in copyright only if the quotation of 300 words infringed any
of Harper & Row's exclusive rights under § 106 of the Act. Section 106 explicitly
makes the grant of exclusive rights "[s]ubject to section 107 through 118."
17 U.S.C. § 106. Section 107 states:
Notwithstanding the provisions of section 106, the fair
use of a copyrighted work . . . for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom use), scholarship
or research, is not an infringement of copyright.
 The question
here is whether The Nation's [p*588] quotation was a noninfringing fair use
within the meaning of § 107.
 Congress "eschewed a rigid,
bright-line approach to fair use." Sony Corp. of America v. Universal City
Studios, Inc., 464 U.S. at 449, n. 31. A court is to
apply an "equitable rule of reason" analysis, id. at 448, guided by four
statutorily prescribed factors:
(1) the purpose
and character of the use, including whether such use is of a commercial nature
or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion
used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market
for or value of the copyrighted work.
17 U.S.C. § 107. These factors are not
necessarily the exclusive determinants of the fair use inquiry, and do not mechanistically
resolve fair use issues; "no generally applicable definition is possible, and
each case raising the question must be decided on its own facts." H.R.Rep. No.
94-1476, at 65. See also id. at 66 ("[T]he endless variety of situations
and combinations of circumstances that can arise in particular cases precludes
the formulation of exact rules in the statute"); S.Rep. No. 94-473, p. 62 (1975).
The statutory factors do, however, provide substantial guidance to courts undertaking
the proper fact-specific inquiry.
 With respect to a work of
history, particularly the memoirs of a public official, the statutorily prescribed
analysis cannot properly be conducted without constant attention to copyright's
crucial distinction between protected literary form and unprotected information
or ideas. The question must always be: was the subsequent author's use of literary
form a fair use within the meaning of § 107, in light of the purpose for the
use, the nature of the copyrighted work, the amount of literary form
used, and the effect of this use of literary form on the value of or market
for the original? [p*589]
the inquiry to the propriety of a subsequent author's use of the copyright owner's
literary form is not easy in the case of a work of history. Protection
against only substantial appropriation of literary form does not ensure historians
a return commensurate with the full value of their labors. The literary form
contained in works like "A Time to Heal" reflects only a part of the labor that
goes into the book. It is the labor of collecting, sifting, organizing, and
reflecting that predominates in the creation of works of history such as this
one. The value this labor produces lies primarily in the information and ideas
revealed, and not in the particular collocation of words through which the information
and ideas are expressed. Copyright thus does not protect that which is often
of most value in a work of history, and courts must resist the tendency to reject
the fair use defense on the basis of their feeling that an author of history
has been deprived of the full value of his or her labor.
A subsequent author's taking of information and ideas is in no sense piratical,
because copyright law simply does not create any property interest in information
 The urge
to compensate for subsequent use of information and ideas is perhaps understandable.
An inequity seems to lurk in the idea that much of the fruit of the historian's
labor may be used without compensation. This, however, is not some unforeseen
byproduct of a statutory scheme intended primarily to ensure a return for works
of the imagination. Congress made the affirmative choice that the copyright
laws should apply in this way:
Copyright does not preclude others from using the ideas or information revealed
by the author's work. It pertains to the literary . . . form in which the
author expressed intellectual concepts.
H.R.Rep. No. 94-1476, at 56-57. This distinction
is at the essence of copyright. The copyright laws serve as the "engine of free
expression," ante at 558, only when the statutory monopoly does not choke
off multifarious indirect uses and consequent broad dissemination of information
and ideas. To ensure the progress of arts and sciences and the integrity [p*590]
of First Amendment values, ideas and information must not be freighted with
claims of proprietary right. [n13]
 In my judgment, the Court's
fair use analysis has fallen to the temptation to find copyright violation based
on a minimal use of literary form in order to provide compensation for the appropriation
of information from a work of history. The failure to distinguish
between information and literary form permeates every aspect of the Court's
fair use analysis, and leads the Court to the wrong result in this case. Application
of the statutorily prescribed analysis with attention to the distinction between
information and literary form leads to a straightforward finding of fair use
within the meaning of § 107.
 The Purpose of the
Use. The Nation's purpose in quoting 300 words of the Ford manuscript was,
as the Court acknowledges, news reporting. See ante at 561. The Ford
work contained information about important events of recent history. Two principals,
Mr. Ford and General Alexander Haig, were, at the time of The Nation's publication
in 1979, widely thought to be candidates for the Presidency. That The Nation
objectively reported the information in the Ford manuscript without independent
commentary in no way diminishes the conclusion that it was reporting news. A
typical news story differs from an editorial precisely in that it presents newsworthy
information in a straightforward and unelaborated manner. Nor does the source
of the information render The Nation's article any less a news report. Often
books and manuscripts, solicited and unsolicited, are [p*591] the subject matter
of news reports. E.g., New York Time Co. v. United States, 403 U.S. 713
(1971). Frequently, the manuscripts are unpublished at the time of the news
 Section 107 lists news reporting
as a prime example of fair use of another's expression. Like criticism and all
other purposes Congress explicitly approved in § 107, news reporting informs
the public; the language of § 107 makes clear that Congress saw the spread of
knowledge and information as the strongest justification for a properly limited
appropriation of expression. The Court of Appeals was therefore
correct to conclude that the purpose of The Nation's use -- dissemination of
the information contained in the quotations of Mr. Ford's work -- furthered
the public interest. 723 F.2d 195, 207-208 (CA2 1983). In light of the explicit
congressional endorsement in § 107, the purpose for which Ford's literary form
was borrowed strongly favors a finding of fair use.
 The Court
concedes the validity of the news reporting purpose, [n15]
but then quickly offsets it against three purportedly countervailing considerations.
First, the Court asserts that, because The Nation publishes for profit, its
publication of [p*592] the Ford quotes is a presumptively unfair commercial
use. Second, the Court claims that The Nation's stated desire to create a "news
event" signaled an illegitimate purpose of supplanting the copyright owner's
right of first publication. Ante at 562-563. Third, The Nation acted
in bad faith, the Court claims, because its editor "knowingly exploited a purloined
manuscript." Ante at 563.
 The Court's reliance on the
commercial nature of The Nation's use as "a separate factor that tends to weigh
against a finding of fair use," ante at 562, is inappropriate in the
present context. Many uses § 107 lists as paradigmatic examples of fair use,
including criticism, comment, and news reporting, are generally conducted
for profit in this country, a fact of which Congress was obviously aware when
it enacted § 107. To negate any argument favoring fair
use based on news reporting or criticism because that reporting or criticism
was published for profit is to render meaningless the congressional imprimatur
placed on such uses. [n16]
 Nor should The Nation's intent
to create a "news event" weigh against a finding of fair use. Such a rule, like
the [p*593] Court's automatic presumption against news reporting for profit,
would undermine the congressional validation of the news reporting purpose.
A news business earns its reputation, and therefore its readership, through
consistent prompt publication of news -- and often through "scooping" rivals.
More importantly, the Court's failure to maintain the distinction between information
and literary form colors the analysis of this point. Because Harper & Row
had no legitimate copyright interest in the information and ideas in the Ford
manuscript, The Nation had every right to seek to be the first to disclose these
facts and ideas to the public. The record suggests only that The Nation sought
to be the first to reveal the information in the Ford manuscript. The Nation's
stated purpose of scooping the competition should, under those circumstances,
have no negative bearing on the claim of fair use. Indeed the Court's
reliance on this factor would seem to amount to little more than distaste for
the standard journalistic practice of seeking to be the first to publish news.
 The Court's reliance on The
Nation's putative bad faith is equally unwarranted. No court has found that
The Nation possessed the Ford manuscript illegally or in violation of any common
law interest of Harper & Row; all common law causes of action have been
abandoned or dismissed in this case. 723 F.2d at 199-201. Even if the manuscript
had been "purloined" by someone, nothing in this record imputes culpability
to The Nation. [n17] On the
basis of the record in this case, the most that can be said is that The Nation
made use of the contents of the manuscript knowing the copyright owner would
not sanction the use. [p*594]
 At several points the Court
brands this conduct thievery. See, e.g., ante at 556, 563. This judgment
is unsupportable, and is perhaps influenced by the Court's unspoken tendency
in this case to find infringement based on the taking of information and ideas.
With respect to the appropriation of information and ideas other than the quoted
words, The Nation's use was perfectly legitimate, despite the copyright owner's
objection, because no copyright can be claimed in ideas or information. Whether
the quotation of 300 words was an infringement or a fair use within the meaning
of § 107 is a close question that has produced sharp division in both this Court
and the Court of Appeals. If the Copyright Act were held not to prohibit the
use, then the copyright owner would have had no basis in law for objecting.
The Nation's awareness of an objection that has a significant chance of being
adjudged unfounded cannot amount to bad faith. Imputing bad faith on the basis
of no more than knowledge of such an objection, the Court impermissibly prejudices
the inquiry and impedes arrival at the proper conclusion that the "purpose"
factor of the statutorily prescribed analysis strongly favors a finding of fair
use in this case.
 The Nature of the
Copyrighted Work. In Sony Corp. of America v. Universal
City Studios, Inc., we stated that "not . . . all copyrights are fungible"
and that "[c]opying a news broadcast may have a stronger claim to fair use than
copying a motion picture." 464 U.S. at 455, n. 40. These statements reflect
the principle, suggested in § 107(2) of the Act, that the scope of fair use
is generally broader when the source of borrowed expression is a factual or
historical work. See 3 Nimmer § 13.05[A], at 13-73 - 13-74. "[I]nformational
works," like the Ford manuscript, "that readily lend themselves to productive
use by others, are less protected." Sony Corp. of America v. Universal City
Studios, Inc., 464 U.S. at 496-497 (BLACKMUN, J., dissenting). Thus the
second statutory factor also favors a finding of fair use in this case. [p*595]
 The Court
acknowledges that "[t]he law generally recognizes a greater need to disseminate
factual works than works of fiction or fantasy," ante at 563, and that
"[s]ome of the briefer quotations from the memoir are arguably necessary to
convey the facts," ibid. But the Court discounts the force of this consideration,
primarily on the ground that "[t]he fact that a work is unpublished is a crucial
element of its `nature.'" Ante at 564. [n18]
At this point, the Court introduces into analysis of this case a categorical
presumption against prepublication fair use. See ante at 555 ("Under
ordinary circumstances, the author's right to control the first public appearance
of his undisseminated expression will outweigh a claim of fair use").
categorical presumption is unwarranted on its own terms and unfaithful to congressional
intent. [n19] Whether a [p*596] particular
prepublication use will impair any interest the Court identifies as encompassed
within the right of first publication, see ante at 552-555, [n20]
will depend on the nature of the copyrighted work, the timing of prepublication
use, the amount of expression used, and the medium in which the second author
communicates. Also, certain uses might be tolerable for some purposes but not
for others. See Sony Corp. of America v. Universal City Studios, Inc., supra,
at 490, n. 40. The Court is ambiguous as to whether it relies on the force of
the presumption against prepublication fair use or an analysis of the purpose
and effect of this particular use. Compare ante at 552-555, with ante
at 564. To the extent the Court relies on the presumption,
it presumes intolerable [p*597] injury -- in particular the usurpation of the
economic interest [n21] -- based on no more than
a quick litmus test for prepublication timing. Because "Congress has plainly
instructed us that fair use analysis calls for a sensitive balancing of interests,"
we held last Term that the fair use inquiry could never be resolved on the basis
of such a "two-dimensional" categorical approach. See Sony Corp. of America
v. Universal City Studios, Inc., 464 U.S. at 455, n. 40 (rejecting categorical
requirement of "productive use").
 To the extent the Court purports
to evaluate the facts of this case, its analysis relies on sheer speculation.
The quotation of 300 words from the manuscript infringed no privacy interest
of Mr. Ford. This author intended the words in the manuscript to be a public
statement about his Presidency. Lacking, therefore, is the "deliberate choice
on the part of the copyright owner" to keep expression confidential,
a consideration that the Senate Report -- in the passage on which the Court
places great reliance, see ante at 553 --recognized as the impetus behind
narrowing fair use for unpublished works. See S.Rep. No. 94-473, at 64.
See also 3 Nimmer § 13.05[A], at 13-73 ("[T]he scope of the fair use
doctrine is considerably narrower with respect to unpublished works which
are held confidential by their copyright owners") (emphasis added). What
the Court depicts as the copyright owner's "confidentiality" interest, see
ante at 564, is not a privacy interest at all. Rather, it is no more than
an economic interest in capturing the full value of initial release of information
to [p*598] the public, and is properly analyzed as such. See infra at
602-603. Lacking too is any suggestion that The Nation's use interfered with
the copyright owner's interest in editorial control of the manuscript. The Nation
made use of the Ford quotes on the eve of official publication.
 Thus, the only interest The
Nation's prepublication use might have infringed is the copyright owner's interest
in capturing the full economic value of initial release. By considering this
interest as a component of the "nature" of the copyrighted work, the Court's
analysis deflates The Nation's claim that the informational nature of the work
supports fair use without any inquiry into the actual or potential economic
harm of The Nation's particular prepublication use. For this reason, the question
of economic harm is properly considered under the fourth statutory factor --
the effect on the value of or market for the copyrighted work, 17 U.S.C. § 107(4)
-- and not as a presumed element of the "nature" of the copyright.
 The Amount and Substantiality
of the Portion Used. More difficult questions arise
with respect to judgments about the importance to this case of the amount and
substantiality of the quotations used. The Nation quoted only approximately
300 words from a manuscript of more than 200,000 words, and the quotes are drawn
from isolated passages in disparate sections of the work. The judgment that
this taking was quantitatively "infinitesimal," 723 F.2d at 209, does not dispose
of the inquiry, however. An evaluation of substantiality in qualitative terms
is also required. Much of the quoted material was Mr. Ford's matter-of-fact
representation of the words of others in conversations with him; such quotations
are "arguably necessary adequately to convey the facts," ante at 563,
and are not rich in expressive content. Beyond these quotations, a portion of
the quoted material was drawn from the most poignant expression in the Ford
manuscript; in particular The Nation made use of six examples of Mr. Ford's
expression of his reflections on [p*599] events or perceptions about President
Nixon.[n22] The fair use inquiry turns on the propriety
of the use of these quotations with admittedly strong expressive content.
Court holds that, "in view of the expressive value of the excerpts and their
key role in the infringing work," this third statutory factor disfavors a finding
of fair use. [n23] To support [p*600] this conclusion,
the Court purports to rely on the District Court factual findings that The Nation
had taken "the heart of the book." 557 F.Supp. 1062, 1072 (SDNY 1983). This
reliance is misplaced, and would appear to be another result of the Court's
failure to distinguish between information and literary form. When the District
Court made this finding, it was evaluating not the quoted words at issue here,
but the "totality" of the information and reflective commentary in the Ford
work. Ibid. The vast majority of what the District Court considered the
heart of the Ford work, therefore, consisted of ideas and information The Nation
was free to use. It may well be that, as a qualitative matter, most of the value
of the manuscript did lie in the information and ideas The Nation used. But
appropriation of the "heart" of the manuscript in this sense is irrelevant to
copyright analysis because copyright does not preclude a second author's use
of information and ideas.
tacitly recognizing that reliance on the District Court finding is unjustifiable,
the Court goes on to evaluate independently the quality of the expression appearing
in The Nation's article. The Court states that "[t]he portions actually quoted
were selected by Mr. Navasky as among the most powerful passages." Ante
at 565. On the basis of no more than this observation, and perhaps also inference
from the fact that the quotes were important to The Nation's article, [n24]
the Court adheres to its conclusion that The Nation appropriated the heart of
the Ford manuscript. [p*601]
 At least with respect to the
six particular quotes of Mr. Ford's observations and reflections about President
Nixon, I agree with the Court's conclusion that The Nation appropriated some
literary form of substantial quality. I do not agree, however, that the substantiality
of the expression taken was clearly excessive or inappropriate to The Nation's
news reporting purpose.
 Had these quotations been
used in the context of a critical book review of the Ford work, there is little
question that such a use would be fair use within the meaning of § 107 of the
Act. The amount and substantiality of the use -- in both
quantitative and qualitative terms -- would have certainly been appropriate
to the purpose of such a use. It is difficult to see how the use of these quoted
words in a news report is less appropriate. The Court acknowledges as much:
[E]ven substantial quotations might qualify as a fair
use in a review of a published work or a news account of a speech that had
been delivered to the public.
See ante at 564. With respect to
the motivation for the pardon and the insights into the psyche of the fallen
President, for example, Mr. Ford's reflections and perceptions are so laden
with emotion and deeply personal value judgments that full understanding is
immeasurably enhanced by reproducing a limited portion of Mr. Ford's own words.
The importance of the work, after all, lies not only in revelation of previously
unknown fact, but also in revelation of the thoughts, ideas, motivations, and
fears of two Presidents at a critical moment in our national history. Thus,
while the question is not easily resolved, it is difficult to say that the use
of the six quotations was gratuitous in relation to the news reporting purpose.
 Conceding that even substantial
quotation is appropriate in a news report of a published work, the Court
would seem to agree that this quotation was not clearly inappropriate in relation
to The Nation's news reporting purpose. For the Court, the determinative factor
is again that the substantiality of the use was inappropriate in relation to
the prepublication [p*602] timing of that use. That is really an objection to
the effect of this use on the market for the copyrighted work, and is properly
evaluated as such.
 The Effect on the
Market. The Court correctly notes that the effect on the market "is undoubtedly
the single most important element of fair use." Ante at 566, citing 3
Nimmer § 13.05[A], at 13-76, and the Court properly focuses on whether The Nation's
use adversely affected Harper & Row's serialization potential and not merely
the market for sales of the Ford work itself. Ante at 566-567. Unfortunately,
the Court's failure to distinguish between the use of information and the appropriation
of literary form badly skews its analysis of this factor.
purposes of fair use analysis, the Court holds, it is sufficient that the entire
article containing the quotes eroded the serialization market potential
of Mr. Ford's work. Ante at 567. On the basis of Time's cancellation
of its serialization agreement, the Court finds that "[r]arely will a case of
copyright infringement present such clear-cut evidence of actual damage." Ibid.
In essence, the Court finds that, by using some quotes in a story about the
Nixon pardon, The Nation "competed for a share of the market of prepublication
excerpts" ante at 568, because Time planned to excerpt from the chapters
about the pardon.
 The Nation's publication indisputably
precipitated Time's eventual cancellation. But that does not mean that The Nation's
use of the 300 quoted words caused this injury to Harper & Row. Wholly apart
from these quoted words, The Nation published significant information and ideas
from the Ford manuscript. If it was this publication of information, and not
the publication of the few quotations, that caused Time to abrogate its serialization
agreement, then whatever the negative effect on the serialization market, that
effect was the product of wholly legitimate activity.
 The Court
of Appeals specifically held that "the evidence does not support a finding that
it was the very limited use of expression per se which led to Time's
decision not to print excerpts." [p*603] 723 F.2d at 208. I fully agree with
this holding. If The Nation competed with Time, the competition was not for
a share of the market in excerpts of literary form, but for a share of the market
in the new information in the Ford work. That the information, and not the literary
form, represents most of the real value of the work in this case is perhaps
best revealed by the following provision in the contract between Harper &
Row and Mr. Ford:
that the value of the rights granted to publisher hereunder would be substantially
diminished by Author's public discussion of the unique information not previously
disclosed about Author's career and personal life which will be included in
the Work, and Author agrees that Author will endeavor not to disseminate any
such information in any media, including television, radio and newspaper and
magazine interviews prior to the first publication of the work hereunder.
App. 484. The contract thus makes clear
that Harper & Row sought to benefit substantially from monopolizing the
initial revelation of information known only to Ford.
 Because The Nation was the
first to convey the information in this case, it did perhaps take from Harper
& Row some of the value that publisher sought to garner for itself through
the contractual arrangement with Ford and the license to Time. Harper &
Row had every right to seek to monopolize revenue from that potential market
through contractual arrangements, but it has no right to set up copyright as
a shield from competition in that market, because copyright does not protect
information. The Nation had every right to seek to be the first to publish that
information. [n25] [p*604]
 Balancing the Interests.
Once the distinction between information and literary form is made clear, the
statutorily prescribed process of weighing the four statutory fair use factors
discussed above leads naturally to a conclusion that The Nation's limited use
of literary form was not an infringement. Both the purpose of the use and the
nature of the copyrighted work strongly favor the fair use defense here. The
Nation appropriated Mr. Ford's expression for a purpose Congress expressly authorized
in § 107 and borrowed from a work whose nature justifies some appropriation
to facilitate the spread of information. The factor that is perhaps least favorable
to the claim of fair use is the amount and substantiality of the expression
used. Without question, a portion of the expression appropriated was
among the most poignant in the Ford manuscript. But it is difficult to conclude
that this taking was excessive in relation to the news reporting purpose.
In any event, because the appropriation of literary form -- as opposed to the
use of information -- was not shown to injure Harper & Row's economic interest,
any uncertainty with respect to the propriety of the amount of expression borrowed
should be resolved in favor of a finding of fair use. [n26]
In light of the circumscribed scope of the quotation in The Nation's article
and the undoubted validity of the purpose [p*605] motivating that quotation,
I must conclude that the Court has simply adopted an exceedingly narrow view
of fair use in order to impose liability for what was in essence a taking of
 The Court's exceedingly narrow
approach to fair use permits Harper & Row to monopolize information. This
holding "effect[s] an important extension of property rights and a corresponding
curtailment in the free use of knowledge and of ideas." International News
Service v. Associated Press, 248 U.S. at 263 (Brandeis, J., dissenting).
The Court has perhaps advanced the ability of the historian -- or at least the
public official who has recently left office -- to capture the full economic
value of information in his or her possession. But the Court does so only by
risking the robust debate of public issues that is the "essence of self-government."
Garrison v. Louisiana, 379 U.S. at 74-75. The Nation was providing the
grist for that robust debate. The Court imposes liability upon The Nation for
no other reason than that The Nation succeeded in being the first to provide
certain information to the public.
 I dissent.