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. Every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright.
Petitioners were contracted by the President to publish his yet unwritten memoirs. Copyright was given to the petitioners. As the memoirs were nearing completion, the petitioners negotiated a prepublication licensing agreement which would authorize Time Magazine to publish excerpts from the memoirs in exchange for a fee. But before the Time article’s scheduled release, an unauthorized source provided another magazine company, the respondent, with the unpublished manuscript. The respondent published excerpts from the President’s memoirs in their article. As a result, Time Magazine reneged its agreement with the petitioners, while the latter sued the respondent for copyright infringement. The respondent set up the defense of fair use and that their use of the material was excused by the public’s interest on the matter. The lower court ruled for the respondents.
Does lifting excerpts on the unpublished memoirs of the President amount to fair use?
Respondents failed to establish that their unauthorized use of quotations from a public figure's unpublished manuscript was sanctioned by the fair use doctrine. Respondents admitted to lifting verbatim quotes. The unpublished nature of book was a key factor that negated the defense of fair use. The four statutory factors relevant to determining whether the use was fair were not satisfied. Respondents use had the intended purpose of supplanting copyright holder's commercially valuable right of first publication. The use infringed upon the copyright holder's interest in confidentiality and creative control. Respondents took what was essentially the heart of the book and copied much of it verbatim. Finally, the use of copyrighted material had an actual effect on the market for first rights to publish excerpts from the book.