Copyrighting Clinton

Book publisher says rights were violated by early newspaper reports

From the Summer 2004 issue of The News Media & The Law, page 36.

By Corinna Zarek

In theory, the embargo of former President Bill Clinton’s much-anticipated memoir was a great way to keep its contents under wraps. In practice, however, a president’s life is rarely private.

Just days before the June 22 release of My Life — for which Clinton reportedly received a $10 million advance — both The Associated Press and The New York Times obtained copies of the book and wrote lengthy articles discussing Clinton’s take on the Monica Lewinsky affair, his impeachment trial, the Whitewater inquiry and Kenneth Starr’s grand jury investigation.

Following the June 18 release of the AP article, which was picked up by newspapers all over the country, attorneys for the Alfred A. Knopf Publishing Group sent the wire service a letter asking that it “cease and desist from unauthorized and illegal discussion, publication and dissemination of material from the book,” Knopf attorney Jonathan Fine said.

Because the AP story and the Times‘ June 19 story and June 20 review contained quotations from and descriptions of My Life, Fine says that the publisher’s copyright was violated. The news organizations counter that what they gleaned from the book and reported on was a “fair use” of the material.

It’s an argument that may eventually be resolved in court, but with a three-year statute of limitations on copyright suits, Knopf is in no rush.

The AP article, written by Hillel Italie, quoted relatively little from My Life, instead paraphrasing portions of the book’s contents. The following day, the Times published a similar front-page story, which, like the AP piece, had very few quoted passages. Times reporter John M. Broder touched on more subjects than did the AP, including Clinton’s record on terrorism, his childhood struggles and the use of the book to “settle scores” with the National Rifle Association, Republicans in Congress and the U.S. Supreme Court.

On June 20, The Times ran a 1,500-word critique of My Life, which reviewer Michiko Kakutani called “sloppy, self-indulgent and often eye-crossingly dull — the sound of one man prattling away, not for the reader, but for himself.” Like the news story the previous day, the Times‘ use of direct quotations from the book was “very sparing” and within the boundaries of fair use under copyright law, said Toby Usnik, director of public relations for The New York Times Co.

“Copyrights protect expression, not facts,” Usnik said. “We believe it is fair use if, in our own words, we write about a newsworthy book that is about to be published, or review that book. That is what we did in this case.”

Journalists Defining ‘Fair Use’

Portions of copyrighted materials can be published or reprinted as “fair use” so long as they are used for certain purposes — comment, criticism, news reporting, research and scholarship, nonprofit education or parody.

Alfred Yen, a professor of copyright law at the Boston College School of Law, said the news organization’s fair use of copyrighted material would be determined by measuring four factors: the purpose and character of the articles, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work, and the effect the articles would have on the marketplace of copyrighted work.

“Chances are, both articles would be fair use after the book was released,” Yen said.

But even though the articles came out before the book’s release, Yen said Knopf has a tough case to make. Because Clinton is such a huge public figure, the scales would likely tip in favor of the press, Yen said, calling My Life “an important book by an important person.”

“You can’t tell the press they can’t write about Clinton,” he added.

And yet, that’s exactly what the U.S. Supreme Court told The Nation in 1979 after the magazine obtained a copy of former President Gerald Ford’s memoir prior to its release and published an article containing nearly 300 words of quoted passages from the 200,000-word unpublished manuscript. After Time magazine canceled its agreement with publisher Harper & Row to run excerpts of the book, titled The Ford Memoirs — Behind the Nixon Pardon, Harper & Row sued The Nation for copyright infringement.

The court ruled in favor of the publisher, reasoning that The Nation article contained material that revealed the essence of the book — an explanation of why Ford pardoned Nixon — and that an author has control over the first public appearance of his work. Justice Sandra Day O’Connor, writing for the 6-3 majority, reversed the appeals court’s decision and reinstated a $12,500 award for actual damages.

Yen acknowledged that writing about My Life before it came out could undermine any fair use argument. That said, he remains somewhat doubtful that Knopf, a division of Random House Inc., would ever win a claim for actual damages.

“This book is selling like hot cakes,” Yen said. “There is not much damage — what jury would say President Clinton and the publisher lost a lot of money because of some newspaper articles?”

Knopf initially printed 1.5 million copies of My Life and put out an additional 725,000 copies prior to its release. Sales of more than 400,000 broke first-day, nonfiction records in the U.S.

Keeping the Book Under Wraps

Preventing leaks of information is never easy. Preventing leaks of information contained within a high-profile presidential memoir is close to impossible.

Fine said Knopf chose not to provide any advance copies of My Life for review because it thought the book would be best marketed if it was held until the release date. “When we publish a book like this, we feel it should be embargoed in the sense that it is the most effective way to publicize the book,” he said.

To ensure that no one would leak copies of My Life or information regarding its contents, Knopf required retailers, distributors and delivery people who would come into contact with the book before its release to sign a confidentiality agreement. The company also took additional security measures at its warehouses where the books were stored.

“We heard that media organizations were offering bounties to reporters who could obtain copies of the book,” Fine said.

The rationale behind embargoing books, aside from a marketing strategy, is to draw interest from publications for serial rights to print excerpts of the book. People, Time and Good Housekeeping magazines, America Online and Infinity Radio are some of the media outlets that purchased rights to publish portions of My Life.

When contents of embargoed books are disclosed, and when the paying customers with serial rights are no longer the first to have exclusive information, the contractual arrangement may be called into jeopardy, with the publisher to be held liable. Fine would not comment on whether any media entity has lodged a complaint against Knopf regarding the newspaper articles, but did stress the value of protecting one’s intellectual property.

“If you enter into agreements such as first serial rights or exclusive interviews,” he said, “the need to protect the book is very important.”

How the book was obtained by the AP and Times could become an issue in any future court battle, and is speculated to have been a peripheral issue in the Nation case.

“In the Ford case, the defendant did not legitimately get a copy of the book,” Yen said. Some scholars think the court weighed that against the Nation, considering also the fact that the publisher properly guarded the materials, or was faultless in the Nation‘s unlawful procurement of its book.

The Times reported that it obtained an advance copy of My Life from a bookstore, while the AP has not disclosed how it received a copy. AP spokesman Jack Stokes refused to comment on the issue, saying only that they “tend not to talk about it at all.”