In the 1984 case Harper & Row, Publishers, Inc. et al. v. Nation Enterprises et al., the U.S Supreme Court ruled in favor of Harper & Row (plaintiffs), holding that The Nation magazine's unauthorized use of excerpts from President Ford's unpublished memoir constituted copyright infringement and was not protected under fair use doctrine. The court reasoned that unpublished works hold a higher level of protection against fair use as they embody the author’s creative process and their right to control when and how it will be made public for the first time is paramount. Furthermore, because The Nation had used verbatim quotes representing "the heart" of Ford's work before its official release date, this act negatively impacted potential market value for serialization rights which further weighed against a finding of fair use.

In the dissenting opinion for Harper & Row, Publishers, Inc. v. Nation Enterprises et al., Justice Brennan argued that copyright law should not be used to suppress the free dissemination of ideas and information in a democratic society. He contended that The Nation's use of excerpts from President Ford's memoirs constituted fair use because it served an important public interest by contributing to political discourse about a former president’s pardon of Richard Nixon - a significant historical event. Furthermore, he disagreed with the majority's view on potential market harm caused by The Nation’s publication; instead asserting that such speculative damages should not override First Amendment considerations or restrict journalistic freedom. In his view, punishing The Nation would discourage future journalists from publishing newsworthy content out of fear they might infringe upon someone else’s copyright claims.