dissenting:
I share fully the majority’s view that the copyright laws should not be used to impede the public’s vital access to information and knowledge. However, in its endeavor to reaffirm the important role of a free press in our democracy, the majority fails to articulate clearly the legal principles on which it relies. Because I believe that a more precise legal analysis leads to a different result here, I must respectfully dissent.
I
The majority concedes that “A Time To Heal” is copyrightable, but refuses to accord it copyright protection because The Nation supposedly took “facts” and not “expression” from the work. The majority tries to ascertain whether the contents of certain passages of the memoirs are themselves copyrightable, even though copyright protection is not given to passages but to a work as a whole.
I disagree with the majority’s statement that President Ford’s description of his state of mind at the time of the Nixon pardon is a fact not entitled to copyright protection. The majority maintains that “states of mind” which play a role in the crucial political decisions of public officials are as much “fact” as any act the official may take. While a person’s state of mind is a “fact,” his expression of his state of mind is not. Because state of mind is elusive and not susceptible to empirical proof, an author’s state of mind is what the author describes it to be. This description may be accurate or a post hoc rationalization or downright false, but it is truly the reflection of the author at the time of writing and is therefore expression entitled to protection.
*213But I will assume arguendo that “states of mind” are fact because the majority opinion has a greater flaw. The opinion concludes that because the passages in question contain “facts,” paraphrasing these factually-oriented passages cannot constitute copyright infringement. It thus confines its discussion of copyright infringement to “approximately 300 words that are copyrighted.”
I do not agree with the majority position that printed facts are never entitled to the protection of the copyright laws. It is no less a copyright infringement to reproduce copyrightable works consisting of “facts” than to reproduce those consisting of “expression.” There are many cases which hold that copying of works largely comprised of facts constitutes copyright infringement. See, e.g., Schroeder v. William Morrow & Co., 566 F.2d 3 (7th Cir.1977) (copying of names and addresses of gardening suppliers from plaintiff’s listings and descriptions of same held to constitute infringement); Adventures In Good Eating, Inc. v. Best Places To Eat, Inc., 131 F.2d 809 (7th Cir.1942) (infringement to copy restaurant listings); Quinto v. Legal Times of Washington, 506 F.Supp. 554 (D.D.C. 1981) (infringement to reprint most of article describing perquisites offered by law firms and containing interviews with summer associates, even though article consisted primarily of facts or data in public domain); Northwestern Bell Telephone Co. v. Bedco of Minnesota, Inc., 501 F.Supp. 299 (D.Minn.1980) (infringement to copy and publish information in telephone directory without independent research). See generally Gorman, Copyright Protection for the Collection and Representation of Facts, 76 Harv.L.Rev. 1569 (1963); 1 M. Nimmer, Nimmer on Copyright §§ 2.04[B], 2.11[D] (1983). This Court has acknowledged that verbatim copying of a factual work is actionable as copyright infringement. Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 980 (2d Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980). Paraphrasing, which is what took place here, is the equivalent of copying for purposes of the copyright laws. See, e.g., Donald v. Zack Meyer’s T.V. Sales and Service, 426 F.2d 1027, 1030 (5th Cir.1970), cert. denied, 400 U.S. 992, 91 S.Ct. 459, 27 L.Ed.2d 441 (1971); West Publishing Co. v. Edward Thompson Co., 176 F. 833, 838 (2d Cir.1910); Addison-Wesley Publishing Co. v. Brown, 223 F.Supp. 219, 227-28 (E.D.N.Y.1963).
Whether there is a copyright infringement simply turns on whether there has been an unlawful appropriation of copyrightable work. In Meredith Corp. v. Harper & Row, Publishers, Inc., 378 F.Supp. 686 (S.D.N.Y.), aff’d, 500 F.2d 1221 (2d Cir. 1974) (per curiam), Meredith published a textbook on child development which was merely a rewriting and rearrangement of a Harper & Row text in the same field. The Meredith text was held to infringe on the Harper & Row copyright even though the text contained some independent ideas of the author. Similarly, in Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir.1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978), defendant’s abstracts of plaintiff’s copyrighted1 financial reports were held to be copyright infringement.
The effect of the above cases is not to provide protection for the facts themselves but for the author’s original articulation and presentation of the facts. Copyright laws protect originality. They are meant to safeguard the embodiment in a tangible medium of an author’s intellectual labors. See 17 U.S.C. § 102(a) (1982); Higgins v. Keuffel, 140 U.S. 428, 431, 11 S.Ct. 731, 732, 35 L.Ed. 470 (1891). They thus offer protection against a work that is substantially an unoriginal appropriation of the copyrighted work, i.e., “substantially similar.” See Warner Bros. Inc. v. American Broadcasting Companies, Inc., 654 F.2d 204, 207-08 (2d Cir.1981) (discussing the “substantially similar” test of copyright infringement). Consequently, while a second author may feel free to use facts that are in the first work, he cannot appropriate expression, method of treatment, emphasis, selection of *214exact details, or anything else that makes the copyrighted work original. Wainwright, 558 F.2d at 95-96.
In the cases relied on by the majority, most notably Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980), and Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967), the allegedly infringing works were original. In Hoehling, this Court refused to find copyright infringement where the second author relied on the first work for some facts but wrote his own original account, did a great deal of original research and did not copy or paraphrase any part of the book (although he used some of the same literary devices as did the first author). Similarly, in Rosemont, no infringement was found where the second author wrote an original biography, did a substantial amount of original research and copied only a few passages for his 304-page work. These cases are distinguishable from the instant case in which the Nation article, almost entirely a paraphrase, was of trivial originality and contained no independent research by the author. Thus, this case has no similarity to Hoehling and Rosemont; culling language about facts from those cases does not alter the reality that the allegedly infringing works in those cases were original while the Nation article was not.
To determine whether the allegedly infringing work appropriates the originality of the protected work, a comparison of both works in their entirety is necessary. Judge Owen’s view that the “totality” of the memoirs is protected is not erroneous. Taking into account all of the factors that make a work original, the question of infringement becomes much more a decision to be made on a case-by-ease basis than a mechanical determination based on the number of “words that are copyrighted” in the allegedly infringing work. This case-by-case approach is consistent with the prevailing law that determining whether there is “substantial similarity” between two works is a question to be determined by the trier of fact. See, e.g., Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir.1966).
The majority’s fear that an affirmance here would “[permit] a public official to take private possession of the most important details of a nation’s historical and political life by adding language here and there ....” is unjustified. The Nation was perfectly free to use whatever facts were contained in Ford’s memoirs as part of its own original work. What The Nation could not do was compile a work purportedly reporting certain “facts” that did no more than appropriate the same quotes, expressions, selection of language, events, corroboration and recreations that were present in the Ford memoirs and that added nothing original of its own.
Thus, The Nation’s paraphrasing of parts of the Ford memoirs constitutes copyright infringement under 17 U.S.C. § 501 (1982) unless it falls within the “fair use” exception.
II
The “fair use” exception, now codified at 17 U.S.C. § 107 (1982), allows certain unauthorized uses of copyrighted material without civil liability if those uses advance social, educational or scientific causes. See, e.g., Berlin v. E.C. Publications, Inc., 329 F.2d 541, 544-45 (2d Cir.), cert, denied, 379 U.S. 822, 85 S.Ct. 46, 13 L.Ed.2d 33 (1964). The heart of the fair use doctrine is that a secondary use of an original work may be tolerated if the use has social value or is valuable for the information it disseminates. See, e.g., Williams & Wilkins Co. v. United States, 487 F.2d 1345, 203 Ct.Cl. 74 (1973) (large-scale photocopying of medical articles by government research institute and its library), aff’d by an equally divided Court, 420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d 264 (1975) (per curiam); Loew’s Inc. v. Columbia Broadcasting System, Inc., 131 F.Supp. 165, 175-76 (S.D.Cal.1955) (discussing the use of extensive quotations in reviewing the fair use doctrine), aff’d sub nom. Benny v. Loew’s Inc., 239 F.2d 532 (9th Cir.1956), aff’d by an equally divided *215Court, 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583 (1958) (per curiam). The fair use doctrine strikes the balance between the First Amendment and the Copyright Act, or between “the public interest in the free flow of ideas and information [and] the copyright holder’s interest in exclusive proprietary control of his work.” Roy Export Company Establishment of Vaduz, Liechtenstein v. Columbia Broadcasting System, Inc., 672 F.2d 1095, 1099 n. 9 (2d Cir.), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982). Undoubtedly, the value in ensuring the public’s access to knowledge is the reason news reporting exemplifies fair use. Thus, if The Nation’s article constituted a dissemination of news it might be protected as a “fair use” of the Ford memoirs.
I agree with the majority that the holding below that the Nation article was not news was clearly erroneous. Courts should be chary of deciding what is and what is not news. Certainly there is news value in the fact that a former president of the United States has written a book detailing his state of mind and motivation in pardoning his predecessor. The Nation was free to print an article disclosing that fact and describing the book. Some of the things it might choose to include are the publisher’s name, publication date, price and topics covered. The fact that an article covers a newsworthy subject or event, however, does not automatically eliminate the author’s rights in his literary property. There are limits to what a news article may legitimately take from a copyrighted work.
That the article contains news is only the beginning of the inquiry into whether it constitutes fair use of the copyrighted material. The court must also consider “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3) (1982). A news article is only a fair use if it takes what is fair and reasonable for the news story. Otherwise a news publication could with impunity run a story stating that a public figure authored a copyrighted book and then reprint the entire contents of the book. In that situation no one would argue that the newsworthiness of the book would insulate the publisher from civil liability.
Keeping in mind that “fair use” is an equitable doctrine, I believe that the Nation article did not constitute a fair use of “A Time To Heal.” An article that merely announces the existence of a not-yet-published book and says to the readership, “This is a short abstract of what is in the book,” cannot qualify as a fair use. A similar claim of “news reporting as fair use” was rejected in Wainwright:2
Unlike traditional news coverage ... the Transcript did not provide independent analysis or research; it did not solicit comments on the same topics from other financial analysts; and it did not include any criticism, praise, or other reactions by industry officials or investors.... This was not legitimate coverage of a news event....
558 F.2d at 96 (emphasis added).
“Legitimate coverage of a news event,” id., will thus contain original material. The Nation might have corroborated or contrasted Ford’s description of the events with other accounts; it might have focused on other statements by Ford to put the memoirs in context; it might even have included a sketch of why the book was important and what effect the events in the book, which occurred almost a decade ago, had on the nation’s history. It could also have compared the Ford memoirs to the known record, which one of defendant’s experts said “is the big part of the job of a working journalist . . . . ” App. at 369 (testimony of F. Friendly). It did none of these. I do not mean to suggest that any of these are the sine qua non of a news story, but The Nation chose to rely exclusively on the copyrighted Ford memoirs for its story; it added nothing at all original. Rosemont *216counseled that such “extensive verbatim copying or paraphrasing” could not satisfy the fair use standard. 366 F.2d at 310.
The passage describing Ford’s impression of Nixon ill in bed is just one illustration of the article’s lack of originality and the unreasonableness of its use of the memoirs. The majority believes that this passage is an insubstantial use of the memoirs that gives the rest of the article credibility. I believe that it is blatant infringement, a direct appropriation of some of the most vivid parts of the book.
Based on The Nation’s use of no source other than “A Time To Heal” to write its article and on its use of the exact language in the book in many places, I can only conclude that The Nation has used far more of the memoirs than was necessary to write a “news” article. I believe that this conclusion is mandated irrespective of whether the material in the memoirs “concerns matter of great public import.” Cf. Iowa State University Research Foundation, Inc. v. American Broadcasting Companies, Inc., 621 F.2d 57, 61 (2d Cir.1980) (“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.”). We recently rejected the fair use defense when we accepted the trial court’s finding that the amount of the original work used was “so substantial as to be unfairly excessive.” MCA, Inc. v. Wilson, 677 F.2d 180, 185 (2d Cir.1981). Cf. Berlin v. E.C. Publications, Inc., 329 F.2d at 544 (parody does not constitute fair use if borrowed from original “to a far greater degree than that required if the parody is to ‘recall or conjure up’ that original”). The majority should follow MCA and reject the fair use defense in this case.
Furthermore, the fair use defense is negated by the effect of the Nation article on the market for the memoirs and for the serialization that The Nation knew had been licensed to Time magazine. Unlike the majority, I believe that this case involves the “chiseling for personal profit” that we found in Wainwright. 558 F.2d at 97. The Nation is a for-profit magazine trying to sell copies and bolster its own prestige. The publisher hoped that the article would sell newsstand copies and generate renewal subscriptions. Although The Nation’s newsstand profit was small, it was still profit. The degree of success is irrelevant. The abstract of the Wainwright reports by itself probably did not make a great profit for the Wall Street Transcript either. Cf. Iowa State University Research Foundation, Inc., 621 F.2d at 61 (that use is for “commercial exploitation” is relevant to, though not determinative of, fair use question) (citing Meeropol v. Nizer, 560 F.2d 1061 (2d Cir.1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978)).
Fair use will generally not be found if there has been a substantial incursion into the market for the primary work. See, e.g., Meredith Corp. v. Harper & Row, Publishers, Inc., 378 F.Supp. 686, 689 (S.D.N.Y.), aff'd, 500 F.2d 1221 (2d Cir.1974). It is evident that The Nation knowingly invaded the market for the Time serialization. Some who read the Nation article probably refrained from buying the memoirs or the properly licensed Time serialization. Time cancelled the second payment to Harper & Row because of the Nation article. Irrespective of its stated purpose, The Nation knew that it was fulfilling the demand for the Time excerpts. The Nation thus printed rewritten portions of the copyrighted Ford memoirs without paying for the privilege. Cf. DC Comics Inc. v. Reel Fantasy, Inc., 696 F.2d 24, 28 (2d Cir.1982) (denying fair use defense even though district court found no harm resulted from use defendant did not pay for on ground that licensing for a fee is a benefit of owning a copyright). Fair use should not be found here.
The majority is correct in suggesting that the fair use doctrine is used to reconcile competing claims of freedom of the press and ownership of intellectual labor. But the result reached by Judge Owen does not “threaten press freedom or obstruct the citizens’ access to vital facts and historical observations about the nation’s life.” The publication of the book itself and the other *217authorized uses of the copyrighted material would satisfy that need. An affirmance would only chill chiseling for personal profit. I would affirm.
. The term “copyrighted,” as used in this dissent, assumes that the copyright is valid.
. In Wainwright, we held that defendant’s abstracts of plaintiff’s financial reports did not constitute a fair use partly because the abstracts were not “legitimate” news reports and partly because they had the “obvious intent . . . of fulfilling the demand for the original work ... [and constituted] chiseling for personal profit.” 558 F.2d at 96-97.