Tort masquerading as Property?

On one level, Harper & Row is a straightforward IP case. The Nation clearly infringed the copyright of Gerald Ford's memoirs. The magazine claimed fair use as a defense, but how could the misappropriation of Time's exclusive license to pre-publish excerpts be considered fair? The Nation did not simply publish the factual fruit of a journalistic investigation, but rather excerpts of a creative work (even if a heavily fact-based one). A copyright regime that would allow such behavior hardly seems fair or equitable.

That said, Harper & Row reminds me more of another famous journalistic misappropriation case we read in relation to trade secret law, International News Service v. Associated Press. In INS, the AP earned its "scoops" through hard work and investigation, and INS snatched the fruits away for their own profit. The Nation did something similar to Time, except that Time earned its "scoop" by purchase rather than labor. It is not clear to me from reading the case whether The Nation was complicit in the theft of Ford's manuscript, or merely the fortuitous beneficiary who knew something unseemly was afoot. Either way, by analogy to the law of trade secrets that punishes both theft and knowing receipt of stolen information, The Nation misappropriated Time's license to publish excerpts. If Time sued The Nation for the tort of misappropriation, that case would be very much like International News Service. Both cases would involve a sort of intellectual property right that is neither trade secret nor copyright, but protected by a liability rule nonetheless.

But Time wasn't the plaintiff in this case. Harper & Row, the publisher of the memoirs and holder of their copyright, sued instead. The publisher was able to wield the federal statutory sword of copyright rather than the (by comparison) limp noodle that is the tort of misappropriation. In the end, does it matter? Instead of confronting duties and breaches as the plaintiff's claim, the court still had to confront duties and breaches to determine if the defendant could invoke an equitable defense. Given that the case of copyright infringement was not contested, and the fair use defense was the battleground in the courts, couldn't we say that misappropriation really was the basis of the case? If Time hadn't purchased the license, and if The Nation had simply found the manuscript laying on a table in a public place, would the fair use defense still fail? Can we discount the Supreme Court's discussion of commercial vs. nonprofit uses as dicta?