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This article addresses the law related to copyright in news headlines and explores the case law related to whether media publishers can protect their headlines as original literary works.
Media companies have tried to claim copyright protection over the headlines of newspapers reproduced on the Internet. News publishers have asserted that news headlines qualify for copyright protection as original literary works under copyright law. Already in 1918 in the case of International News Service v. Associated Press 248 USA 215 the Supreme Court of the United States has held that there can be no copyright in fact or ‘daily News‘.
However, unlike Commonwealth countries such as Australia, where a misappropriation error is not recognized, the United States recognizes a hot news misappropriation doctrine. This tort has allowed media publishers and other organizations to obtain the right to protect other entities from the publication of certain “facts” or data, including news and other time-sensitive information during a certain window period to allow the organization that you have invested in collecting the data can recoup your investment. There are a number of criteria that must be met to prevail in a hot news misappropriation action.
As noted above, Commonwealth courts have wrongly rejected unfair competition as framed in the United States and have decided such cases solely on the basis of copyright law. Courts have been reluctant to grant literary copyrights to titles, characters, and news headlines. However, newspaper publishers have recently taken legal action in Australia for copyright infringement in their headlines and parts of their articles on the grounds that reproducing or summarizing headlines amounts to theft of their content. Newspaper publishers have tried to obtain copyright protection on their headlines as discrete original literary works under copyright law.
For copyright protection to exist, a literary work must exist, and not all written or printed pieces will constitute a literary work within the meaning of the law.
Single words, short phrases, advertising slogans, characters, and news headlines have generally been denied copyright protection, even when they have been invented or newly coined by an author. Courts have given different reasons for denying copyright protection to such works. One of the reasons offered by the courts is that the ‘works’ are too trivial or not substantial enough to qualify for copyright protection. In case of Exxon Corporation v. Exxon Insurance Consultants Ltd (1981) 3 All ER 241 is an important English precedent in which the copyright of the word Exxon as an original literary work was denied.
Exxon argued that it enjoyed copyright in the word exxons having spent time and energy employing linguists to invent the word, stating that the actual size of the literary work does not preclude a work from acquiring copyright protection. The court determined that the work was too short or light to constitute a copyrighted work.
The Court also stated that although the word was invented and original, it had no particular meaning, comparing it to the word ‘Jabberwocky‘ used for the famous poem by Lewis Carroll. US jurisprudence has only granted limited intellectual property rights to invented names or fictitious characters in exceptional cases. There is no modern English or Australian case that has recognized that titles, phrases, song and book titles should receive copyright protection.
Publishers who assert copyright in headlines argue that compiling and capturing headlines involves a high degree of novelty and creativity, and that headlines must qualify as original literary works. To be a literary work, a work has to convey pleasure or provide enjoyment or instruction. A literary work must also be original, and to satisfy the originality test it must be original not only in the sense of originating from an identifiable author rather than copied, but also original in the particular form of expression in which an author conveys ideas. or information. This is because copyright is not meant to protect facts or ideas.
The question of whether copyright can subsist in newspaper headlines was briefly discussed by a judge in a Scottish case called Shetland Times Ltd v Wills [1997] FSH 604. The judge did not reach a final conclusion on whether a newspaper headline can be a literary work, but expressed reservations about granting copyright to headlines, especially when they only provide a brief indication of the subject matter of the items to which they refer. referred to in an article.
Newspaper headlines are similar in nature to the titles of a book or other works and titles, slogans and short phrases that have been denied copyright protection. In the case of IceTV Pty Ltd v. Nine Network Australia Pty Ltd [2009] AHC 14, the High Court held that no copyright can subsist solely in the title of a program. Courts have based their reasons for denying copyright protection to such works on the fact that they are too short (see Francis Day & Hunter Ltd v Twentieth Century Fox Corp Ltd (194) AC 112) or, alternatively, that the titles of newspapers, songs, magazines, books, single words and advertising slogans are not sufficiently original to attract copyright protection.
Title protection ‘Opportunity Knocks’ for a game show was denied, as was the title ‘The Man Who Broke the Bank in Monte Carlo’ for a song and ‘Splendid Misery’ for a novel. Courts have also denied copyright protection for made-up names like Kojak and newspaper titles like ‘The Mirror’. However, such titles and names may be protected by other forms of intellectual property, such as trademark law or the tort of impersonation.
While courts have recognized that newspaper headlines may imply creative style and be clever and engaging, they represent little more than the fact or idea conveyed.
Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd, the Federal Court of Australia has ruled that newspaper owners cannot be protected by copyright. Reed and collected and reproduced the news headlines and articles appearing in the Australian Financial Review on his subscription service Abix. Fairfax alleged that, by producing abstracts of the articles at its service, Reed had infringed copyrights in several works, the headlines being a separate literary work and the headline and article together, as a “combined work”, all articles , headlines and signatures as a ‘compilation’ and also copyright of the edition published in each of the Australian Financial Review. The Court held that the owner was too trivial to be copyrightable and did not amount to a substantial part of the combined work thus amounting to infringement and the combined work did not amount to a joint work of authorship.
The law in the United States is somewhat shaky regarding the rights of news aggregators to engage in such activity due to the existence of the crime of unfair competition which is recognized in some US states.
The Court held that even if the use had been infringing, it would have been excused by the fair dealing defense.