This write-up addresses the law relating to copyright in news headlines and explores the case law relating to whether or not media publishers can protect their headlines as original literary works.
Media suppliers have tried to claim copyright protection over newspaper headlines reproduced on the net. News publishers have claimed that news headlines qualify for copyright protection as original literary functions below copyright legislation. As early as 1918 in the case of International News Service v Connected Press 248 U.S. 215 the US Supreme Court has held that there can be no copyright in details or 'news of the day'.
Nonetheless as opposed to in Commonwealth countries like Australia where there is no recognition of a tort of misappropriation the United States recognises a doctrine of misappropriation of hot news. This tort has enabled media publishers and other organisations to obtain the perfect to guard other entities from publishing particular 'facts' or information, including news and other time-sensitive details through a particular window period to allow the organisation which has invested in gathering the information can recoup their investment. There are a quantity of criteria which have to be satisfied to prevail in an action of hot news misappropriation
As stated above, Commonwealth Courts have rejected a tort of unfair competitors as framed in the United States and have decided such instances solely on the basis of copyright law. Courts have been reluctant to afford literary copyright to titles, characters and news headlines. Nevertheless newspaper publishers have only not too long ago brought legal action in Australia for copyright infringement in their headlines and portions of their articles on the basis that the reproduction or abstracting of headlines is equivalent to theft of their content material. Newspaper publishers have tried to obtain copyright protection in their headlines as discrete original literary works beneath copyright legislation.
For copyright protection to exist a literary work should exist and not every single piece of writing or printing will constitute a literary operate inside the meaning of the law.
Typically, single words, brief phrases, marketing slogans, characters and news headlines have been refused copyright protection even where they have been invented or newly coined by an author. The courts have given various factors for denying copyright protection to such functions. A single reason offered by the Courts is that the 'works' are too trivial or not substantial sufficient to qualify for copyright protection. The case of Exxon Corporation v Exxon Insurance coverage Consultants Ltd (1981) three All ER 241 is a leading English precedent exactly where copyright was refused for the word Exxon as an original literary perform.
Exxon argued it enjoyed copyright in the word Exxon having invested time and power in employing linguists to invent the word, contending that the actual size of the literary function does not preclude a operate from acquiring copyright protection. The court found that the perform was too brief or slight to quantity to a copyright perform.
The Court also stated that while the word was invented and original it had no specific meaning, comparing it with the word 'Jabberwocky' applied for Lewis Carroll's popular poem. US case law has only recognised limited intellectual property rights in invented names or fictional characters in exceptional circumstances. There is no contemporary English or Australian case which has recognised that titles, phrases, song and book titles should certainly be granted copyright protection.
Publishers asserting copyright in headlines contend that compiling and arresting headlines requires a high degree of novelty and creativity, and that headlines ought to qualify as original literary functions. To be a literary work, a function has to convey pleasure or afford enjoyment or instruction. A literary operate should also be original, and to satisfy the test of originality it have to be original not just in the sense of originating from an identifiable author rather than copied, but also original in the specific form of expression in which an author conveys ideas or data. This is considering that copyright is not meant to protect details or tips.
The question no matter if copyright can subsist in newspaper headlines was discussed briefly by a Judge in a Scottish case known as Shetland Instances Ltd v Wills [1997] FSH 604. The Judge did not arrive at a final conclusion as to if a newspaper headline can be a literary function, but expressed reservations about granting copyright to headlines, in particular exactly where they only present a brief indication of the topic matter of the items they refer to in an article.
Newspaper headlines are comparable in nature to titles of a book or other functions and titles, slogans and short phrases which have been refused copyright protection. In the case of IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14, the High Court held that no copyright can subsist in a programme title alone. The Courts have based their factors for refusing copyright protection to such works both of the basis that they are too brief (see Francis Day & Hunter Ltd v Twentieth Century Fox Corp Ltd (194) AC 112) or alternatively that titles of newspapers, songs, magazines, books, single words and marketing slogans lack enough originality to attract copyright protection.
The title 'Opportunity Knocks' for a game show was refused protection, as was the title "The Man who Broke the Bank at Monte Carlo" for a song and "Splendid Misery" for a novel. Courts have also refused copyright protection for invented names such as Kojak and newspaper titles such as 'The Mirror'. Such titles and names could nonetheless be protected by other forms of intellectual house such as trademark law or the tort of passing off.
Whilst Courts have recognised that newspaper headlines may involve creative flair and be clever and engaging but represent tiny even more than the reality or thought conveyed.
Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd the Federal Court of Australia has ruled that newspaper headlines are not capable of copyright protection. Reed and collected and reproduced the news headlines and articles appearing in the Australian Financial Review on it's Abix subscription service. Fairfax alleged that by making abstracts of the articles in their service Reed had infringed the copyright in a quantity of works, being the headlines as a separate literary perform and in the headline and write-up together, as a 'combination work', all of the articles, headlines and bylines as a 'compilation' and also published edition copyright in every of the Australian Monetary Review. The Court held that the headline was too trivial to be copyrightable and did not amount to a substantial part of the mixture work so as to amount to infringement and the mixture perform did not quantity to a work of joint authorship.
The law in the United States is somewhat unsettled in relation to the rights of news aggreggators to engage in such activity due to the existence of the tort of unfair competitors which is recognised in some US States.
The Court held that even had the use amounted to infringement it would have been excused by the defence of fair dealing.
