This post addresses the law relating to copyright in news headlines and explores the case law relating to no matter whether media publishers can safeguard their headlines as original literary works.
Media providers have tried to claim copyright protection over newspaper headlines reproduced on the world wide web. 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 Associated Press 248 U.S. 215 the US Supreme Court has held that there can be no copyright in details or 'news of the day'.
Even so as opposed to in Commonwealth countries like Australia exactly 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 acquire the correct to defend other entities from publishing certain 'facts' or data, which includes news and other time-sensitive information through a specific window period to enable the organisation which has invested in gathering the data can recoup their investment. There are a number of criteria which should 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 situations solely on the basis of copyright law. Courts have been reluctant to afford literary copyright to titles, characters and news headlines. On the other hand newspaper publishers have only recently 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. Newspaper publishers have tried to acquire copyright protection in their headlines as discrete original literary functions under copyright legislation.
For copyright protection to exist a literary work need to exist and not every single piece of writing or printing will constitute a literary function within the meaning of the law.
Typically, single words, short phrases, advertising slogans, characters and news headlines have been refused copyright protection even exactly where they have been invented or newly coined by an author. The courts have given distinctive causes for denying copyright protection to such functions. 1 reason presented by the Courts is that the 'works' are too trivial or not substantial adequate 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 getting invested time and energy in employing linguists to invent the word, contending that the actual size of the literary perform doesn't preclude a perform from acquiring copyright protection. The court identified that the perform was too brief or slight to amount to a copyright work.
The Court also stated that even though 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 restricted intellectual property rights in invented names or fictional characters in exceptional situations. 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 involves a high degree of novelty and creativity, and that headlines will need to qualify as original literary functions. To be a literary perform, a perform has to convey pleasure or afford enjoyment or instruction. A literary function should also be original, and to satisfy the test of originality it ought to be original not just in the sense of originating from an identifiable author rather than copied, but also original in the certain form of expression in which an author conveys concepts or facts. This is for the reason that copyright is not meant to defend details or suggestions.
The question no matter if copyright can subsist in newspaper headlines was discussed briefly by a Judge in a Scottish case known as Shetland Occasions Ltd v Wills [1997] FSH 604. The Judge didn't arrive at a final conclusion as to no matter whether a newspaper headline can be a literary perform, but expressed reservations about granting copyright to headlines, specially where they only deliver a brief indication of the subject matter of the items they refer to in an post.
Newspaper headlines are comparable in nature to titles of a book or other works and titles, slogans and brief 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 causes for refusing copyright protection to such functions each of the basis that they are too short (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 advertising slogans lack sufficient 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 possibly nevertheless be protected by other types of intellectual property such as trademark law or the tort of passing off.
Whilst Courts have recognised that newspaper headlines can involve creative flair and be clever and engaging but represent tiny far more than the truth or idea 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 Assessment on it is Abix subscription service. Fairfax alleged that by creating abstracts of the articles in their service Reed had infringed the copyright in a quantity of functions, getting the headlines as a separate literary perform and in the headline and article 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 Economic Evaluation. The Court held that the headline was too trivial to be copyrightable and did not quantity to a substantial component of the mixture work so as to amount to infringement and the mixture work did not quantity to a operate 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.
