This write-up addresses the law relating to copyright in news headlines and explores the case law relating to irrespective of whether media publishers can guard their headlines as original literary works.
Media suppliers have attempted to claim copyright protection more than newspaper headlines reproduced on the internet. News publishers have claimed that news headlines qualify for copyright protection as original literary works under copyright legislation. As early as 1918 in the case of International News Service v Related Press 248 U.S. 215 the US Supreme Court has held that there can be no copyright in details or 'news of the day'.
Nevertheless unlike 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 gain the correct to guard other entities from publishing specific 'facts' or data, including news and other time-sensitive information in the course of a specific window period to enable the organisation which has invested in gathering the data can recoup their investment. There are a quantity of criteria which need to be happy 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. 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. Newspaper publishers have tried to get copyright protection in their headlines as discrete original literary functions under copyright legislation.
For copyright protection to exist a literary function must exist and not every piece of writing or printing will constitute a literary work within the meaning of the law.
Ordinarily, single words, short phrases, advertising 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 reasons for denying copyright protection to such functions. One purpose supplied 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 Consultants Ltd (1981) three All ER 241 is a top English precedent exactly where copyright was refused for the word Exxon as an original literary operate.
Exxon argued it enjoyed copyright in the word Exxon getting invested time and power in employing linguists to invent the word, contending that the actual size of the literary perform does not preclude a perform from acquiring copyright protection. The court found that the perform was too brief or slight to quantity to a copyright function.
The Court also stated that while the word was invented and original it had no specific meaning, comparing it with the word 'Jabberwocky' used for Lewis Carroll's popular poem. US case law has only recognised restricted intellectual property rights in invented names or fictional characters in exceptional instances. There is no modern English or Australian case which has recognised that titles, phrases, song and book titles will need to 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 works. To be a literary function, a function has to convey pleasure or afford enjoyment or instruction. A literary function must also be original, and to satisfy the test of originality it must 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 suggestions or details. This is simply because copyright is not meant to safeguard details or suggestions.
The question no matter whether 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 whether or not a newspaper headline can be a literary work, but expressed reservations about granting copyright to headlines, specifically where they only give a brief indication of the topic matter of the items they refer to in an post.
Newspaper headlines are similar in nature to titles of a book or other functions 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 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 adequate 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 may nevertheless be protected by other forms of intellectual property such as trademark law or the tort of passing off.
Whilst Courts have recognised that newspaper headlines could involve creative flair and be clever and engaging but represent little a great deal more than the reality 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 Evaluation on it is Abix subscription service. Fairfax alleged that by producing abstracts of the articles in their service Reed had infringed the copyright in a number of functions, becoming the headlines as a separate literary operate 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 single of the Australian Monetary Assessment. 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 quantity to infringement and the combination operate did not amount to a function 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.