Tomorrow’s newspaper in California is a very different beast! With the increasing availability of instant news and information 24/7, the ‘news’ part of newspapers is rapidly morphing. If I want to know who did what when or what today’s big issue is, whether that be globally, nationally or locally, I have a seemingly unlimited choice of instant news services from which to choose. Even my old mobile phone grants me immediate internet access, meaning keeping up with the Jones’s has never been easier.
So why do we still have newspapers in California ? Everyone knows that circulation is plummeting, but a few of us die-hards believe there will always be print. Why? Because it is comfortable. The Y-Gens are still buying their magazines and books because they also enjoy that relaxing slump on the couch with a drink, snacks and an engaging read. The operative word here of course is engaging!
This article addresses the law relating to copyright in news headlines and explores the case law relating to whether media publishers can protect their headlines as original literary works.
Media companies have tried to claim copyright protection over 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 Associated Press 248 U.S. 215 the US Supreme Court has held that there can be no copyright in facts or 'news of the day'.
However 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 right to protect other entities from publishing certain 'facts' or data, including news and other time-sensitive information during a certain window period to enable the organisation which has invested in gathering the data can recoup their investment. There are a number of criteria which must be satisfied to prevail in an action of hot news misappropriation
As stated above, Commonwealth Courts have rejected a tort of 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 afford literary copyright to titles, characters and news headlines. However 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 obtain copyright protection in their headlines as discrete original literary works under copyright legislation.
For copyright protection to exist a literary work must exist and not every piece of writing or printing will constitute a literary work within the meaning of the law.
Typically, 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 different reasons for denying copyright protection to such works. One reason offered by the Courts is that the 'works' are too trivial or not substantial enough to qualify for copyright protection. The case of Exxon Corporation v Exxon Insurance Consultants Ltd (1981) 3 All ER 241 is a leading English precedent where copyright was refused for the word Exxon as an original literary work.
Exxon argued it enjoyed copyright in the word Exxon having invested time and energy in employing linguists to invent the word, contending that the actual size of the literary work doesn't preclude a work from acquiring copyright protection. The court found that the work was too short or slight to amount to a copyright work.
The Court also stated that although the word was invented and original it had no particular meaning, comparing it with the word 'Jabberwocky' used for Lewis Carroll's famous poem. US case law has only recognised limited intellectual property rights in invented names or fictional characters in exceptional cases. There is no modern English or Australian case which has recognised that titles, phrases, song and book titles should 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 should qualify as original literary works. To be a literary work, a work has to convey pleasure or afford enjoyment or instruction. A literary work 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 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 whether copyright can subsist in newspaper headlines was discussed briefly by a Judge in a Scottish case called Shetland Times Ltd v Wills  FSH 604. The Judge didn't arrive at a final conclusion as to whether a newspaper headline can be a literary work, but expressed reservations about granting copyright to headlines, especially where they only provide a brief indication of the subject matter of the items they refer to in an article.
Newspaper headlines are similar in nature to titles of a book or other works 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  HCA 14, the High Court held that no copyright can subsist in a programme title alone. The Courts have based their reasons for refusing copyright protection to such works both 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 may however 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 may involve creative flair and be clever and engaging but 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 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 producing abstracts of the articles in their service Reed had infringed the copyright in a number of works, being the headlines as a separate literary work 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 each of the Australian Financial Review. The Court held that the headline was too trivial to be copyrightable and did not amount to a substantial part of the combination work so as to amount to infringement and the combination work didn't amount 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 competition 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.
Influence of Newspapers
It's hard to imagine a time before television news and radio news, not to mention news on the Internet, but during the Civil War, citizens had to rely on two major sources of news - word of mouth and newspapers.
Although word of mouth was the most expedient source of news about the war, newspapers provided citizens and soldiers alike with the most detailed accounts of war that that had ever been published in America or in any other country for that matter. New printing technologies allowed newspapers and magazines alike to publish another new technology - photographs. The advent of the telegraph made news from the front lines of the war available to the press room in minutes rather than days or weeks. Newspapers provided a tangible account of a war that developed by the day.
By the time the Civil War began in 1860, newspapers had expanded from the large cities in the northeast to almost all major cities throughout the United States, and even into some smaller towns, where an enterprising publisher could set up a press.
However, at the outset of the war, most newspapers were still yet unequipped to cover the war. Not only was the Civil War one of the most geographically large wars fought to the time, but the sheer numbers of those involved made the task mind-boggling. Although most of the larger papers, such as The New York Herald, The New York Times and Harper's Weekly had Washington correspondents, few had ever employed correspondents for the wide expanse of country the war encompassed. Thus a new position in the American newspaper office was born - the war correspondent.
War correspondents were sent out to the front lines, along with special artists, who until photographs became widely used toward the end of the war, sketched the action. These brave writers and artists experienced the same harsh conditions of life in a military camp as the soldiers did.
The ability of newspapers to get information from the front lines was often troubling for officers and others in positions of authority during the war. At various times, newspapers were censored for fear that the news they reported would be used by the enemy to advance their cause. This was more a problem in the North than in the South for obvious reasons - the South had had fewer major newspapers before the war, and blockades had resulted in such a shortage of paper, ink, and other supplies necessary that many papers shut down, never to reopen. But in the North, the threat of the press was taken in hand; Lincoln himself feared the repercussions of newspapers that were either opposed to the war or sympathetic to the Confederate cause, and suppressed many of these papers.
But Lincoln's courting of editors that supported his cause sometimes came back to haunt him, as is the case of his supporter Horace Greeley, of the New York Tribune, whom, in an effort to stir up support for the Union, undoubtedly contributed to the battles at Bull Run, which were both notorious losses for the Federal Army.
By far the most popular newspaper during the Civil War era was Harper's Weekly. Harper's was one of the more even-handed newspapers, due mostly to its popularity in the South. Although the paper supported Lincoln and the Union, it still reported with disinterest, and remained a mainstay of the Southern household during the war.
Aside from its impartiality, Harper's circulation of more than 200,000 during the Civil War era is attributable to the fact that the paper employed some of the most distinguished writers and artists of the time. Political cartoonist Thomas Nast was a mainstay of Harper's, as was artist Winslow Homer. Other notable artists who contributed to Harper's during the Civil War era include Theodore R. Davis, Henry Mosler, and the brothers Alfred Waud and William Waud.
Newspapers were the most reliable source of news during Civil War America. While newspapers served the citizens of the time well, they are also an invaluable resource for historians who study the war, providing insight not only into the actions of the war, but into the popular opinion of the war, as well.
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