Tomorrow’s newspaper in New York 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 New York ? 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.
The invention of printing is an epoch making achievement in the history of human civilization. The modern age owes three fourths of its progress to printing. It has brought many blessings in its train and one of these is the newspaper which has deeply and widely influenced modern life in many ways.
A newspaper at first was nothing more than a paper which gave news. In its infancy, it had no other aim. But as it developed, it began to be used for various other purposes and served several ends. Today, it has become a tremendous force for good and evil in the world. It not only continues, as before, to give news but also comments on them, criticizes the people and the government, deals with social, political, industrial and religious questions, reviews books and periodicals, ventilates grievances and does many other things, In fact there is hardly any public activity of man which does not come within the purview of the modern newspaper. The press, of course, has now become an organ of public opinion.
But unfortunately, sometimes the press is stifled. It is prevented from carrying out its legitimate work either by the unfitness of those who manage it or by the unnecessary interference of the powers that be. It is sometimes seen that passion and not reason guides its action. A wrong cause is championed, truth is suppressed and morbid tastes are pandered by it. Dangerous as these evils are, a greater danger comes from the attempt of some irresponsible government to gag or subsidies newspapers. Often, without sufficient cause, newspapers are gagged simply because they had the guts of criticizing plainly the unjust action of government.
But when it runs or is allowed to run in a normal and rational course, a newspaper is a great public educator. More than what can be done in schools and colleges is done by it. It supplies necessary information on the burning topics of the day, tackles the principal social and political problem of a country, criticizes books and brings to light the epoch making discoveries and inventions. It benefits every class of people. But it is not only a public educator and fearless critic of a government, it is also a great social reformer. It is in the columns of the newspapers that social abuse, are ruthlessly exposed and criticized and attention of the public is drawn to the inherent evils of some customs and practices.
The press is also an effective check on the vagaries of men in power. So it is a great mentor and stands against the misuse of power and the miscarriage of justice. It brings all the questions of the day before the bar of public opinion to be approved or condemned by it, in this way it serves the nation. The press is also a very great force in the field of politics. It teaches citizens their rights and responsibilities and make them fit for citizenship. It educates public opinion and teaches people how to vote, what taxes to pay and for what purposes, it explains the significance' of the municipal laws and bylaws comments on the proceeding of the legislative council and other public' bodies and helps men to develop their civic sense.
The press is a public organ, the voice of the people and therefore the freedom of the press means the freedom of the people. In a country where there is no free press the people may be independent, but they are not free in the true sense of the word. The press in self defense, if not for any higher motive has ever the champion of political freedom. Whenever a newspaper lights for the freedom of the press, it indirectly fights for the freedom of the people. The test of a country's freedom is determined by the amount of freedom its press enjoys. To stifle the press is to stifle the nation. Milton said "as good almost kill a man as kill a good book", and the remark is also applicable to the newspapers.
Newspapers also wield a tremendous influence to break down barriers between nations and help in forming themselves into a great brotherhood of nations. It knits up the different parts of a vast continent and teaches them to feel for one another. But it not only fosters international feelings, it teaches us to embrace the whole world as out kith and kin. A sense of fraternity is fostered by the spread of knowledge through the columns of the newspaper.
As a cheap and public educator, holding up the torch in the midst of darkness, as a trenchant and impartial critic of public administration of law and justice, as a social reformer patiently reforming the abuses of a society, as the champion of freedom in a country, as the destroyer of the barriers which separate man from man, nations from nations, and lastly as a pointer to the prospect of universal liberty, equality and fraternity, the newspaper in modern times has come to exercise a tremendous influence on the public and private life of man. There is no end to its potentiality for good if it can steer clear of greed, partiality, meanness and arrogance.
That is why, it is appropriately called the 'Forth Estate'.
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