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.
Writing a News Feature Story
Tomorrow's newspaper 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? 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!
Newspaper magnates are scrambling madly like a flock of geese in hunting season, desperately seeking new ideas from pricy consultants to engage their disparate audiences as subscription and print-ad revenues nose dive. The really big end of town is buckling under its own ancient weight, stunned in the headlights of a much faster moving information superhighway. The choice is change or die.
But change for these guys is tough. They are often fourth or fifth generation family moguls who know little else beyond the print world. "Ok, we've built our website...now what?" The smart players are restructuring their offices in information-centric floor plans where a byte of news travels simultaneously to each media team where it is chopped, shaved, spiced and uploaded to the net, print production, radio, TV, mobile etc. The not-so-smart are sacking staff and closing shop, or even worse shaking their heads, holding their nose, closing their eyes and hoping the naughty internet thingy will just go away.
So the stage is set for a media revolution, where only the smart and nimble will triumph. Such a scenario has opened the door for the smaller players, who were previously excluded from the game owing to costly entrance fees and ruthless incumbents. Now however, powerful publishing software is extremely affordable, putting everything up for grabs. The little guys are redefining an archaic industry.
Over the past five years thousands of localised 'news' websites have sprouted around the world. Some with significant venture capital funding, some dabbling off-shoots of the big companies, others simply built by community minded individuals. The spin on these sites tends to be user-generated content, or 'citizen journalism', whereby locals tell their own stories, report on events that might otherwise be overlooked by mainstream media, or simply weigh in with an opinion or rebuff.
In 2004 'The Word' newspaper was launched in Canberra, Australia. At the time this was the first tabloid in the world to be written entirely by its readers, circulating 35000 gloss covered copies monthly to 900 sites across Australia's capital city. The beauty about this model was not only that content was free, but that it evoked immediate loyalty. Anyone who got an article published in print, or knew someone else who got published, inevitably showed friends.
But could we really call this a newspaper? Was it more like a magazine? A newszine? A yarnpaper? A plog (printed blog)? Whatever it was, it carried $30,000 of advertising in every issue and another $1000 p/m of online ads! It engaged its readers. As the adage proclaims, get your content and distribution right and the advertisers will follow.
So we come back to content, the 'news' in newspapers. With the eruption of online commerce we are witnessing a turning point for content. Earning money online is all about 'eyeballs' - getting traffic to your site. Unfortunately the very same freedoms we cherish about the internet also drown us in spam and crap content. Waving a flag above the dumping grounds of useless and tedious content is becoming quite an art, a trade to which professional and novice authors are gravitating in droves.
Content will soon be entirely free! Already the industry is filling with content conduits, like Ezine Articles, Squidoo, Wordpress, Twitter and plenty more. Authors upload their articles, as I will do with this article, to these newly forming content kings. These kings then push the content to relevant members who have flagged certain interests in membership profiles. These members then publish that content into their own websites or publications.
But where is the money in all this? Well the conduits charge for premium privileges for both authors and publishers and the authors charge for...hmmm...that's right, nothing! And that is why this is so beautiful - there really is something in it for the author - reputation. Prolific and intelligent authors can now get their message out there faster than ever and gain hundreds of thousands of readers overnight, which translates to hundreds of thousands of eyeballs back at the author's website wanting more. Another name for this phenomenon is 'content marketing', whereby the author creates positive, informed conversations around products or services.
Pulling together these clues, tomorrow's newspaper is looking more like a hybrid of blogs, magazines, newspapers, forums and books. It is a disposable, stylish freebie, with likely a gloss cover and smaller than a tabloid so that it can be folded into the back pocket. It survives entirely on advertising and addresses in one sweep a bunch of interest sets that are beyond news. The stories are the neighborly conversations over the back fence. Opinions are rife from front cover to the last page. Articles inform the evermore discerning readers of the pros and cons of a wide range of products and services, toward generating trust first, not the sale. If you want the latest news, open your iPhone. If you want a bunch of stories, pictures and meanderings, pick up your local musepaper!
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