This short article addresses the law associated with copyright in news headlines and explores the case law associated with 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 event of International News Service v Associated Press 248 U.S. 215 the US Supreme Court has held that there might 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 Breaking news . This tort has enabled media publishers and other organisations to achieve the best to guard 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 committed to gathering the data can recoup their investment. You will find a number of criteria which must be satisfied to prevail in an action of hot news misappropriation
As previously mentioned above, Commonwealth Courts have rejected a tort of unfair competition as framed in the United States and decided such cases solely on the foundation of copyright law. Courts have already 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 within their headlines and portions of their articles on the foundation that the reproduction or abstracting of headlines is equal to theft of their content. Newspaper publishers have tried to acquire copyright protection within their headlines as discrete original literary works under copyright legislation.
For copyright protection to exist a literary work must exist and not every little bit 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 already 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 provided 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 phrase Exxon as a genuine literary work.
Exxon argued it enjoyed copyright in the word Exxon having invested time and energy in employing linguists to invent the phrase, contending that the particular size of the literary work doesn't preclude a work from acquiring copyright protection. The court discovered that the task was too short or slight to add up to a copyright work.
The Court also stated that although the phrase was invented and original it had no particular meaning, comparing it with the phrase 'Jabberwocky' useful 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 really be granted copyright protection.
Publishers asserting copyright in headlines contend that compiling and arresting headlines involves a higher degree of novelty and creativity, and that headlines should qualify as original literary works. To become a literary work, a work must convey pleasure or afford enjoyment or instruction. A literary work should 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 as opposed to copied, but also original in this form of expression where an author conveys ideas or information. This is because copyright isn't meant to guard facts or ideas.
The question whether copyright can subsist in newspaper headlines was discussed briefly by way of a Judge in a Scottish case called Shetland Times Ltd v Wills [1997] 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 simply provide a brief indication of the subject matter of those items they refer to within 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 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 reasons for refusing copyright protection to such works both of the foundation 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.