Can News Headlines Copyright?

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This article addresses the law related to copyright in news headlines and explores the jurisprudence related to whether media publishers can protect their headlines as original literary works.

Media companies have tried to claim copyright protection for newspaper headlines reproduced on the Internet. News publishers have claimed that news headlines qualify for copyright protection as original literary works under copyright law. As early as 1918 in the case of International News Service v. Associated Press 248 US 215 The Supreme Court of the United States has held that there can be no copyright in facts ordaily News‘.

However, unlike Commonwealth countries like Australia, where there is no recognition of a misappropriation grievance, the United States recognizes a hot news misappropriation doctrine. This grievance has allowed media publishers and other organizations to obtain the right to protect other entities from the publication of certain ‘facts’ or data, including news and other time-sensitive information during a certain window period to allow the organization to that you have invested in data collection can recoup your investment. There are a number of criteria that must be met to prevail in a current news misappropriation action.

As noted above, the Commonwealth courts have rejected an unfair competition tort as framed in the United States and have decided these cases solely on the basis of copyright law. Courts have been reluctant to grant literary copyrights to titles, characters and news headlines. However, newspaper publishers have only recently taken legal action in Australia for copyright infringement of their headlines and parts of their articles on the basis that the reproduction or summary of headlines is tantamount to the theft of their content. Newspaper publishers have sought to obtain copyright protection in their headlines as discrete original literary works under copyright law.

For copyright protection to exist, a literary work must exist and not all writing or printing will constitute a literary work within the meaning of the law.

Single words, short sentences, advertising slogans, characters and news headlines are generally not protected by copyright, even when they have been invented or newly coined by an author. Courts have given different reasons for denying copyright protection to such works. One of the reasons offered by the courts is that the ‘works’ are too trivial or not substantial enough to qualify for copyright protection. In case of Exxon Corporation v Exxon Insurance Consultants Ltd (1981) 3 All ER 241 is an important precedent in English in which the copyright of the word Exxon was denied as an original literary work.

Exxon argued that it enjoyed copyright in the word Exxon having invested time and energy in employing linguists to invent the word, arguing that the actual size of the literary work does not preclude a work from acquiring copyright protection. The court determined that the work was too short or light to constitute a copyrighted work.

The Court also affirmed that although the word was invented and original it did not have a particular meaning, comparing it with the word ‘Jabberwocky‘used for the famous Lewis Carroll poem. US jurisprudence has only recognized limited intellectual property rights over made-up names or fictional characters in exceptional cases. There is no modern English or Australian case that has recognized that titles, phrases, songs and book titles should enjoy copyright protection.

Publishers who assert copyright in headlines argue that compiling and capturing headlines involves a high degree of novelty and creativity, and that headlines should be considered original literary works. To be a literary work, a work must convey pleasure or provide pleasure or instruction. A literary work must also be original, and to satisfy the originality test it must be original not only in the sense of originating from an identifiable author rather than being copied, but also original in the particular form of expression in which a Author conveys ideas or ideas. information. This is because copyright is not intended to protect facts or ideas.

The question of whether copyright can subsist in newspaper headlines was briefly discussed by a judge in a Scottish case called Shetland Times Ltd vs. Wills [1997] FSH 604. The judge did not reach a final conclusion on whether the headline of a newspaper can be a literary work, but did express reservations about granting copyright to headlines, especially when they only provide a brief indication of the subject matter of the items to which they are referred to in an article.

Newspaper headlines are similar in nature to book titles or other works and titles, slogans, and short phrases that have been denied copyright protection. In the case of IceTV Pty Ltd vs Nine Network Australia Pty Ltd [2009] HCA 14, the Superior Court held that no copyright can subsist only in the title of a program. The Courts have based their reasons for denying copyright protection to such works on the basis that they are too short (see Francis Day & Hunter Ltd v Twentieth Century Fox Corp Ltd (194) AC 112) or, alternatively, which titles Newspapers, songs, magazines, books, single words and advertising slogans lack sufficient originality to attract copyright protection.

Protection for the title ‘Opportunity Knocks’ was denied for a game show, as was the title “The Man Who Broke the Bank in Monte Carlo” for a song and “Splendid Misery” for a novel. The courts have also rejected copyright protection for made-up names like Kojak and newspaper titles like “The Mirror.” However, such titles and names may be protected by other forms of intellectual property, such as trademark law or the tort of imitation.

While the courts have recognized that newspaper headlines can be creative and clever and engaging, but they represent little more than the conveyed fact or idea.

Fairfax Media Publications Pty Ltd v. Reed International Books Australia Pty Ltd the Federal Court of Australia has ruled that newspaper headlines cannot protect copyrights. Reed and collected and reproduced the news headlines and articles that appear in the Australian Financial Review on its Abix subscription service. Fairfax alleged that by producing summaries of articles on his service, Reed had infringed copyrights in several works, the headlines being as a separate literary work and in the headline and article together, as a ‘combined work’, all articles, headlines and signatures as a “compilation” and also the copyrights of the edition published in each of the Australian Financial Magazines. The Court held that the owner was too trivial to be protected by copyright and did not represent a substantial part of the combined work to constitute an infringement and the combined work did not amount to a joint authorship work.

The law in the United States is somewhat unstable regarding the rights of news aggregators to engage in such activity due to the existence of the unfair competition tort that is recognized in some states of the United States.

The Court held that even if the use had constituted an infringement, it would have been excused by the fair treatment defense.

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