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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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Copyfight

« Lessig's Free Culture is also Free Content | Main | UN Task Force Seeks Additional Control Over Internet »

March 25, 2004

Copyrighting Newspaper Headlines?

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Posted by Ernest Miller

Japan's English-language Mainichi Daily News reports that a lawsuit alleging copyright infringement for a website that copied newspaper headlines was dismissed (Court denies copyright for Web news headlines). The district court judge ruled that headlines were not creative expression:

"These headlines were created within 25 characters, and either stated objective facts, or used only very short qualifying words, and cannot be described as creative expression," the ruling said.

I know nothing about Japanese law, so I can't comment on that, but it is interesting to consider how such a case might be decided in the US. I'm not so sure a US decision would come out the same way.

For example, the bar for finding creativity is quite low. It depends on the style of headline somewhat, but likely headlines rise above that bar. Heck, the American Copy Editors Society awards prizes each year for the best headlines: ACES 2003 Headline Contest: Winning Entries. So, I don't think the "it isn't creative" line would work.

One could argue that the copying was "de minimis." This is a copyright doctrine which is based on the adage, "the law does not concern itself with trifles," meaning that very small or insignificant amounts of copying don't really count. The law here isn't very clear, but I don't think this defense would fly in this case. It might fly for a headline here or a headline there, but routinely copying every headline is probably not de minimis.

This leaves that old standby, the fair use defense. Without going into an exhaustive discussion, the four factors:

1) What is the character of the use?

Not a good one for the defense. This is pretty obviously a commercial use by the internet service firm. Might be different for a blogger, perhaps.

2) What is the nature of the work?

Probably goes for the defense. Generally, copyright infringement for phrases is pretty thin. The shorter the phrase, the more difficult it will be to distinguish the idea from the expression, especially as the headlines will be tied to some factual circumstances. Unless the headlines are routinely highly imaginative, they most likely tend much more towards the factual.

3) How much of the work is used?

The amount taken and the length of the headlines will be a major, though likely not a decisive factor. It will probably go in favor of the defense.

4) What will be the effect of the use upon the potential market for or value of the copyrighted work?

This will be the critical factor, as usual, I think. I could see it going either way. Even though the headlines would be more likely to spark interest in the full articles and send traffic to the newspaper, there is probably a market for a headline syndication service.

Verdict: Who knows?

via Techdirt

Comments (7) + TrackBacks (0) | Category: IP Abuse


COMMENTS

1. Joseph Pietro Riolo on March 25, 2004 9:12 AM writes...


You forgot the Merger Doctrine. Also,
the freedoms of press and speech. Also,
see http://www.copyright.gov/circs/circ34.pdf.


Joseph Pietro Riolo
<riolo@voicenet.com>

Public domain notice: I put all of my expressions
in this comment in the public domain.

Permalink to Comment

2. Karl-Friedrich Lenz on March 25, 2004 9:54 AM writes...

Article 10 Paragraph 2 of the Japanese Copyright law:

"(2) News of the day and miscellaneous facts having the character of mere items of information shall not fall within a term "works" mentioned in item (i) of the preceding paragraph."

Permalink to Comment

3. Karl-Friedrich Lenz on March 25, 2004 9:56 AM writes...

Sorry, forgot the link to the translation in the post above:

http://www.cric.or.jp/cric_e/clj/cl2_1.html#cl2_1+S1 (Copyright Research and Information Center)

Permalink to Comment

4. Fred on March 26, 2004 9:11 AM writes...

Hello? A headline is the title of the piece, and therefore cannot be subject to a claim of copyright:

http://www.copyright.gov/circs/circ34.pdf

Methinks you are thinking way too hard about this one.

Permalink to Comment

5. Ernest Miller on March 26, 2004 11:07 AM writes...

First, the copyright office's circulars, though considered a good guide to the law, are not the law.

Second, it is not clear to me that a headline is necessarily the equivalent of a title. That is why we call it a "headline" and not a "title." Seems to me the title of the publication is the name of the newspaper.

Third, the copying didn't involve a single phrase, but numerous phrases from the same edition of a newspaper. Individually, every sentence in a publication is a "short phrase" not worthy of copyright, but copy enough of those "short phrases" and pretty soon you've copied a clearly infringable amount.

Fourth, there are a few cases in which short phrases were found to be copyrightable. In Heim v. Universal Pictures Co., the issue arose as to whether the copyright of a musical phrase would be enough to justify a finding of infringement. Judge Frank determined that lack of originality, not brevity, is what prevents the separate copyrightability of a phrase. Idiosyncratic and fanciful phrases would be copyrightable. For example, one of my headlines, "Free Culture - Now With Even More Free" might meet the copyrightability criterion. Also, if the American Copy Editors Association is giving out prizes for the creativity and originality of headlines, that is pretty good evidence that something copyrightable is happening.

Fifth, I'm not saying this would definitely be infringement or that I support the idea that it should be considered infringement. However, I'm cynical enough about the courts to think it isn't entirely clear.

Permalink to Comment

6. Fred on March 26, 2004 12:22 PM writes...

Your cynicism is probably well-placed!

However, I don't think your analysis holds true:

-The "title" of piece: The headline is the title of the piece itself, not the paper--it's in the plain language. The title of the collection in which it appears is the newspaper's name (it's the difference between the title of a selection and the title of the anthology in which it appears). Distinct copyrights, in fact.

-aggregate copying: This is an interesting argument, since the aggregate amounts have to do with the overall copyright to a collection (i.e, the particular issue). Cumulative copying of pieces which, by themselves are clearly "fair use" might cross the permissive continuum into infringement. The question is: Are headlines themselves distinct copyright pieces worth tracking for cumulative purposes? For example, facts pulled from a single source are not cumulative since each one does not register a positive use of copyrighted material when using a fact. If headlines are not themselves copyrightable than their use (even in the aggregate) can't accumulate toward a violation. Very interesting argument, however. I've got to mull this one over more.

-musical phrase: It's my belief that some copyrighted works are themselves "compressed language" and small amounts of that work should be considered larger than their simple length would otherwise dictate when looking at the four factor analysis. (At least, that's what I advise my clients!) Poetry (and song lyrics, which are considered poetry no matter how bad). Musical expressions, etc. I don't know if the musical phrase case maps well to this argument based upon a prose work (the headline).

Permalink to Comment

7. Ernest Miller on March 26, 2004 12:57 PM writes...

Good points, but my cynicism remains.

Okay, granted, a headline is a title, but it is more than that. A title is a mere identifying name for a piece. A headline is also a summation, description and promotion of the piece, moreso than an ordinary title. I see an analogy here to Harper&Row, where a headline might be the heart of the piece. So, while the terms "title" and "headline" are very closely related, they are not identical. Read this description of the winner of the headline award:

Webster prevailed because, in the judges' eyes, all of his headlines, on a range of subjects, were extraordinary. The best headlines are fully alive with the essence of the news. Webster's were that way. He relied not on a single formula and not just on wordplay. His cleverness never obscured clarity. In each instance, his fresh language connected immediately and strongly with the reader.

That sounds suspiciously like a creative literary work worthy of copyright to me. Perhaps one using "compressed language."

Of course, any copyright in headlines is going to be exceedingly thin, but I don't think non-existent. That is why I think the case will really revolve around the character of the use (out-and-out commercial, perhaps even in direct competition with the originator) and the effect on the market (there is an existing market for licensing headline services). In many ways, this use looks more like "hot news" misappropriation than an indexing service or search engine. Now, "hot news" is not really copyright law, but I could see a judge sympathizing with that portrayal and finding against the use.

Permalink to Comment


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