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?