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Can You Copyright News Headlines?

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 [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 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 [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 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.

Adele Pace - http://www.pacelegal.com.au - For more resources on internet law, e-commerce and intellectual property.

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Coast to Coast

States Compete for Innovation and Jobs

Perhaps you have noticed how state governments are courting large corporate entities to come into their states and set up shop. Retail businesses can usually find a deal to pay little or no sales tax for a decade or more to move in and bring jobs. Manufacturers can find their building fees waived and their building upgrades paid for. After all, a large manufacturer is also bringing jobs, lots of them. States know they need more people paying into the system - state income tax for instance and they know those employees will buy homes and pay property taxes, and buy cars and other items and pay sales tax.

State's therefore are betting on the future in doing this, yes, they win, still there is a downside to all this, as the competitors of these corporations may not have gotten the same deal in that state or elsewhere. For instance, look what companies do with the bidding wars; "What will you give our XYZ company if we build our products in your state and bring in jobs?" "Will you give us tax breaks for the next 50-years?" etc. Look at Boeing's recent moves, or Amazon, or GE, on and on. So, is it fair for those states to make those deals and investments or not?

These states are indeed doing this in competition, but in doing so they un-level the playing field for smaller companies to compete, That is if there are smaller competitors in their sectors anymore because usually the corporate lobbyists work to create regulatory barriers to entry with the legislators at the state and federal levels. Although to be fair, it would take an insurmountable amount of capital to come along and compete with Boeing, GE, Intel, or any other major US corporation.

So, yes, companies are bringing jobs and innovation to their states. China does it, why should our state governments as well? Okay, I get that, but in another way it could end up doing the opposite for innovation by preventing new start-ups who cannot get the same deals. If we slow innovation, we all lose, just look at the auto sector today, for instance; where is my flying cars?

Is this author against corporate gifts to entice companies to come and set up shops to provide jobs and innovation? No, not completely, however as an entrepreneur, I also see other issues - and these too must be discussed, as they are really serious considerations. If the government becomes a partnership with every business, there will be no way those governments can harness the efficiencies of free markets with a system we would more recognize as state run capitalism. Please consider all this and think on it.

Lance Winslow has launched a new provocative series of eBooks on Economic Concepts. Lance Winslow is a retired Founder of a Nationwide Franchise Chain, and now runs the Online Think Tank; http://www.worldthinktank.net

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States Rights: The State of Legal Marijuana

The United States of America is a union that consists of 50 vast and different states. The State of the Union speech is the President of the United States of America giving his observations and report on how the union of the 50 states is functioning. (and if you are really counting you must take into consideration Washington DC and some territories that America presides over such as Guam). The states that contain the union, in certain situations and areas, govern themselves; setting the tone and climate for administration of some or all of public resources, including labour, and wealth. America is currently in the midst of a libertarian movement that is increases in intensity as states seek to wrest power to enforce public policy in certain areas and situation in lieu of the federal government.

The past 3 years have seen several clashes between the different state governments and Washington DC. The State of Arizona is currently engaged in a very heated struggle with The Obama Administration about the enforcement of security at the Arizona - Mexico border. Texas has also expressed its own needs and interests in dictating policy of the security of their own Mexican border. Violence is on the rise on the borders of these states where the vast desert acts a portal for the smuggling of illegal drugs, illegal immigration and outright human trafficking.

The battleground of states rights vs federal government has not seen a brighter stage than the issue of same sex marriage. The debate is personal and intense and crosses many different areas of contention. The issue was brought to the forefront of the American consciousness by George W. Bush as he sought to turn the tide of the 2004 United States presidential election against the Democratic party nominee John Kerry. Bush stated that marriage should be defined as the union of a man and a woman and that same sex marriages should not be recognized in The United States. The ensuing years have seen some states legalize same sex marriage, many others vote their states same sex marriage down and countless debates and court cases going back and forth in this battlefield in the war for political power between the states and Washington DC.

The next potential area for conflict in this never ending union dance with federal government will be legal marijuana in America. The growing consensus is that it is just a matter of time before one of the states in the union, with the smart money betting on California, Colorado or Michigan, will end their prohibition of marijuana and legalize its recreational possession and use. Medical Marijuana is already out of the closet and never to return. City and state governments that have legalized medical marijuana are already profiting and allocating funds received in the taxes generated and this revenue is not going to be eliminated now that the states have had a taste of this new budget windfall.

California attempted to legalize recreational use in November 2010 with Proposition 19. Voted down by a 54-46% margin in a midterm election, the pieces were not completely in place for victory. The issue will come back with a vengeance in 2012 and early observations are that the new proposition will be written with a more inclusive attitude toward the state's legal marijuana culture and include the concerns of growers, defense lawyers and dispensaries. The 2012 election will be a presidential election and thus will include a bigger turnout of the younger voters of the population, the very core of the populace that most voting registration drives aim at and coincidentally which happen to be a huge block of the yes to recreational marijuana base.

The federal government seems to be in a quandary if one of these states actually does break away from the Just Say No federal stance on all recreational drugs except tobacco and alcohol. The push came to shove last October when it looked like Proposition 19 had a chance to pass in California, forcing Obama Administration Drug Czar Gil Kerlikowske to issue the following statement on recreational legal marijuana:

"Legalization is being sold as being a cure to ending violence in Mexico, as a cure to state budget problems, as a cure to health problems. The American public should be skeptical of anyone selling one solution as a cure for every single problem. Legalized, regulated drugs are not a panacea--pharmaceutical drugs in this country are tightly regulated and government controlled, yet we know they cause untold damage to those who abuse them.

To test the idea of legalizing and taxing marijuana, we only need to look at already legal drugs--alcohol and tobacco. We know that the taxes collected on these substances pale in comparison to the social and health care costs related to their widespread use."

Clearly the federal government is not on board with legal marijuana in California sponsoring the Super Bowl Half Time Show in 2020. How does a state's citizens respond to this statement when their population votes on an initiative that could help their economy to recover from the most serious economic crisis in their state's history? Does the federal government have a right to tell a private citizen that even though they have voted on a principle in majority that they still do not have the freedom to exercise this right as afforded to them through popular vote?

Thomas Jefferson, was quoted as saying "The government which governs least, governs best". The Jefferson authored Declaration of Independence, the very document that the federal government is founded on, declares that we all have "certain unalienable Rights, that among these are life, liberty and the pursuit of happiness." The federal government will seek to deny citizens rights they have afforded to themselves through their state's popular vote, clinging to aging and archaic rhetoric. The stance and posturing does not govern least and it certainly does not govern best; denying their citizens the life, liberty and the pursuit of happiness that is professes its very existence for.

Bob Carr is an activist in the movement to outright legalize marijuana in California. Visit http://www.legalmarijuanacalifornia.com for more news, views and information on the fight for legal marijuana in California and the rest of America.

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