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  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  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.