Can You Copyright News Headlines?
from the seems-like-fair-use... dept
We usually try to come up with better, more interesting or more to the point headlines for stories we post to Techdirt than what’s found in the original article. One interesting side effect of this, is I can often tell when another site has taken the story from here, as they often take our headline directly. Of course, this doesn’t bother me at all (it’s actually kind of cool). However, a Japanese newspaper apparently feels otherwise. They sued a web portal for copying their news headlines. A judge, however, has ruled against the newspaper, claiming that the headlines only stated facts, and could not be considered “creative expressions”. Of course, as someone who puts some thought into the headlines here, I do take a bit of offense at the notion of headlines not being creative expressions. I do, however, think that using the headlines should almost definitely be a fair use situation – though, copyright laws in Japan may be quite different than they are here. Still, it does raise an interesting question in general. If the “copying” site takes the headlines for their own (or other) articles is that still okay? I can’t see how anyone would complain about headlines that are just links back to an original story. But, if a site consistently steals good headlines, but puts it with their own story (with no link or credit), does it still fall within fair use? What if two people come up with the identical headline completely separately?
Comments on “Can You Copyright News Headlines?”
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I would say that a headline *does* have creative expression. I would also say that headlines are not a large enough expression to be worthy of copyright protection.
I would say headlines fall somewhere between trademark (conveying an essential and immediate impression of identification) and copyright (a substantive expression of creativity).
Though I don’t think this is codified in any legal concept of copyright, this is my basic test I use to decide if something is copyrightable. If the work is so small that you couldn’t quote and cite a useful excerpt, then it isn’t worth a copyright. That is, if someone wouldn’t grab a portion of the work, excerpt it, and say “by the way, this was from something done by Joe and used according to Fair Use doctrine,” then it’s too atomic and immediate. If someone would grab and use a portion, or spontaneously create a matching portion, and no rational uninvolved third party would make the connection, then it doesn’t make the case for copyright. In my book.
If you saw almost any half of McDonald’s logo, almost anyone would recognize the source (thus it meets both Copyright and Trademark bars). If you saw one mere paragraph from Tale of Two Cities, a scholar would recognize the source (it meets the Copyright bar).
Can you usefully excerpt “Location Based Services Leading To Smart Places” or “Time Almost Up For The Video Game Goods Seller”? If so, could someone come up with the same excerpt on their own without seeing http://www.techdirt.com today?
Re: Headlines ??
The only thing on point that I know of is an old (circa WWI) US Supreme Court case, International News Service v AP, where the question was about property rights in the news.
The court came down and basically said news stories were ‘quasi-property’ and allowed some protections from outright copying of them (basically allowing the original publisher some limited amount of time to sell their news stories before they could be copied). The opinion was about as clear as mud, but AFAIK it is still good law, and will probably come up in this debate. It’s an interesting read, regardless.
My short thoughts.
It might not be the most articulated response to this old article, but if a news source constantly takes somebody else’s headlines, they’ve got some major creative issues. I doubt someone who would constantly just rip headlines would really bother writing their own articles.