Re: Copyright in headlines

From: <BBIPLaw[_at_]aol.com>
Date: Thu, 11 Jun 1998 19:13:26 EDT

On 98-06-11, David Swarbrick <david[_at_]swarb.demon.co.uk> writes:
>
> Eran Bareket <bareket[_at_]netvision.net.il> writes
> >
> > Shetland Times Ltd. v. Dr. J Wills et al [1997] F.S.R. 604 (Ct.
> > Sess. O.H.)(Ireland) is directly pertinent to your query. The
> > plaintiff owned and published a newspaper by the name "Shetland Times".
> > They also operated an online edition of the paper, accessible through
> > their site.
> [snip]
> > However, in light of the concession that a headline could be a
> > literary work and since the headlines at issue (or at least some of
> > them) involve eight or so words designedly put together for the
> > purpose of imparting information, it appeared to me arguable that
> > there was an infringement, at least in some instances.."
> >
> > This was an interlocutory decision and the Judge, much like yourself,
> > was unable to rely on precedents ("authority"). However, the result
> > and, albeit partly, the reasoning, seems correct.
>
> One has to be very careful about this as a precedent. For the purposes
> of argument, a party 'conceded it might' and for the purposes of an
> intrlocutory order a judge held 'it was arguable' - and no more.
>
> If it wasn't arguable, we wouldn't be discussing it. It doesn't mean
> anything more.

In response:

Under US copyright law, I suggest that there are many problems, of a statutory, judicial and conceptual/policy nature with the view that typical headlines are copyrightable subject matter.

First, there is the problem of de minimus originality.

Second, there is the long-standing case law precedent and Copyright Office regulation expressly stating that titles (including ones with much more originality/creativity than standard "headlines" as well as ones that contain "information" and /or are "orginal" in their form of expression, wording, phrasing, etc.) are never copyrightable.

Third, at least on first thought, I believe the most analogous recent controlling judicial authority is the US Supreme Court's Feist opinion, which, on first consideration, and without any further analyses, suggests that the headlines (esp if one sentence -- clause -- few phrases) are not copyrightable.

Agreement? Disagreement?

In addition, I would argue as a former Constitutional Law/First Amendment as well as Copyright Law Professor (currently a full time practitioner) that strong public domain/first amendment policies cut against affording copyright protection to typical headlines.

Barbara Brudno, Esq.
LAW OFFICES OF BARBARA BRUDNO
Los Angeles, CA 90069

Phone:    310/550-8034   --     Facsimilie:    310/550-7246
E-Mail:     BBIPLaw[_at_]aol.com

Internet: http://www.wld.com/lawyer/barbara.brudno Received on Thu Jun 11 1998 - 23:13:42 GMT