Don't Copy This Headline!

BNA

Friday, February 10, 2006
ISSN 1535-1610
News

Anaylsis & Perspective
Don't Copy This Headline!


The authors discuss the potential impact of a pending copyright infringement case that challenges Google's use of newspaper headlines to link to news stories.
Judge Gladys Kessler is poised to make summary judgment rulings in a case that has fleshed out yet another novel copyright issue wrought by the Internet. That case, Agence France-Presse v. Google Inc., D.D.C., No. 05-00546, pending in the U.S. District Court for the District of Columbia, presents the question of whether newspaper-article headlines are copyrightable. The court's decision on this issue of first impression could have far-reaching effects both for news-aggregators like Google and for your average blogger alike.

In this article, we outline the issues and arguments raised by the parties, and consider some possible outcomes. Following Judge Kessler's ruling on the summary judgment motion, we will analyze the possible consequences of the court's decision.


Background

The case arises in the context of Google's news service, Google News, which is described in papers filed by Google as a tool that helps users "identify and locate Web pages containing news stories and images on a given subject." Google News displays headlines to identify available news stories on a range of topics. To read a particular story, a user clicks on a headline, which whisks the user away from Google's Web site to the Web site where that particular story has been published. The Google News site that displays these headline-links is generated using Google's proprietary "Web crawlers" that search and organize information on the Internet.
Plaintiff Agence France-Presse is a wire service that, according to its court papers, supplies news stories, headlines, photographs, and graphics to, among others, newspapers, Web sites, and news aggregators. The gravamen of AFP's complaint (as it relates specifically to headlines) is that when Google News copies and displays headlines generated and supplied to news outlets by AFP, it is infringing on AFP's copyrights in those headlines.

The copyrightability of those headlines came to a head when Google filed its motion for partial summary judgment, arguing that AFP's headlines are not copyrightable as a matter of law.


Google: Headlines Are Short, Ordinary Titles
That Are Not Entitled to Copyright Protection


Google presses three arguments in support of its assertion that AFP's headlines are not copyrightable. First, Google argues that AFP's headlines are fact-based and too ordinary to merit protection. Second, Google argues that the AFP headlines are too short to merit protection, even if they are witty. Finally, Google argues that the headlines are equivalent to titles of works, which Copyright Office regulations and courts declare uncopyrightable.
Google contextualizes its first argument--that headlines are fact-based and ordinary--by citing to admissions by AFP that its headlines are typically factual, simple, and contain only one idea. AFP also admitted that headlines of AFP articles are typically not "hardened" or "jazzed up." From these admissions, Google argues that headlines of such a nature cannot be copyrighted because copyright law does not protect ordinary factual statements about news or ideas since they lack the requisite creativity to merit protection.

Citing Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340, 18 USPQ2d 1275 (1991), Google first notes that news of the day is typically not copyrightable and is in the public domain. Google then marshals case law holding that ordinary phrases are not entitled to copyright protection. Cast in light of these principles, Google argues, AFP's headlines cannot be copyrightable because they are admittedly nothing more than simple, factual statements about news that is in the public domain.

In pressing its argument that AFP's headlines are too short to merit protection, Google cites to AFP's admission that its headlines are typically short--fewer than ten words. Highlighting the reciprocal relationship between length and the required degree of creativity for copyright protection, Google argues that even if the headlines were not fact-based and ordinary, they would not be copyrightable because they are too short.

Google directs the court's attention to case law in which such phrases as Pepsi's "You Got The Right One, Uh-Huh" and a guidebook entitled "Eat Your Art Out, Chicago" were found to be unprotectable despite their non-factual nature. Measured against this case law, according to Google, even if AFP's headlines were considered highly creative, rather than fact-based at ten words or less, they would be too short to merit copyright protection. Thus, under the circumstances of a case where the headlines are both short and fact-based, they are even less deserving of protection.

Last, Google argues that AFP's news headlines are equivalent to titles, which have no protection under copyright law. Regulations from the Copyright Office and case law are in accord in holding that titles to works are categorically unworthy of copyright protection. Google argues that AFP's headlines are simply titles to its news stories and, therefore, fall within this categorical exclusion. In support of its argument, Google cites several dictionaries that define a headline as the title or caption of a news article.


AFP: Headlines Are the Heart of the News Story, And Must Be Afforded Copyright Protection

AFP meets Google's arguments with four central contentions. AFP first argues that its news headlines are protected as fact-based compilations. Second, AFP counters that headlines are not titles subject to categorical exclusion. Third, AFP argues that when Google copies its headlines, it is copying the most important part of its news stories, which as a whole certainly qualify for copyright protection. Last, AFP appears to appeal to the equities of the case by arguing that Google is copying for free the very material that AFP licenses for a fee to its subscribers.
In arguing that its headlines are protected as fact-based compilations, AFP notes that creating a news-headline is no simple, unskilled task. AFP states that the author must take account of a multitude of facts, distill and interpret them, and determine which facts to emphasize so as to capture the essence of the story in the headline while also enticing a reader to read the full article.

AFP argues that such a process is not a mechanical process but rather one that requires a great deal of creativity, producing a result that is worthy of copyright protection. Moreover, AFP asserts, its headlines often express wit and humor.

By way of example, AFP cites to such headlines as "Robot dog keeps over-eaters on tight leash" and "Poor-fitting bras leave Australian women feeling like boobs" and "Pop goes soda in U.S. schools in victory for health campaign."

AFP also takes issue with Google's characterization of news headlines as titles. First, AFP notes that its search of numerous dictionaries' definitions of title turned up none that included headlines in its definition of title.

AFP further argues that headlines are integral parts of news stories, not titles of them. Expounding on this point, AFP analogizes a headline to the overture of an opera, as opposed to the opera's title. Even though the opera's title may not warrant protection, its overture almost certainly would; so too, then, should the headline of a news story, an overture's analogical equivalent.

Related to this argument is AFP's third point, in which AFP argues that its headlines are imbedded within and an integral part of the news story itself, which as a whole merits copyright protection. Under this characterization, AFP claims that by copying the imbedded headline, Google takes the most important part of the copyrighted news article. Citing Harper & Row Publishers Inc. v. Nation Enterprises, 471 U.S. 539, 225 USPQ 1073 (1985), AFP argues that such copying by Google is not de minimis and is sufficient to be infringing.

Finally, AFP notes that it licenses to its subscribers for a fee the same stand-alone headlines that Google News copies. That copying, AFP argues, threatens the financial incentive for wire services such as AFP to provide such a service. AFP asks rhetorically why any wire service would go to the expense of creating headlines and a network for their distribution if the wire service knows that its headlines are not protected and may be duplicated and used in a similar fashion by any competitor.


A Decision With Consequence

Judge Kessler heard oral arguments from the parties on Jan. 11, and the court anticipates ruling on Google's motion prior to the next status conference in the case set for March 21. The stark alternatives facing the court--either headlines are copyrightable or they are not--come with practical implications. A holding that news headlines are capable of exhibiting the creativity and originality necessary to merit copyright protection comes with both positives and negatives. Similarly, a categorical exclusion of news headlines from copyright protection would come with its own set of benefits and burdens.
Should the court conclude that headlines exhibiting the requisite amount of creativity and originality are copyrightable, one can imagine certain benefits that would flow from such a decision. First, such a result would likely foster the production of witty, entertaining, or otherwise interesting and engaging headlines in newspapers and other periodicals. Such a result also seems to appeal to an ordinary sense of fairness and to the equities of the case. Why, after all, should Google News be able to unabashedly copy AFP's headlines, which undeniably took time and effort to craft, and profit from doing it? Something does seem unfair about that.

On the other hand, such a ruling from the court could spread considerable concern throughout the so-called blogosphere that has arisen in recent years. Many bloggers routinely use headlines to link to news articles.

One could imagine that the threat of infringement litigation for such linkage would substantially chill that activity or at least lead to the inconvenience of having to independently compose a description of the article being linked to. As stated by Howard J. Bashman, author of the Web log How Appealing: "It is more difficult and time-consuming to have to describe articles rather than providing a headline with a link, so it is also likely that if headline linking becomes impractical, the end result at my Web log would be that fewer articles would be mentioned."

Finally, such a ruling would prevent services like Google News from automatically linking to news stories through what is an easy and efficient manner. If such news aggregators still chose to link via headlines, they would be forced to make a headline-by-headline call on the headline's copyrightability and risk litigation on any close call and damages if they were wrong.

Under such a scenario, none but the most dry and boring headlines would likely find their way onto Google News or similar services. Those services could probably strike a licensing deal with the authors of the headlines, but given the large number of news outlets searched and linked to, such an effort would likely be costly and time-consuming.

A decision from the court that news headlines are categorically uncopyrightable would of course be a bright-line rule that would eliminate these concerns. Such a rule, however, would not be without its costs. As noted above, it could disincentivize creativity and originality in crafting headlines. It would also be subject to the same criticism as the categorical rule against copyright protection for titles--overbreadth. Precluding copyright protection for all headlines might very well deprive creative and original expression of protection simply because of its location at the top of a news article.

Should the court settle on a rule denying copyright protection to headlines, one would expect such a ruling to be expressly limited to the factual, news-story context, leaving for another day the question of whether fictional headlines that poke fun and parody (such as those found in the popular newspaper spoof, The Onion, which currently displays headlines like "Black Box Records Last 90 Minutes of Hot-Air Balloon Crash" and "President Creates Cabinet-Level Position to Coordinate Scandals") merit at least the possibility of protection. Undoubtedly, however the court rules, its decision will receive due scrutiny as the first to decide an interesting and important copyright question with possibly far-reaching consequences. The decision will be of interest to both scholars and practitioners alike, with commentary, analysis, and debate likely to ensue.

Stay tuned.

Martin J. Bishop and Thomas K. Anderson are attorneys with Foley & Lardner, Chicago.


By Martin J. Bishop and Thomas K. Anderson


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