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16B facts are not copyrightable
International News Service and Associated Press were competitors, each gathering and distributing news to newspapers. Association Press members were “individuals who are either proprietors or representatives of about 950 daily newspapers published in all parts of the United States.” Under its “by-laws each member agrees upon assuming membership that news received through complainant’s service is received exclusively for publication in a particular newspaper, language, and place specified in the certificate of membership, that no other use of it shall be permitted, and that no member shall furnish or permit any one in his employ or connected with his newspaper to furnish any of complainant’s news in advance of publication to any person not a member. And each member is required to gather the local news of his district and supply it to the Associated Press and to no one else.” International New Service “serve[d] about 400 newspapers located in the various cities of the United States and abroad, a few of which are represented, also, in the membership of the Associated Press.”
International News was charged with violating AP rights variously: “First, by bribing employe[e]s of newspapers published by complainant’s members to furnish Associated Press news to defendant before publication, for transmission by telegraph and telephone to defendant’s clients for publication by them; second, by inducing Associated Press members to violate its by-laws and permit defendant to obtain news before publication; and, third, by copying news from bulletin boards and from early editions of complainant’s newspapers and selling this, either bodily or after rewriting it, to defendant’s customers.” The District Court granted injunction based on the first and second charges, but refused “to restrain the systematic practice admittedly pursued by defendant, of taking news bodily from the bulletin boards and early editions of complainant’s newspapers and selling it as its own. The court expressed itself as satisfied that this practice amounted to unfair trade” (especially since west-coast American newspapers could be sent stories by telegraph that had already appeared in the east-coast early-morning editions), and this last matter was the only one to go to the Supreme Court.
Newspapers are prepared too quickly to file copyrights prior to publication. The Court recognized, “No doubt news articles often possess a literary quality, and are the subject of literary property at the common law; nor do we question that such an article, as a literary production, is the subject of copyright by the terms of the act as it now stands.[…] But the news element—the information respecting current events contained in the literary production—is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day.”
Recognizing that its verdict would not bring relief to the news-gatherers who were bearing the greatest expenses, the Court reported a critical fact that would not soon change: “since in speed the telegraph and telephone easily outstrip the rotation of the earth, it is a simple matter for defendant to take complainant’s news from bulletins or early editions of complainant’s members in the eastern cities and at the mere cost of telegraphic transmission cause it to be published in western papers issued at least as early as those served by complainant.”
(EDITOR’S NOTE: Although the Supreme Court determined that there had been no infringement, states developed unfair-competition laws in response.)
A “directory of produce growers and dealers” copied data from a competitor “without independent investigation”. The publisher of this earlier publication (known as the “Blue Book”) testified that its directory was produced at a cost of $500,000 and it was able to establish infringement. The Court decision reports that “common errors in [the] two publications are persuasive evidence of copying”. The Judge wrote that a copyrighted book can be used for comparison and checking, but when the information published is based on what is copied, rather than on what is verified, there is infringement. (The decision does not cite state law as the basis of the decision.)
“Section 1 (a) … reserves to plaintiff the exclusive privilege of ‘copying’ and ‘reprinting’ the copyrighted work. The cases construing this provision have made it clear that protection is afforded, not to ideas therein expressed, but to the original wording, the distinctive word order, the literary style in which the ideas are presented. Thus if John Doe has copyrighted a description of the Battle of Gettsyburg, he has not precluded any other historian from discussing or describing the events of that battle. He has merely preëmpted the right to narrate the incidents in that particular, original wording which he has employed. Another may relate exactly the same incidents, but in different words, and thereby not infringe the copyright, insofar as it covers a book, as such.”
(The above is explication included in the decision as groundwork for a verdict that despite the plaintiff’s having copyright on his story-free pamphlets describing “a set a regulations for running a race”, the plaintiff did not own the idea behind the game. A more complete summary is under sports.)
“It is averred that the defendant infringed the plaintiff’s copyright ‘by publishing and placing upon the market certain advertisements entitled ‘First Facts’ which appeared in a certain publication called Radio Daily, and which were copied largely from plaintiff’s copyrighted books entitled Famous First Facts and More First Facts.
“It appears from the exhibits attached to the complaint that the defendant used the words ‘First Facts’ as a sort of headline for its advertisements and that in each advertisement complained of it printed one ‘first fact’ which admittedly, it obtained from the plaintiff’s books. The wording of the items, though not exactly the same as that printed in the plaintiff’s books, is a good deal like it, but that is unimportant because the various paragraphs of the plaintiff’s books are merely the barest possible statements of historical facts, some important and some unimportant, and they could hardly be used at all without rather closely approximating the wording of the plaintiff’s paragraphs.
“The defendant’s advertisements came out on separate days. There was no attempt to adopt the plaintiff’s general scheme of collating and presenting the facts which are the meat of the books and consequently no appropriation of any of the various elements of original authorship which have been protected in cases involving statistical lists, catalogs, directories and the like compilations. The defendant has appropriated only two things, first, the name ‘First Facts’ (which is not subject to copyright protection) and, second, the bare facts themselves… .
“The defendant is in no sense competing with the plaintiff and the material appropriated by it cannot injure the plaintiff either by prejudicing the sale, diminishing the profits or superceding the objects of the original work. In fact, it would almost seem as though the plaintiff’s books were intended to be used in some manner similar to that in which the defendant has used them. They are not literary productions to be read as a whole, but serve to place interesting facts in the hands of people who want to know about them or have some use to which they can put them. Of course, the plaintiff does not ‘own’ the facts themselves, but, on no other theory, could he restrain the use which the defendant is making of them.”
Howard Loeb, owner of radio station KRIZ in Phoenix, Arizona, sued the owner of KLIF in Dallas, Texas. Stock car automobile races in Phoenix were broadcast by KRIZ and could be heard within a 40-mile radius of the station. “KRIZ, which broadcast, not copyrighted, could be heard at all points within the 40-mile radius of Phoenix, which marks the limits of the station’s broadcasting power. [KRIZ] had obtained a sponsor for his program… which company paid a valuable consideration… for the advertising it received as a sponsor. Somewhere within the 40-mile radius of … KRIZ… [, KLIF] had stationed an agent who listened to the broadcast, and by long distance phone communicated to [KLIF] information covering the bare facts, in abbreviated form, pertaining to each race as it was being run. In Dallas the person receiving this information made notes on slips of paper. These notes were handed to A. L. Turner, a talented and experienced announcer, who then referred to the notes to broadcast over Station KLIF at Dallas a recreation of the races. Station KLIF also had a commercial sponsor for its program.
“Turner did not rebroadcast KRIZ’s program; he presented to his listener a recreation of the races. A rebroadcast and a recreation are different. The first is an exact reproduction of a program… .”
Although the speedway had a right to restrict visitors, prohibit those on the premises from having contraband equipment, and to treat violators as trespassers, “The record shows only that [KLIF’s agent] listened to [KRIZ’s] broadcast somewhere within a 40-mile radius of the speedway, which of course he had a perfect right to do… .
“The actual happenings of each day, including sports events, become part of the facts of history immediately upon their happening. News cannot be copyrighted…” There is a different matter where a news agency has “fresh news items it has collected at great labor and expense” but this applies to a rival. There wasn’t competition here in that “Phoenix, Arizona is more than a thousand miles from Dallas, Texas… . In fact it is undisputed that appellant has made no attempt to compete with appellees in Dallas, nor have appellees made any attempt to compete with appellant in Phoenix. Under these circumstances the principal of unfair competition is not applicable.”
“By sending out the news over the airways…, appellant in effect published the information it had collected. Under our law, as a result of such publication the material became available to everyone, since it was uncopyrighted.”
Ian Hamilton wrote an unauthorized biography of “renowned author” J.D. Salinger. Before its publication by Random House, Hamilton in July 1983 sought the Salinger’s cooperation, which was refused. Hamilton spent three years preparing J.D. Salinger: A Writing Life, completing a manuscript which quoted extensively from Salinger’s unpublished letters. Salinger sued, arguing that Hamilton was not entitled to quote so much that he kept or paraphrased Salinger’s literary devices.
“The facts may be reported. Salinger’s letters contain a number of facts… and Hamilton is entirely free to fashion a biography that reports these facts. But Salinger has a right to protect the expressive content of his unpublished writings for the term of the copyright, and that right prevails over a claim of fair use under ‘ordinary circumstances.’” (A thorough summary of this case is under fair use.)
“Motorola and Sports Team Analysis and Tracking Systems (‘STATS’) appeal from a permanent injunction … barring, … the sale of a handheld pager that displays updated scores and statistics of National Basketball Association games as they are played… . We hold that Motorola and STATS have not unlawfully misappropriated NBA’s property by transmitting ‘real-time’ NBA game scores and statistics taken from television and radio broadcasts of games in progress.”
Furthermore, “we also hold that appellants’ transmission of ‘real-time’ NBA game scores and information tabulated from television and radio broadcasts of games in progress does not constitute a misappropriation of ‘hot news’ that is the property of the NBA.”
Insofar as copyright eligibility is concerned, “Sports events are not ‘authored’ in any common sense of the word… .
“Indeed, prior to 1976, there was even doubt that broadcasts describing or depicting such events, which have a far stronger case for copyrightability than the events themselves, were entitled to copyright protection. Indeed, as described in the next subsection of this opinion, Congress found it necessary to extend such protection to recorded broadcasts of live events. The fact that Congress did not extend such protection to the events themselves confirms our view that the district court correctly held that appellants were not infringing a copyright in the NBA games.
“As noted, recorded broadcasts of NBA games — as opposed to the games themselves — are now entitled to copyright protection. The Copyright Act was amended in 1976 specifically to insure that simultaneously-recorded transmissions of live performances and sporting events would meet the Act’s requirement that the original work of authorship be ‘fixed in any tangible medium of expression.’…
“Although the broadcasts are protected under copyright law, the district court correctly held that Motorola and STATS did not infringe NBA’s copyright because they reproduced only facts from the broadcasts, not the expression or description of the game that constitutes the broadcast. The ‘fact/expression dichotomy’ is a bedrock principle of copyright law that ‘limits severely the scope of protection in fact-based works.’ ‘No author may copyright facts or ideas. The copyright is limited to those aspects of the work — termed “expression” — that display the stamp of the author’s originality.’”.
(The NBA had objected that STATS competed with Gamestats, a service offered by the NBA. The suggestion was that STATS was reselling information derived from Gamestats, but the Court determined that Motorola and STATS “are in no way free-riding on Gamestats. Motorola and STATS expend their own resources to collect purely factual information generated in NBA games to transmit to SportsTrax pagers. They have their own network and assemble and transmit data themselves.”)
Cases Summarized in Other Sections
|Chicago Record-Herald Co. vs Tribune Association (launch this) decided that one newspaper’s article on the same subject as a rival’s was not merely a presentation of the same facts but the appropriation of the earlier author’s thinking and wording.
Pottstown Daily News Publishing Company vs Pottstown Broadcasting Company (launch this) had a newspaper believing that a television station was copying from the newspaper rather than gathering its own news.
T.L. Christianson vs West Pub. Co. (launch this) involved two maps which each used color schemes to represent information.
Worth vs Selchow (launch this) decided whether information in particular trivia books were fair game to be copied in the game Trivial Pursuit.
The Gelles-Widmer Company vs Milton Bradley Company and A.C. McClurg & Co. (launch this) was a suit over flashcards that were duplicated from a competitor.
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© 2007 David P. Hayes