Advanced Copyright Issues on the Internet - Fenwick & West LLP

through links from News’ site would never see the ads. Times sued News in the Scotland Courtof Sessions, alleging that News’ copying of Times’ headlines constituted copyright infringement.The court issued an “interim edict” (a temporary order) pending a full hearing, ruling thatthe headlines could be considered copyrightable literary works. The court rejected thedefendant’s argument that the headlines were not the product of sufficient skill or effort, findingthat because many of the headlines consisted of eight or so words that imparted information,copying of the headlines might at least in some instances constitute copyright infringement.The parties subsequently settled their dispute by agreeing that News would be permittedto link to stories on Times’ website by means of headlines only in the following manner: eachlink to any individual story would be acknowledged by the legend “A Shetland Times Story”appearing underneath each headline and of the same or similar size as the headline; adjacent toany such headline or headlines there would appear a button showing legibly the Times mastheadlogo; and the legend and the button would each be hypertext links to the Times online headlinepage.Under United States law, in most instances headlines will probably not be individuallycopyrightable under the “words and short phrases” doctrine, 2093 which holds that individualwords and short phrases such as titles are not copyrightable, although a collection of headlinesmight be copyrightable as a compilation. Thus, News’ verbatim copying of a collection ofTimes’ headlines from a single Times newspaper as a basis for News’ links to the Times websitemight also constitute an infringement under United States copyright law. If Times’ suit had beenbrought in the United States, News would no doubt argue that its use of the headlines was a fairuse as part of news reporting. 2094 Times would no doubt argue in response that the commercialharm to its advertising revenues from its headlines on its own front page should defeat News’fair use argument. Although it is unclear how such a case would be decided under United Statesfair use law, the case is a good illustration of the copyright issues that may arise out of the act oflinking.2. The Total News CaseIn February of 1997, a number of news service providers (The Washington Post, CableNews Network, Times Mirror, Dow Jones and Reuters New Media) commenced a suit againstTotal News, Inc. (“Total News”) and other defendants who were either providing website design2093 See, e.g.,Hutchins v. Zoll Medical Corp., 492 F.3d 1377 (Fed. Cir. 2007) (copyright does not protect individualwords and “fragmentary” phrases when removed from their form of presentation and compilation); Dobson v.NBA Properties, Inc., 1999 Copyr. L. Dec. 27,891 (S.D.N.Y. 1999) (phrase “Chicago Bulls RepeatThreepeat” was not protectable under the “words and short phrases doctrine” embodied in 37 C.F.R. §202.1(a)); Acuff-Rose Music, Inc. v. Jostens, Inc., 988 F. Supp 289 (S.D.N.Y. 1997) (phrase “You’ve got tostand for something or you’ll fall for anything” was an unprotectable cliché); Apple Computer, Inc. v.Microsoft Corp., 799 F. Supp. 1006 (N.D. Cal. 1992).2094 “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including suchuse by reproduction in copies or phonorecords or by any other means specified by that section, for purposessuch as … news reporting … is not an infringement of copyright.” 17 U.S.C. § 107.- 456 -