A federal court in New York on Tuesday refused to dismiss a lawsuit by The Associated Press that claims a competing news service, All Headline News Corp., misappropriated its news content by drafting stories based on AP reports.
According to the court’s order, AP claimed that AHN “does not undertake any original reporting,” instead hiring “poorly paid individuals to find news stories on the internet and prepare them for republication under the AHN banner, either rewriting the text or copying the stories in full.”
In addition to claiming copyright infringement where AHN allegedly directly copied stories, AP relied on a more obscure “hot news” tort where AHN allegedly rewrote the stories before posting them. While the words used in a news story can be copyrighted, the underlying facts cannot.
The “hot news,” or breaking news, tort dates to a 1918 Supreme Court case named International News Service v. Associated Press. In that case, which also involved AP suing a rival news service, the Supreme Court found that breaking news could be considered the “quasi property” of a news service. It allowed AP to sue because allowing one news organization to profit from the work of another would “render publication profitless.”
Though “hot news” lawsuits are far less common than copyright or trademark suits, and the law varies from state to state, the court found that they can be brought in New York when a five-part test is met: “(i) a plaintiff generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendant’s use of the information constitutes free riding on the plaintiff’s efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.”
The court also refused to dismiss a claim that AHN violated the Digital Millennium Copyright Act by removing information that “identif[ied] the Associated Press as the owner and author of published articles.” The court did, however, dismiss trademark and unfair competition claims.