Who owns the work -- The Creative Commons alternative -- Hot news

Who owns the work

A journalist does not always own the copyright in his or her original work. Copyright ownership can hinge on an employment relationship. The U.S. Supreme Court has held that copyright ownership depends on whether the work was prepared as an employee or an independent contractor. An employee’s work is considered “work for hire” and copyright belongs to the employer; an independent contractor’s work is owned by the independent contractor. Unless there is an express, written agreement to the contrary, a freelancer is considered an independent contractor and is presumed to hold the copyright.9

Ownership questions can arise in a variety of situations. Investigative journalists won a victory when a federal appellate court blocked an attempt to use copyright ownership principles to squelch undercover reporting. When reporters working as deli clerks videotaped conditions inside a grocery chain’s stores, the grocery chain sued, claiming that it owned the copyright to the videotapes made during the investigation. The tapes were works for hire because the reporters were employed by the chain while they surreptitiously conducted the investigation, it claimed. Both the federal trial court and appellate court rejected the claim on the grounds that investigative reporting was beyond the scope of the reporters’ employment with the chain.10


The Creative Commons alternative

Online publishers whose uses of copyrighted works do not qualify as “fair uses” have another method of using parts of others’ works. Alternative copyright schemes exist that are legal copyright agreements because they are more like private contractual agreements in which authors limit their rights voluntarily and allow for greater use of copyrighted works. Through the system of “Creative Commons,” a creator can opt to reserve certain rights while granting other rights to the users of the works.

This copyright format signifies that some but not all rights are exclusively reserved to the copyright owner. Users of the Creative Commons copyright can allow unlimited use of their material, as long as certain provisions are met. Some of the licenses, for example, may require attribution any time a work is used or may forbid the use of a work for commercial purposes.

A work’s creator can choose from one of 11 different copyright options. Users then receive put the Creative Commons copyright symbol on their sites and link to Creative Commons’ site. When someone clicks on the symbol, it refers them to the type of license that was selected.

The licensing process may appear simple, but the Creative Commons copyright is still a completely legal one. Many people adopt a Creative Commons license to show support for the sharing of information but still reserve some control. Information about this approach can be found at creativecommons.org.


Hot news

News media content creators sometimes seek legal redress from those who use portions of their timely reporting under the “hot news doctrine.”

Established in 1918 in the case International News Service v. Associated Press,11 the hot news doctrine arose when AP alleged that INS was obtaining AP stories from early edition newspapers and then copying or rewriting the stories to sell to other publishers. The Supreme Court rejected AP’s argument that it had property rights to the news but said that a competing news service could be prevented from taking another news service’s original content “until its commercial value as news … has passed away.”

Though “hot news” lawsuits are far less common than copyright or trademark suits, they have been increasing with internet reporting and linking. The law on this doctrine varies from state to state.

In New York, a court found that such suits can be brought in the state 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.”

Internet sites that post content from other services have been the target of hot news lawsuits, particularly in U.S. District Court in New York.

A federal judge in New York in February 2009 refused to dismiss a lawsuit by The Associated Press that claimed a competing news service, All Headline News Corp., misappropriated its news content by drafting stories based on AP reports.12 The suit was settled a few months later, with AHN agreeing to pay an undisclosed amount.

Three financial services firms sued the website theflyonthewall.com over its use of their market research. A federal judge in New York ordered the website to wait two hours before publishing the information while the markets were open,13 and the case was being considered by the U.S. Court of Appeals in New York City (2nd Cir.) at the end of 2010. News media organizations weighed in on the side of upholding the hot news doctrine, while website companies like Google and Twitter opposed it in briefs before the court.

Financial news service Briefing.com settled a lawsuit with Dow Jones & Co. in November 2010 after the website admitted to hot news violations by systematically republishing time-sensitive headlines and articles from Dow Jones. Dow Jones filed a lawsuit in April in the U.S. District Court in New York after it discovered Briefing.com copied and republished more than 100 news articles and 70 headlines within minutes of their publication on the Dow Jones Newswires during a two-week period.14


9. Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).

10. Food Lion Inc. v. Capital Cities/ABC, Inc., 946 F.Supp. 420 (M.D.N.C. 1996), affirmed, 1997 Copyright L. Rep. P27, 673 (4th Cir. June 19, 1997).

11. International News Service v. Associated Press, 248 U.S. 215 (1918).

12. Associated Press v. All Headline News Corp., 608 F.Supp.2d 454 (2009)

13. Barclays Capital Inc. v. Theflyonthewall.com, 700 F.Supp.2d 310 (S.D. N.Y. 2010)

14. News Media Update, “Website admits copyright, ‘hot news’ violations, ” Nov. 17, 2010, available at http://www.rcfp.org/newsitems/index.php?i=11633