Warman v Fournier: Copyright in Titles and Headlines of Newspaper Articles?

Notwithstanding that I said I wouldn’t say much about the Warman v. Fournier appeal case, another point needs to be made in order to alert interested parties to the possible need to intervene.

The National Post is arguing that it is entitled to enforce copyright in the title (headline) of a newspaper article entitled: "Jonathan Kay on Richard Warman and Canada's Phony-Racism Industry"

The National Post says in its memorandum:

62. Moreover, the headline of the article was also a substantial part of the work. The application judge erred by failing to consider the effect of reproducing the headline of the article even though the Copyright Act defines a "work" as including the title of that work "when such title is original and distinctive."

63. The headline of the article was both original and distinctive. In Canada, the threshold for originality in a work is "rather low." In order for a work (or the title of a work) to be "original", all that is required is an exercise of skill and judgment by the author, which involves intellectual effort. Such exercise must not be so trivial that it could be characterized as a purely mechanical exercise. However, the statutory requirement of originality does not imply inventive originality. It is enough that the work is the production of something in a new form as a result of the skill, labour and judgment of the author.

64. Something that is "distinctive" is "serving to differentiate or distinguish; peculiar to one person or thing as distinct from others, characteristic; having well-marked properties; easily recognized." Something that is "distinct" is "distinguished as not being the same; not identical; separate; different in nature or quality."49 The title of the Kay Work possesses these qualities, distinguishing the Kay Work from other newspaper articles, and in so doing is distinctive.

65. The headline, "Jonathan Kay on Richard Warman and Canada's Phony-Racism Industry", clearly demonstrates creativity, originality and distinctiveness, including the distinctive and original concept of a "phony-racism industry."

 (footnotes omitted)

This position, if adopted by the Federal Court of Appeal, would have startling and potentially absurd consequences. The automated extraction of titles (i.e. headlines) is the very basis not only of Google News and other news aggregators but of Google, Bing and other search engines. Every scholarly article is full of cited titles.

Not to mention Twitter, in which a very large percentage of tweets are nothing more than automated quotations of newspaper article headlines, blog titles, etc.  with a shortened link. e.g.

Warman v Fournier: Copyright in Titles and Headlines of Newspaper Articles? bit.ly/XMt7a8
— Howard Knopf (@howardknopf) March 14, 2013

The assertion also flies in the face of one of the most famous of old chestnut copyright cases from the Privy Council. In 1939, the Privy Council ruled in a landmark case involving the then famous song “The Man Who Broke the Bank at Monte Carlo” and the eponymous movie that: 

“As a rule, a title does not involve literary composition, and is not sufficiently substantial to justify a claim to protection. The statement does not mean that in particular cases a title may not be on so extensive a sale and so important a character as to be a proper subject of protection against being copied”.

But not in that case, and that was a very memorable and reasonably lengthy title as far as titles go. See Francis, Day & Hunter v. Twentieth Century Fox [1939] 4 All E.R. 192 at 197. This authority is not mentioned in the National Post’s memorandum.

In other words, it will be very, very rare that a title is sufficiently substantial and original to warrant copyright protection. Frankly, IMHO, this particular instance does not leap to the forefront of such cases.

However, someone needs to make points such as this to the Fedeal Court of  Appeal.  Otherwise, such common place applications as Google News, Twitter, and such common practices as citing articles by names may be imperilled.

The Fourniers, who are representing themselves, have done well to date but they are not expert litigators or copyright lawyers. 

Interveners, start your engines.

HPK