Trademark Law and Practice, Pages 26–35

International News Service v. The Associated Press

Supreme Court of the United States, 1918

Facts:

Complainant, the Associated Press, allowed members to publish its stories, but only in their specified newspapers, languages, and locations. Members were required to exclusively supply their stories to complainant, and were not allowed to distribute complainant's news to others before publication. Defendant had a similar but smaller business, and some of their members overlapped.

Complainant sued defendant to stop it from bribing newspapers to give it complainant's stories before publication, from inducing complainant's members to violate its by-laws and give defendant stories, and from copying news from bulletin boards and early editions of complainant's newspapers.

Plaintiff's Argument:

Defendant's actions violate complainant's property right and constitute unfair competition in business.

Defendant's Argument:

When complainant publishes stories earlier on the east coast, it becomes the common possession of the publishers thereof, so defendant is allowed to resell it in competition with complainant.

Issues:

  • Can complainant stop defendant from taking news from bulletin boards and early editions of complainant's newspapers?

  • LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 28
    1. Whether there is any property in news;
    2. Whether, if there be property in news collected for the purpose of being published, it survives the instant of its publication in the first newspaper to which it is communicated by the news-gatherer; and
    3. Whether defendant’s admitted course of conduct in appropriating for commercial use matter taken from bulletins or early editions of Associated Press publications constitutes unfair competition in trade.

Rule:

The contribution to a newspaper can be copyrighted, but the news itself cannot be.

Reasoning:

While a newspaper purchaser is allowed to spread knowledge from it gratuitously for purposes not unreasonably interfering with complainant's business, it is different for defendant to republish it commercially in competition with complainant. In such a case, it is an unauthorized interference with complainant's business without contributing anything of its own.

Holding:

Defendant is not allowed to reprint early editions before complainant. Affirmed.

Dissenting Opinions:

  • Holmes: When words are not copyrighted, one generally cannot stop others from repeating them. While defendant should be required to credit plaintiff as the source here, it should not be prevented from publishing news from complainant with proper credit no matter how soon it does so.

  • Brandeis: Complainant claims that news its members collect is its property because it still has commercial value to them at such an early time. Something having value is not enough to prevent others from using that thing as well, however, even if their gains are unearned. Neither is defendant obtaining the news in a clearly illegal manner such as breach of contract or fraud.

    Defendant is also not using the news objectionably. It does not mention complainant and is thus not exploiting complainant's reputation. It is merely using complainant's product for profit, which it is allowed to do, as it is not the property of complainant. No contract or law requires defendant to credit the source of its uncopyrighted story.

    Defendant recently had its access to European sources cut off as an effect of the World War, though not of its own fault. This could just as easily have happened to complainant instead, and defendant and its readers should not be punished for an event beyond their control.

    Regardless, legislators would be better equipped to formulate a remedy for such cases than the courts are, so we should not establish a new rule of law.

Notes:

  • At this time, one could not have a copyright without registering it, which the AP did not have time to do.

  • This is not good law anymore.

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