Publishing Another Newspaper’s Spiked Story: Copyright Infringement or Fair Use?
Some of the commenters on the Bret Stephens’ Spiked Story on the Donald McNeil Firing, Published by the New York Post thread asked: Is the Post’s publishing the story copyright infringement? Here’s my thinking on the matter.
[1.] I expect that the copyright in the article is likely owned by the Times, whether because (a) Stephens is an employee and the article is a work for hire, (b) Stephens is a contractor and there is a written agreement that the article will be treated as a work for hire (permissible for collective works such as newspapers), or (c) Stephens is a contractor and there is a written agreement assigning the copyright in all his articles (spiked or not) to the Times. The Post’s publishing the article will thus be presumptively an infringement of the Times’s copyright.
[2.] But that presumption can be rebutted if the Post shows “fair use.” The boundaries of fair use are notoriously vague, but as commenter Bored Lawyer reminded me, there’s a closely analogous 2014 Second Circuit case called Swatch Group Management Servs. Ltd. v. Bloomberg L.P., which would cut strongly in the Post’s favor. (The Second Circuit’s jurisdiction includes federal courts in New York, where a New York Times v. New York Post case would likely be filed.)
In Swatch, Bloomberg published an unauthorized recording of “a conference call convened by [Swatch] to discuss the company’s recently released earnings report with invited investment analysts”; Swatch sued, but Bloomberg won on fair use grounds. Here’s how the New York Post would presumably argue the case:
A. The first fair use factor, “the purpose and character of the use,” expressly favors uses for “news reporting.” Just as Bloomberg was reporting on an important news event (the Swatch earnings report discussion), so the Post was reporting on an important news event—not just the firing of McNeil, but the Times’ spiking of a story written by a prominent Times commentator critical of the Time
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