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 Times itself. Just as (to quote Swatch),”[i]nvestors and analysts have an interest in obtaining important financial information about companies whose securities are traded in American and other markets,” so Americans have an interest in obtaining important information about how one of America’s leading newspapers deals with such controversies.

B. That the use is commercial doesn’t keep it from being fair use. As the court noted in Swatch, “[a]lmost all newspapers, books and magazines are published by commercial enterprises that seek a profit.” Therefore, the commercial nature of the use doesn’t matter much for fair use analysis so long as “the link between [the defendant]‘s commercial gain and its copying is … attenuated” (e.g., when “it would strain credulity to suggest that providing access to [the copied material] call more than trivially affected the value of [defendant's] service”).

C. The Post’s actions can be fair use even though they involved literal copying, and thus weren’t “transformative” the way parody would be, or the way including quotes in a book review would be:

In the context of news reporting …, the need to convey information to the public accurately may in some instances make it desirable and consonant with copyright law for a defendant to faithfully reproduce an original work without alteration…. Furthermore, a secondary work “can be transformative in function or purpose without altering or actually adding to the original work.” Here, notwithstanding that the data disseminated by [the Post] was identical to [the work owned by the Times], the two works had different messages and purposes…. [The Post's] message — “This is what [the Times spiked]” — is a very different message from the original article’s — “This is what you should believe.”

Moreover, [the Times] intended to exclude members of the [public from reading Stephens' story]. [The Post's] objective in [printing the column], by contrast, was to make this information public, defeating [the Times'] effort to restrict access. [The Post's] purpose, in other words, was to publish this [article] to an audience from which [the Times's] purpose was to withhold it. These differences give [the Post's] use at least an arguably transformative character.

D. The third fair use factor, ”the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” also doesn’t preclude fair use:

This factor asks whether “the quantity and value of the materials used are reasonable in relation to the purpose of the copying.” … For the reasons already explained in our discussion of the first fair use factor, we agree with the district court that [the Post's] use of the entire [article] was reasonable in light of its purpose of disseminating important [information about the Times' actions to the public].

E. As to the fourth use factor, “the effect of the use upon the potential market for or value of the copyrighted work,” it would cut in favor of fair use, “especially in view of the obvious … fact that [the Times] had no interest in the exploitation of the copyright-protected aspects of the [article].”

F. Now there are couple of differences between the hypothetical Times v. Post case and Swatch: (1) Swatch had decided to give its presentation to over a hundred analysts, while the Times presumably didn’t authorize distributing the article to anyone outside the Times; and (2) the Swatch presentation was “manifestly factual,” while the article was more expressive. Both of these factors go to the second fair use factor, “the nature of the copyrighted work.” But on balance, I don’t think these differences are enough to tip the fair use balance the other way.

[3.] But we’ll likely never know how courts would apply the fair use defense here, because the matter will almost certainly not get to court. It would be quite bad for the Times’ reputation, I think, to sue over another newspaper’s essentially publishing a leak from the Times’ newsroom: Publishing leaks of others’ documents is a common part of the Times’ own business, in the name of “the public’s right to know”; it would look hypocritical to complain about someone doing the same to the Times.

And what would the Times get out of this? It wasn’t going to exploit Stephens’ article in any event, so there wouldn’t be any actual damages. (Damages stemming from loss of reputation to the Times, if any, as a result of the Post’s publication, wouldn’t count for copyright purposes, I think.) Some copyright cases are viable because the plaintiff can get attorney fees and statutory damages (in theory, up to $150,000). But under the Copyright Act, “no award of statutory damages or of attorney’s fees, … shall be made for … any infringement of copyright in an unpublished work commenced before the effective date of its registration”—and I doubt the Times registered the article that it wasn’t planning to publish.

Other copyright cases may make sense for the plaintiff because they may deter other infringement in the future. But that won’t work here, again especially because the Post wouldn’t have to pay the Times’ attorney fees or damages (though it would have to pay its own attorney fees).

So the fair use discussion above is largely academic. But at least it shows that the Post has a good-faith argument that it’s complying with the law. And indeed I think that it’s actually a strong argument.