- The Shetland Times Case
A recent case out of Scotland illustrates one type of harm that a linked site owner
perceived to result from links to its site. In The Shetland Times Co., Ltd. v. Wills,^3038 the
plaintiff, The Shetland Times (“Times”), maintained a website containing copies of articles that
appeared in the printed version of its newspaper. Users visiting the site were initially presented
with a “front page” containing headlines. Clicking on a headline linked the user to the full text
of the article. The Times planned to sell advertising space on the front page.
The defendant, The Shetland New (“News”), also maintained a website. News took
verbatim the headlines from Times’ site and placed them on News’ Web page to allow users at
News’ site to link directly to the full text of Times’ articles, without having to first view Times’
front page. This bypassing of Times’ front page obviously caused harm to Times’ ability to sell
advertising on the front page, since those readers of Times’ articles who arrived at the articles
through links from News’ site would never see the ads. Times sued News in the Scotland Court
of Sessions, alleging that News’ copying of Times’ headlines constituted copyright infringement.
The court issued an “interim edict” (a temporary order) pending a full hearing, ruling that
the headlines could be considered copyrightable literary works. The court rejected the
defendant’s argument that the headlines were not the product of sufficient skill or effort, finding
that because many of the headlines consisted of eight or so words that imparted information,
copying of the headlines might at least in some instances constitute copyright infringement.
The parties subsequently settled their dispute by agreeing that News would be permitted
to link to stories on Times’ website by means of headlines only in the following manner: each
link to any individual story would be acknowledged by the legend “A Shetland Times Story”
appearing underneath each headline and of the same or similar size as the headline; adjacent to
any such headline or headlines there would appear a button showing legibly the Times masthead
logo; and the legend and the button would each be hypertext links to the Times online headline
page.
Under United States law, in most instances headlines will probably not be individually
copyrightable under the “words and short phrases” doctrine,^3039 which holds that individual
words and short phrases such as titles are not copyrightable, although a collection of headlines
might be copyrightable as a compilation. Thus, News’ verbatim copying of a collection of
on database and copyright protection. Jean Eaglesham, “Recruiter Bans Rival’s Links,” available as of Jan. 18,
2001 at http://news.ft.com/ft/gx.cgi/ftc?pagename=View&c=Article&cid=FT3YQ8AC2IC.(^3038) Scotland Court of Session, Oct. 24, 1996.
(^3039) See, e.g., Hutchins v. Zoll Medical Corp., 492 F.3d 1377 (Fed. Cir. 2007) (copyright does not protect individual
words and “fragmentary” phrases when removed from their form of presentation and compilation); Dobson v.
NBA Properties, Inc., 1999 Copyr. L. Dec. ¶ 27,891 (S.D.N.Y. 1999) (phrase “Chicago Bulls Repeat
Threepeat” was not protectable under the “words and short phrases doctrine” embodied in 37 C.F.R. §
202.1(a)); Acuff-Rose Music, Inc. v. Jostens, Inc., 988 F. Supp 289 (S.D.N.Y. 1997) (phrase “You’ve got to
stand for something or you’ll fall for anything” was an unprotectable cliché); Apple Computer, Inc. v. Microsoft
Corp., 799 F. Supp. 1006 (N.D. Cal. 1992).