Digital Media Lawyer Beware: Court's Rejection of "Hot News" Cause of Action Appears to Be Based on Misunderstanding of Pleading Standards For Hot News Claim
A March 6, 2009 decision by a District Court judge appears to have missed a clear case in which the "hot news" doctrine should have been applied. In ScrantonTimes, L.P., et al. v. Wikes-Barre Publishing Co., Middle District of Pennsylvania, 3:08-cv-2135, in rejecting a motion to remand, the judge refused to accept Scranton Times' characterization of its misappropriation of obituaries claim as one for misappropriation of "hot news", instead ruling that it was a mere copyright infringement claim and pre-empted by the Copyright Act.
Scranton Times alleged that it maintained an obituary department that worked with local funeral home directors and the families of deceased to compose and publish obituaries. Scranton Times claimed that a Wilkes-Barre unit, the Times-Leader, republished fifty of these obituaries during a single week in October 2008. In November 2008, Scranton Times filed a state court complaint, based on these allegations, raising misappropriation, unfair competition and other claims, and seeking damages and injunctive relief. Wilkes-Barre removed the claims to federal court, claiming that the complaint stated a cause of action for copyright infringement -- a federal question.
In its motion to remand to state court, Scranton Times stated that its complaint was based on the "hot news" doctrine, which was recognized by the U.S. Supreme Court in International News Service v. Associated Press, 248 U.S. 215 (1918). In that case, INS would take AP news stories from East Coast newspapers and wire them to the West Coast newspapers that had yet to go to press. The doctrine has also been recognized in more recent cases, such as Associated Press v. All Headline News Corp., Southern District of New York, 08 Civ. 323 (PKC), a suit in which the AP claimed that the All Headline News Network (AHN) copied or rewrote breaking news stories that AHN obtained from the Internet which had originally been authored by AP, and then resold these stories to newspapers, Internet Web portals, digital signage networks and other distributors of news content.
A recent suit brought by the Associated Press (AP) highlights the "Hot News" doctrine, which can be used to obtain protection against the unauthorized copying and redistribution of factual information that is otherwise not covered by the Copyright Act. In Associated Press v. All Headline News Corp., Southern District of New York, 08 Civ. 323 (PKC), the AP bought suit against the All Headline News Network (AHN). AP claimed that AHN copied or rewrote breaking news stories that AHN obtained from the Internet which had originally been authored by AP, and then resold these stories to newspapers, Internet Web portals, digital signage networks and other distributors of news content. (fn1) 
