Itar-Tass Russian News Agency v. Russian Kurier, Inc.

153 F.3d 82 (2nd Cir. 1998)

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Nature of the Case

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Facts

D is a Russian-language weekly newspaper with a circulation in the New York area of about 20,000. Ps include corporations that publish, daily or weekly, major Russian language newspapers in Russia and Russian language magazines in Russia or Israel; Itar-Tass Russian News Agency (Itar-Tass), formerly known as the Telegraph Agency of the Soviet Union (TASS), a wire service and news gathering company centered in Moscow, functioning similarly to the Associated Press; and the Union of Journalists of Russia (UJR), the professional writers union of accredited print and broadcast journalists of the Russian Federation. D does not dispute that D has copied about 500 articles that first appeared in Ps' publications or were distributed by Itar-Tass. The copied material, though extensive, was a small percentage of the total number of articles published in Kurier. D does not dispute how the copying occurred: articles from the Ps' publications, sometimes containing headlines, pictures, bylines, and graphics, in addition to text, were cut out, pasted on layout sheets, and sent to D's printer for photographic reproduction and printing in the pages of Kurier. D had not obtained permission from any of the Ps. The District Court issued a preliminary injunction. The Court noted that under Russian copyright law authors of newspaper articles retain the copyright in their articles unless there has been a contractual assignment to their employer or some specific provision of law provides that the author's rights vest in the employer. No claim of a contractual assignment was alleged. The judge ruled that the Russian version of the work-for-hire doctrine in Article 14(2), though exempting newspapers, applies to press agencies, like Itar-Tass (P). The District Court acknowledged that considerable scholarly debate existed in Russia as to the nature of a publisher's right 'in a work as a whole.' The newspaper could prevent infringing activity 'sufficient to interfere with the publisher's interest in the integrity of the work.' The Court's preliminary injunction opinion left it unclear whether at trial Ps could obtain damages only for copying the newspapers' creative efforts as a compiler, such as the selection and arrangement of articles, the creation of headlines, and the layout of text and graphics, or also for copying the text of individual articles. Trial ruling. The District Court resolved the dispute among the experts and recognized that newspapers acquire no rights to individual articles by virtue of Article 14 since the Russian version of the work-for-hire doctrine is inapplicable to newspapers. The court also reasoned that publishers have 'the real economic incentive to prevent wholesale unauthorized copying,' and that, in the absence of assignments of rights to individual articles, widespread copying would occur if publishers could not prevent D's infringements. The court awarded Ps $ 500,000 in actual damages. D appealed.