Associated Press v. All Headline News Corp. et al, 08 cv 00323 PKC, 2009 WL 382690 (S.D.N.Y. Feb. 17, 2009).
I finally have had the chance to work through Judge Caste’s order from this past Tuesday in Associated Press v. All Headline News. The facts in this case are relatively straightforward. AP alleged that All Headline News, a Florida corporation, collected their stories from the internet, and either rewrote or copied them in full. AP brought suit for copyright infringement, and violations of the DMCA (17 U.S.C. § 1202), Lanham Act, and New York common law.
All Headline News filed a motion to dismiss the New York state misappropriation claim on the grounds that the Court should apply Florida unfair competition law, which they alleged doesn’t recognize misappropriation. AP argued the reverse: Florida state unfair competition law recognizes misappropriation and, regardless, the Court should apply New York state law.
Judge Caste applied New York State choice of law rules, which establish a two step evaluation:
- Determine whether there is an actual conflict between the laws of the jurisdictions involved; and if there is,
- The law of the jurisdiction having the greatest interest in the litigation should be applied.
The Court punted on the question of whether Florida unfair competition recognizes misappropriation and assumed conflict, finding that neither party had “persuasively demonstrated” that Florida would or wouldn’t recognize the claim.
Moving on to which jurisdiction had the “greatest interest,” the Court looked to NY tort law that states that when a defendant’s allegedly tortuous conduct arises in one jurisdiction and the injury occurs in another, the location of the tort is the place “where the plaintiff suffered the injury sued upon.” Thus, because AP was headquartered in NY and suffered injury in NY, the Court found that NY law should apply.
The Court denied the motion to dismiss finding that the Second Circuit has “unambiguously” held that misappropriation, brought under NY unfair competition law, is not preempted by the Copyright Act.
The gem of a choice of law issue that wasn’t addressed
So far so good, right? I’m not certain. This wouldn’t affect the outcome, but it appears to me the wrong choice of law issue was briefed.
The choice of law issue at play isn’t whether a state recognizes misappropriation, but whether the federal courts in a particular jurisdiction have found that misappropriation is preempted. Presumably, every state’s unfair competition tort would recognize misappropriation. If Florida doesn’t recognize misappropriation, it’s not because their tort of unfair competition doesn’t reach the claim. Instead, it would be due to the fact that the Eleventh Circuit has ruled that the claim is preempted by copyright law. Whether a state has a tort for misappropriation is really a question of federal law, not state law.
Would the Second Circuit be forced to apply the Eleventh Circuit’s interpretation of federal law if it was different? I would assume that the answer is no. It would appear to me that, regardless of whether the Court applied Florida or New York state unfair competition law, the question of whether a misappropriation claim is preempted, should fall on the Second Circuit’s interpretation of the Copyright Act.
These types of fed courts issues aren’t my strong suit. (Which can be seen in my analysis of Nicholson v. Shafe. After sleeping on it, I think there’s a lot more to the case than I first thought.) If anyone has comments on this issue, I’d love to hear them.
Attribution as trademark infringement
The AP brought a couple of creative claims in their complaint, one of which may be of particular interest. The AP claimed that All Headline News infringed their trademark, under section 32 of the Lanham Act, by attributing them when All Headline directly copied parts of a story. (E.g., “[a]ccording the Associated Press.”) AP alleged that by doing this, All Headline News mislead readers into believing that their stories were issued by AP. Judge Caste dismissed the claim.
Documents
Recent scholarship from the 
