In judge’s opinion, editorials are not creative

Tuesday, June 21, 2011

A federal judge in Nevada is dissing editorial writers.

In a lawsuit filed by Righthaven, a Las Vegas company that specializes in suing alleged copyright infringers on the web, Judge Philip Pro ruled that a 19-paragraph editorial from the Las Vegas Review Journal could be freely reposted in its entirety because the writing was not significantly creative.

In reaching that decision, Judge Pro concluded that Wayne Hoehn’s posting of the editorial as a comment on medjacksports.com was “fair use” of the material and protected under copyright law. Hoehn, whose user name was “Dogs That Bark,” was an avid poster, with 18,000 posts on the site, according to the lawsuit.

Righthaven’s legal tactics are highly controversial. The company contracts with media companies to file copyright lawsuits, but does not own the copyrights, a distinction that led Pro to dismiss the case.

But Pro did not stop there. He reviewed the key components of the fair-use defense and concluded that even though Hoehn posted the editorial in its entirety, he did it to foster discussion, did not make a profit and didn’t harm the potential market for the editorial.

Perhaps most surprising, though, was Pro’s conclusion that editorials are not as creative as fiction, song lyrics or even the design of Barbie dolls, and that they deserve less protection.

Pro even did the math: “Roughly eight of the 19 paragraphs of the work provide purely factual data, about five are purely creative opinions of the author and the rest are a mix of factual and creative elements.”

Oddly, the article that Pro describes as an editorial has all the markings of a column. It bears the byline of Sherman Frederick, former publisher of the Review Journal, and it’s not exactly a dry recapping of the facts:

Shifting public workers to a 401(k)-style retirement plan is “not particularly complicated once you tune out the mewling and puking from self-interested public-sector unions and acolyte politicians who enable defined-benefit plans to become a big honey pot from which one may dip at the expense of unborn taxpayers,” Frederick wrote.

No doubt the judge counted that as one of the five creative paragraphs, but all that mewling, puking and honey-potting is testimony that this is a vibrant, no-holds barred expression of opinion, not a dry restatement of public policy.

Judge Pro’s assessment of editorials as largely uncreative will no doubt unsettle editorial writers around the globe who come in each day, review the day’s news, meet with others to formulate a clear and distinctive position, and then strive to present often complex issues from a unique and compelling perspective.

In his book, Outrage, Passion and Uncommon Sense: How Editorial Writers Have Taken on and Help Shape the Great American Issues of the Past 450 Years (published by our colleagues at the Newseum), Michael Gartner wrote, “The editorial is the soul of the newspaper. Maybe the heart and the soul. And, on a good newspaper that knows and understands and loves its hometown, or its home country, the editorial is the heart and the soul of the town, or the nation, as well.”

Injured editorial-page egos aside, the case suggests that virtually anything written by any news organization that is primarily based in fact can be freely taken in its entirety and posted anywhere, as long as no one is trying to make a buck from it. That’s a mixed bag for those who care about a free press and free flow of information.

Posting an entire editorial on a website will mean more people will see the viewpoint and may well encourage discussion and exploration. That’s a good thing.

On the other hand, what becomes of a free press if virtually everything can be freely taken and used by others without compensation to the journalist or the company he works for?

That sounds like a good subject for an editorial.

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