INS v. AP: Trademarks | Outside IP Counsel

The 1918 Supreme Court decision that treated fresh news as quasi property between competitors and founded the misappropriation branch of unfair competition.

International News Service v. Associated Press, 248 U.S. 215 (1918), argued in May and decided December 23, 1918, is the fountainhead of the misappropriation branch of unfair competition. Writing for the Court, Justice Mahlon Pitney confronted a wartime rivalry between two news agencies and produced a doctrine that every “hot news” and free-riding claim still traces back to: the idea that a competitor may not reap where it has not sown. Even after the case lost its formal authority as federal precedent, its central metaphor and its underlying intuition, that one business should not be free to appropriate the fruits of a rival’s investment, continue to shape unfair-competition law.

The decision is also a study in judicial disagreement. Justice Louis Brandeis and Justice Oliver Wendell Holmes each wrote separately, and their objections have proved almost as influential as Pitney’s majority. Brandeis warned against courts inventing new property rights in information; Holmes would have limited the remedy to a duty of attribution. More than a century later, that three-way split still frames how courts think about copying facts.

At a glance

Case: International News Service v. Associated Press, 248 U.S. 215 (1918)
Court: Supreme Court of the United States
Decided: December 23, 1918 (Pitney, J.), with Holmes, J. (joined by McKenna, J.) and Brandeis, J. dissenting
Holding: As between competitors, fresh news is quasi property; a rival’s systematic copying and resale of that news is unfair competition by misappropriation, enjoinable until its commercial value passes.
Status: No longer binding federal common law after Erie R.R. v. Tompkins (1938); the hot-news tort survives only as narrowed state law.

A wartime rivalry over the news

The dispute grew out of the First World War. The International News Service, owned by William Randolph Hearst, competed head to head with the Associated Press to report the war for American readers. The Allied powers, distrustful of Hearst’s coverage, barred INS from using Allied telegraph and cable lines, cutting off its ability to gather war news independently from Europe.

Denied its own pipeline, INS resorted to copying. It took AP’s news from two public sources: bulletins that AP posted on bulletin boards and the early East Coast editions of AP-member newspapers. INS then rewrote or retransmitted that content to its own subscriber papers. Because the country spans multiple time zones, INS could wire the copied East Coast reports to its West Coast papers in time to publish them simultaneously with, or even ahead of, the AP-affiliated papers in those Western markets. The head start that AP had earned through its own newsgathering evaporated.

Quasi property between competitors

AP could not rely on copyright. The Court accepted that the substance of the news, the facts and events of the day, is not copyrightable and, as against the general public, is publici juris, free for anyone to use once published. The novelty of the decision was that it did not stop there. Justice Pitney distinguished the rights of the parties against the public from their rights against each other.

As between two competitors, the Court held, the news AP had gathered at great expense was “stock in trade, to be gathered at the cost of enterprise, organization, skill, labor, and money,” and it must be treated as “quasi property, irrespective of the rights of either as against the public.” The wrong was not copying facts as such; it was a competitor taking the time-sensitive product of a rival’s investment and selling it in competition with the rival, before the rival could reap the reward of its own labor. Pitney framed the conduct in the language that has defined the doctrine ever since: INS was “endeavoring to reap where it has not sown,” “appropriating to itself the harvest of those who have sown.”

Crucially, the protection was limited in time. The injunction, the Court explained, “only postpones participation by complainant’s competitor in the processes of distribution and reproduction of news that it has not gathered, and only to the extent necessary to prevent that competitor from reaping the fruits of complainant’s efforts and expenditure.” Once the commercial value of the news had passed, so did the quasi-property right. The Court was not creating a perpetual monopoly in facts; it was protecting a narrow, fleeting head start.

Brandeis and Holmes in dissent

Justice Brandeis dissented alone, and his opinion has become a canonical statement of the opposing view. His premise was that copying is generally lawful. “The general rule of law is,” he wrote, “that the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—became, after voluntary communication to others, free as the air to common use.” Reaping where another has sown is not, standing alone, an actionable wrong. To carve out a new property right in ephemeral, published information, with all the line-drawing about duration, scope, and exceptions that such a right requires, was in his view a legislative task for Congress, not something courts were equipped to fashion responsibly.

Justice Holmes, joined by Justice McKenna, took a middle path. He rejected the majority’s broad property theory but thought INS had committed a narrower wrong closer to passing off: by publishing AP’s news as its own, INS implicitly misrepresented the source, risking public confusion about which agency had done the work. His proposed remedy matched that narrower wrong. Rather than enjoining use of the news outright, he would have required INS to attribute the source for a limited time, reasoning that “a suitable acknowledgment of the source is all that the plaintiff can require.”

The doctrine’s rise, fall, and afterlife

For twenty years INS stood as federal common law. Then Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), abolished the general federal common law on which the decision rested. Because INS had been decided as a matter of federal general common law in a diversity case, Erie pulled out its doctrinal foundation. The case no longer binds as federal precedent. Whatever survives of hot-news misappropriation lives on only as state law, and only in the states that choose to recognize it.

The most important modern gloss is National Basketball Association v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997). There the Second Circuit both narrowed the tort and subjected it to federal copyright preemption under 17 U.S.C. § 301, applying the “extra element” test. The court held that a hot-news claim survives preemption only where five elements are met: the plaintiff generates the information at a cost; the information is time-sensitive; the defendant’s use constitutes free-riding on the plaintiff’s efforts; the defendant is in direct competition with a product or service the plaintiff offers; and the ability of others to free-ride would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. The NBA’s claim against Motorola’s SportsTrax paging service failed that test.

The narrowing continued in Barclays Capital Inc. v. Theflyonthewall.com, Inc., 650 F.3d 876 (2d Cir. 2011), decided June 20, 2011. Treating NBA’s five-factor formulation as dicta rather than a binding test, the court held that the banks’ hot-news claim over their stock recommendations was preempted by federal copyright law. The claim fell within copyright’s general scope and lacked the extra elements of an INS-like claim: Fly was not free-riding on the banks’ newsgathering but was reporting, with attribution to the source, the fact that a firm had issued a recommendation. As the court put it, the firms are making the news and Fly is breaking it. After Barclays, the practical space for a hot-news claim, at least in the Second Circuit, is small.

Open questions

How far does state hot-news law reach today? With INS stripped of federal authority and Barclays showing how readily copyright preemption applies, it is unsettled which factual settings, if any, can still support a viable hot-news claim.
Does the misappropriation intuition migrate to new contexts? Data scraping, real-time financial feeds, and machine-readable content revive the free-riding concern in modern form, and courts continue to test whether the NBA elements can capture those disputes without colliding with copyright.
Where is the line between protectable investment and free public facts? Brandeis’s “free as the air” principle and Pitney’s “reap where it has not sown” principle still pull in opposite directions, and no bright line reconciles them.

Implications for creators and businesses

Facts are not owned, but timing can be protected. INS teaches that raw facts are free, yet the fleeting commercial value of being first can sometimes be defended against a direct competitor. Build your strategy around the head start, not around owning the information.
Plan for copyright preemption first. Any modern misappropriation claim must clear 17 U.S.C. § 301. Frame the theory around the NBA v. Motorola elements, especially direct competition and threatened incentive, or expect preemption.
Attribution is a weaker but real remedy. Holmes’s approach lives on wherever the real harm is misrepresented source. If free-riding is paired with implied false attribution, consider unfair-competition and false-designation theories alongside any hot-news claim.
Do not assume a nationwide rule. Because the doctrine now depends on state law, availability varies by jurisdiction. Check whether the forum recognizes hot-news misappropriation at all before relying on it.

Frequently asked questions

What did International News Service v. Associated Press actually hold? It held that fresh, time-sensitive news is quasi property as between competitors, even though it is not copyrightable and is free for the public to use. A rival that systematically copied Associated Press bulletins and resold them to compete with AP committed unfair competition by misappropriation, reaping where it had not sown. The protection lasts only until the news loses its commercial value.

Is INS v. AP still binding law today? Not as federal common law. Erie Railroad Co. v. Tompkins in 1938 abolished the general federal common law on which INS rested, so the case no longer binds as federal precedent. The hot-news misappropriation doctrine survives only as state law, and in a narrowed form. NBA v. Motorola in 1997 reduced it to a five-element test that also must survive federal copyright preemption.

What is the modern hot-news test after NBA v. Motorola? The Second Circuit’s five elements are: the plaintiff generates the information at a cost; the information is time-sensitive; the defendant’s use is free-riding on the plaintiff’s effort; the defendant is in direct competition with a product the plaintiff offers; and free-riding would so reduce the incentive to produce the information that its existence or quality would be substantially threatened. Barclays Capital v. Theflyonthewall.com later confirmed how easily copyright preemption defeats such claims.