Itar-Tass v. Russian Kurier: Copyright

The Second Circuit held that the law of the country of origin governs copyright ownership while U.S. law governs infringement occurring on American soil.

Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82 (2d Cir. 1998), No. 95 Civ. 2144 below, decided August 27, 1998, is the foundational American decision on choice of law in international copyright disputes. Writing for the Second Circuit, Judge Jon O. Newman confronted a problem the Copyright Act never answers: when a work created and first published abroad is infringed in the United States, whose law decides who owns the copyright, and whose law decides whether infringement occurred? Newman’s answer became the dominant framework for cross-border copyright litigation in the United States: ownership is governed by the law of the work’s country of origin, while infringement is governed by U.S. law as the place of the wrong.

At a glance

Case: Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82 (2d Cir. 1998)
Decided: August 27, 1998; opinion by Judge Jon O. Newman (joined by Judges Feinberg and McLaughlin)
Issue: Choice of law for copyright ownership versus copyright infringement when a foreign work is copied in the United States
Holding: Ownership is determined by the law of the country with the closest relationship to the work (here, Russia); infringement and remedies are governed by U.S. law as the lex loci delicti
Disposition: Affirmed in part, reversed in part, and remanded

A New York weekly built on copied Russian journalism

Russian Kurier was a Russian-language weekly newspaper published in New York for the émigré community. Its content, the district court found, was substantially lifted from the work of major Russian news organizations: the Itar-Tass news agency and a group of Russian newspapers and the Russian journalists’ union. Over a span of issues, Russian Kurier reproduced roughly 500 articles (copying not only the underlying reporting but in many cases the exact text) with no authorization and no payment. The original works had been created and first published in Russia by Russian authors.

The plaintiffs sued in the Southern District of New York. The district court (Judge John G. Koeltl) found infringement, entered an injunction, and awarded damages. Notably, it did not treat U.S. law as supplying every answer: the parties all turned directly to Russian law, and Judge Koeltl resolved ownership under the Russian statute, crediting the plaintiffs’ expert that the newspapers held rights in the individual articles. The Second Circuit agreed that Russian law governed ownership but read that law differently, and the difference determined who could sue. The appeal thus turned less on which country’s law applied than on what Russian law actually said.

Why the Copyright Act needed a conflicts rule

American courts instinctively reach for the Copyright Act, but the Act is silent on choice of law. The Berne Convention, to which both the United States and the Russian Federation belong, supplies a principle of national treatment (each member country must extend to foreign works the same protection it gives its own) but national treatment does not itself select a governing law. Judge Newman was explicit on this point, agreeing with amicus Professor William Patry that “the principle of national treatment is really not a conflicts rule at all; it does not direct application of the law of any country.” National treatment, the court explained, “simply assures that if the law of the country of infringement applies to the scope of substantive copyright protection, that law will be applied uniformly to foreign and domestic authors.” It is a nondiscrimination guarantee, not an answer to the ownership question, so the conflicts gap remained for the court to fill.

To fill the gap, the court turned to federal common law and the Restatement (Second) of Conflict of Laws. The key move was to decompose the case into two distinct legal questions, each with its own governing law.

The bifurcated framework: ownership versus infringement

Ownership. Copyright ownership, Judge Newman held, is an issue best resolved by the law of the country with “the most significant relationship” to the work and the parties. That is the approach the Restatement prescribes for interests in property. For a work created by Russian nationals and first published in Russia, that country is Russia. The court therefore looked to Russian copyright law to determine the threshold question of who held the rights at issue. This is the holding’s enduring contribution: ownership travels with the work’s origin, not with the forum.

Infringement. The act of infringement, by contrast, is a tort, and the traditional conflicts rule for torts points to the lex loci delicti: the law of the place where the wrong occurred. Because Russian Kurier copied and distributed the articles in the United States, U.S. copyright law governed whether those acts constituted infringement and what remedies were available. The forum’s substantive infringement law applied not by default but because the infringing conduct happened on American soil.

Russian law on newspapers versus authors

Applying Russian law to ownership changed the outcome. Under the Russian copyright statute, the court determined, a newspaper or news organization holds a copyright in the publication as a compilation (the selection and arrangement of materials) but does not automatically own the copyright in the text of the individual articles. Those rights remain with the individual journalists who wrote them, absent a contractual assignment. The plaintiffs had not established such assignments.

This had a decisive procedural consequence. The newspaper plaintiffs could assert a compilation copyright, but they could not, on this record, sue for infringement of the article text as if they owned it. That interest belonged to the individual authors. Itar-Tass stood on different footing: Article 14(4)‘s exclusion of work-for-hire treatment ran to newspapers, not to a news agency employing its own reporters, so Itar-Tass retained rights in the article text itself. The court therefore affirmed the judgment to the extent it granted relief to Itar-Tass, reversed to the extent it granted relief to the other plaintiffs, and remanded for the lower court to consider the compilation claims and whether some form of injunctive relief could be framed for the author-members the journalists’ union was willing to identify.

Open questions

How should courts identify the “country of origin” for works created by collaborators of different nationalities, or works simultaneously published in multiple countries? Itar-Tass answered an easy case on its facts and left the hard ones open.
Does the bifurcated approach survive when ownership and infringement are deeply intertwined, for example where a work-made-for-hire determination both assigns ownership and defines the scope of the right?
How do courts handle a foreign ownership law that conflicts with a fundamental U.S. policy? The Restatement’s “most significant relationship” test invites a public-policy escape hatch the court did not need to use here.

Implications

Ownership is a foreign-law question. Litigants asserting rights in foreign-origin works must plead and prove the relevant foreign ownership law; assuming U.S. work-made-for-hire or assignment rules can be fatal.
Infringement remains a forum-law question. Once ownership is settled under foreign law, U.S. substantive law governs whether domestic conduct infringes and what damages follow.
Standing turns on the foreign allocation of rights. As in Itar-Tass, foreign law may vest article-level rights in individual authors rather than the publisher, dictating who is the proper plaintiff.
Berne is not a complete answer. National treatment is a nondiscrimination guarantee, not a conflicts rule; it does not select any country’s law or resolve who owns the work, leaving conflicts analysis to do the decisive work.

Frequently asked questions

What is the central holding of Itar-Tass v. Russian Kurier? The Second Circuit held that copyright ownership is governed by the law of the country with the most significant relationship to the work (typically its country of origin) while the question of infringement is governed by the law of the place where the allegedly infringing acts occurred, which here was the United States.

Why didn’t the Berne Convention decide the case? The Second Circuit said national treatment is not really a conflicts rule at all and does not direct application of the law of any country. It is a nondiscrimination guarantee: if the law of the country of infringement governs the scope of protection, it must apply equally to foreign and domestic authors. Because Berne does not specify whose law decides who owns a work, the court filled that gap with U.S. federal common law and the Restatement (Second) of Conflict of Laws.

Why did some newspaper plaintiffs lose ground on appeal? Under Russian copyright law as the Second Circuit construed it, newspapers held a compilation copyright in the publication as a whole but not the copyright in the text of individual articles, which belonged to the journalists absent assignment. The district court had applied Russian law too but read it differently, crediting the plaintiffs’ expert; the Second Circuit found the defendants’ experts more persuasive and reversed as to those plaintiffs.