The news print titans of the Wilkes Barre / Scranton area are battling it out over allegedly stolen obituaries. As I understand the facts, the Times Leader allegedly copied obituaries from a Scranton Times partner website and included the “copied” obituaries in their “Scranton Edition”.

Naturally, when text is copied, the immediate thought is copyright infringement. Copyright exists in original works of authorship fixed in any tangible medium of expression. Seems like it fits – what’s the problem? Facts are not copyrightable unless they are collections of facts containing some expressive content. The complaint by Scranton Times contained no counts for copyright. Rather, it contained counts for misappropriation, unfair competition, conversion, fraud, breach of contract, tortious interference with existing business relations, and unjust enrichment.

Since the complaint contained no federal counts, the case was filed with the Lackawanna County Court of Common Pleas. Wilkes Barre Publishing removed the case to the U.S. District Court for the Middle District of Pennsylvania. Asserting that no federal question of copyright existed, the Scranton Times moved to remand the case back to Lackawanna County Court. The court disagreed – essentially finding that since the copyright act preempted some of the claims, the court has subject matter jurisdiction over all claims.

So, the U.S. District Court for the Middle District of Pennsylvania will hear the case – which will likely never comprise a copyright claim (for a number of reasons) – but rather will comprise common law claims of conversion, fraud, and breach of contract. This presumes that the court very soon will dismiss the preempted counts. Here is the opinion.

As for the substance of the remaining claims (conversion, fraud, and breach of contract), I see problems which mainly concern whether Scranton Times is the proper party bringing the claim.

Count III Conversion: Who authored/owns the obits? The funeral homes? The Times Employees? Friends and family of the deceased? Are there assignments / work for hire agreements?

Count IV Fraud: What was the act of fraud, who is injured, how did the fraud cause the injury, what property / money was lost as a result of the fraud?

Count V Breach of Contract: Where is the agreement between the parties? The Scranton Times website contains no contractual provisions concerning use of the site in the terms of service. So, if it is claimed that breach of contract stems from a terms of use provision of a website, it should be a website owned by Scranton Times.

In parting, if this case boils down to copying facts (uncopyrightable material) from a website and republishing the same, a look into the body of law concerning electronic trespass to chattels.