Columbia Law Review Sidebar

Ever since its genesis in the Supreme Court’s famous decision in International News Service v. Associated Press,1 the “hot news” misappropriation doctrine has had to fight for its survival. First came Judge Learned Hand, who in a series of opinions, took the position that International News did not lay down a “general doctrine,” but was instead meant to be limited to the peculiarities of the newspaper industry.2 Next came the Court’s decision in Erie Railroad Co. v. Tompkins, where it abrogated all “federal general common law,” the very body of law within which the hot news misappropriation doctrine had been developed.3 The doctrine then appeared to have been resuscitated in 1997, when the Second Circuit breathed new life into it as a part of New York’s state common law in NBA v. Motorola, Inc.4 Finding that the doctrine had managed to “survive,” the court in that case sought to develop it into a viable cause of action, and parsed it into its constituent elements.5 Other courts seemed to then follow the Second Circuit’s lead on this.6