Accordingly, the INS case no longer has precedential force although state courts are free to follow its reasoning if they so choose.

"[7] Because of the "economic value" of the news, a company can "therefore" have a limited property interest in it against a competitor but not the general public that attempted to take advantage of the information.

The tenuous value of "hot" news made Pitney narrow the period for which the proprietary right would apply: the doctrine "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.

The underlying principle is much the same as that which lies at the base of the equitable theory of consideration in the law of trusts—that he who has fairly paid the price should have the beneficial use of the property.

But in a court of equity, where the question is one of unfair competition, if that which AP has acquired fairly at substantial cost may be sold fairly at substantial profit, a competitor who is misappropriating it for the purpose of disposing of it to his own profit and to the disadvantage of AP cannot be heard to say that it is too fugitive or evanescent to be regarded as property.

Property depends upon exclusion by law from interference, and a person is not excluded from using any combination of words merely because some one has used it before, even if it took labor and genius to make it.

[12] Justice Brandeis objected, first, to the creation of a new property right even if it was called "quasi-property:" The knowledge for which protection is sought in the case at bar is not of a kind upon which the law has heretofore conferred the attributes of property; nor is the manner of its acquisition or use nor the purpose to which it is applied, such as has heretofore been recognized as entitling a plaintiff to relief.

"[13]Next, he denied that "reaping where another sowed" is an actionable tort: To appropriate and use for profit, knowledge and ideas produced by other men, without making compensation or even acknowledgment, may be inconsistent with a finer sense of propriety; but, with the exceptions indicated above [i.e., misrepresentation, physical or moral coercion, or by inducing breaches of contract], the law has heretofore sanctioned the practice.

The only possible reason for resort to a court of equity in a case like this is that the remedy which the law gives is inadequate.

Legislators might conclude that it was impossible to put an end to the obvious injustice involved in such appropriation of news, without opening the door to other evils, greater than that sought to be remedied.

Considerations such as these should lead us to decline to establish a new rule of law in the effort to redress a newly disclosed wrong, although the propriety of some remedy appears to be clear.

A leading copyright law scholar has commented: It has been suggested that the credence due the International News Service case today is minimal: that subsequent decisions have restricted its doctrine to the news context and that, in any event, it is but a derelict of the federal common law, untenable after Erie R.R.

The Second Circuit held that the "hot news" tort had been largely pre-empted by the 1976 Act in the NBA case.

In Metropolitan Opera Ass'n v. Wagner-Nichols Recorder Corp.,[30] the trial court described New York misappropriation law as standing for the "broader principle that property rights of commercial value are to be and will be protected from any form of commercial immorality"; that misappropriation law developed "to deal with business malpractices offensive to the ethics of [] society"; and that the doctrine is "broad and flexible.

Such concepts are virtually synonymous for wrongful copying and are in no meaningful fashion distinguishable from infringement of a copyright.

The broad misappropriation doctrine relied upon by the district court is, therefore, the equivalent of exclusive rights in copyright law.

In those cases, typically, the doctrine requiring "secondary meaning" is invoked to bar plaintiff's recovery.

The designs were not practicably copyrighted or patented and so "the plaintiff, which is put to much ingenuity and expense in fabricating them, finds itself without protection of any sort for its pains.

The Second Circuit, per Judge Learned Hand, denied relief: "In the absence of some recognized right at common law, or under the statutes—and the plaintiff claims neither—a man's property is limited to the chattels which embody his invention.

While it is of course true that law ordinarily speaks in general terms, there are cases where the occasion is at once the justification for, and the limit of, what is decided.

[35]Another illustrative case is the 1960 decision in American-Marietta Co. v. Krigsman,[36] involving a sponge-mop replacement (for installation after the original sponge becomes worn out).

The plaintiff did not attempt to protect functional features of the product, but only sought to prevent the copying of the nonfunctional arrangement of slots in the metal "presser plate" (hinged to the bottom of the mop) which is pressed against the sponge to squeeze water out.

The rule against nonfunctional copying, the Second Circuit held (in an opinion by Judge Learned Hand), is restricted to cases where the nonfunctional element has acquired a secondary meaning: It is indeed quite likely that buyers have assumed an identity of origin to the two mops from their general similarity; it is even possible-though we should suppose it very unlikely-that the identical form of the "slots" may have contributed to that assumption, but one who seeks to enjoin the reproduction of what is in the public domain must affirmatively show that the copied features were the reason for the confusion; it is not enough that perhaps it may have contributed [to it].

Though International News Service has never been expressly overruled, the Court was, in Sears and Compco, apparently rejecting its approach.

"[46] It is said that— Stiffel and Compco now have made it clear that the misappropriation theory as applied to cases involving article duplication is to be rejected.

By applying the doctrine of preemption of the field by congressional enactment of federal patent and copyright laws, the Supreme Court has .