Copyright

Itar-Tass v. Russian Kurier: Splitting Ownership and Infringement Across Borders

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.

June 16, 2025
Russian-language newspapers stacked on a city newsstand
A New York Russian-language weekly copied roughly 500 articles, forcing the Second Circuit to decide whose copyright law applied. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

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 — that 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 — became the dominant framework for cross-border copyright litigation in the United States.

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 found infringement, entered an injunction, and awarded damages. But it analyzed the case largely as if U.S. copyright law supplied every answer, including the threshold question of who owned the rights being infringed. That assumption was the crux of the appeal: under Russian law, the allocation of rights between a newspaper and the individual journalists who wrote its articles is not the same as under U.S. law, and the difference determined who could sue.

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 tells a court which substantive law to apply to protection, not which law decides who owns the work in the first place. As Judge Newman recognized, Berne is “not self-executing” in a way that resolves ownership conflicts, and its national-treatment command is “a choice-of-law rule that directs the application of the substantive law of the protecting country” only as to the scope of protection.

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 — 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, as a news agency, stood on different footing under the statute and retained a stronger claim. The court therefore affirmed liability where the plaintiff actually held the relevant rights, reversed where the district court had assumed ownership that Russian law did not confer, and remanded for the lower court to sort out the compilation claims and whether the journalists’ union could press the individual authors’ rights.

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 governs the scope of protection but does not 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? Berne’s national-treatment principle tells a court to apply the protecting country’s substantive law to the scope of protection, but it does not specify which country’s 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 court 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 wrongly assumed the newspapers owned those article rights, requiring reversal and remand.

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