Database protection before the 1976 Copyright Act Edit

In the terminology of copyright law, a database is a "compilation" — "a work formed by the collection and assembling of preexisting materials or of data. . . ."[1] Compilations constitute one of the oldest forms of authorship protected under U.S. law, dating back to the 18th century.[2] Compilations were protected as "books" under the first federal copyright statute.[3]

Over the course of the 19th century, two rationales developed for protecting compilations under copyright. One rationale, which has come to be known as the "sweat of the brow" doctrine, focused on the effort and investment of the compiler. The other focused on the compiler's judgment and creativity in the selection and arrangement of the materials comprising the compilation.

The earliest compilation cases that discussed the basis for copyright protection identified the compiler's effort — "his own expense, or skill, or labor, or money"[4] — as the critical contribution justifying protection.[5] These cases, involving works ranging from law reports and legal encyclopedias to compilations of war records, emphasized both the compilers’ effort and the copiers’ “unfair use of the copyrighted work, in order to save themselves the time and labor of original investigation.[6] Contemporary treatises echoed this approach.[7].

During the late 19th century courts began to articulate a basis for copyright protection generally that differed from the labor/investment approach taken in cases involving compilations. In a series of decisions from 1879 to 1903, the Supreme Court held that the “writings” that could be protected under the copyright clause of the Constitution included “only such as are original,[8] and indicated that creativity is a component of originality.[9] Under this approach, copyright was described as protecting writings that are “the fruits of intellectual labor,"[10] “productions of intellect or genius"[11] or “original intellectual conceptions of the author."[12]

The evolving doctrine of originality was applied by some courts in compilation cases, particularly cases involving compilations of textual materials such as law books. These cases identified the author’s critical contribution justifying protection as his judgment in selecting and arranging materials.[13] This approach coexisted with, rather than supplanted, sweat of the brow cases. Sweat of the brow was applied to cases involving purely factual compilations, such as catalogs and directories. Sometimes the two approaches appeared to be melded together in a single case, with the court focusing on the “labor” and “skill” contributed by the author.[14] With very few exceptions, one or the other approach was drawn upon by the court to support the conclusion that a particular compilation was protectable, rather than to deny protection.

On the question of the scope of protection afforded to compilations, there was somewhat greater uniformity in the case law. In compilation cases, regardless of the theoretical framework adopted to justify copyright protection, once the plaintiff’s work was determined to be copyrightable, courts generally held a defendant to have infringed whenever material was copied from the plaintiff’s work. Typically there was no inquiry as to whether the particular material copied was protected by the plaintiff’s copyright. To avoid infringement, a second-comer was required to go to the original sources and compile the material independently, without reference to the earlier work.[15] A common thread running through many of these decisions was the court’s desire to prevent the copier from competing unfairly with the compiler by appropriating the fruits of the compiler’s efforts or creativity. In this sense, courts treated copyright protection for compilations much like a branch of unfair competition law.

1976 Copyright Act Edit

The Copyright Act of 1976 included a definition of “compilation” which, for the first time, drew an express statutory connection between a compilation and an “original work of authorship”:

A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.[16]

The definition compels a court to examine the nature of a compilation’s “selection, coordination, or arrangement” in order to determine whether the compilation is an "original work of authorship” protectable under section 102(a). In other words, the same originality requirement applies to compilations as to all other works.

A separate section clarified the scope of protection for a compilation:

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.[17]

The 1976 Act also codified the idea/expression dichotomy that had been developed by the courts.[18] Section 102(b) provides: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” This language has been interpreted to exclude protection for facts as well.[19]

Cases under the 1976 Act were divided about the continuing viability of the sweat of the brow doctrine. Some circuits continued to apply sweat of the brow.[20] Other circuits rejected sweat of the brow, requiring instead that compilations contain sufficient creativity in their “selection, coordination or arrangement” to render them “original works of authorship” entitled to copyright protection.[21] On both sides of this doctrinal divide, however, there was a consistent line of cases upholding the copyrightability of directories.[22] The stage was thus set for Supreme Court consideration of the issue when it granted certiorari in a Tenth Circuit case routinely applying the sweat of the brow doctrine to protect a white pages telephone directory against wholesale copying.[23]

The Feist decision Edit

The U.S. Supreme Court sounded the death knell for the sweat of the brow doctrine in Feist Publications v. Rural Telephone Service Co.[24] In finding a white pages telephone directory to be uncopyrightable, the Court held that the sole basis for protection under U.S. copyright law is creative originality.

The plaintiff, Rural Telephone Service Co. (Rural), was a local telephone company that produced a white-pages telephone directory covering its service area. Feist Publications (Feist), the defendant, published a directory covering multiple service areas. After Feist sought, and was refused, a license to the listings in Rural’s directory, it copied the listings without authorization. The district court found Feist liable for infringement, and the Tenth Circuit affirmed in an unpublished memorandum decision. The Supreme Court granted certiorari, presumably to resolve the split in the circuits.[25]

The Court reviewed the history of compilation copyright and the development of the sweat of the brow doctrine. It repudiated the doctrine in unequivocal terms. Originality, the Court held, has two distinct components: “independent creation plus a modicum of creativity."[26] The Court emphasized that the creativity component is extremely modest.

To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, "no matter how crude, humble or obvious" it might be."[27]

The Court reviewed the definition of “compilation” in the 1976 Copyright Act and discerned an intent to overrule the sweat of the brow doctrine by legislation. By defining a compilation as “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship,[28] the Court explained, Congress specifically required originality in order to protect compilations, and described the elements of authorship that are protected in a compilation: the selection, coordination and arrangement of the underlying material.[29]

The Court did not limit its holding to statutory interpretation, however. It held that “[o]riginality is a constitutional requirement."[30] Citing 19th century case law, the Court derived this requirement from the constitutional terms “Writings” and “Authors” in the grant of authority to Congress to enact copyright laws.[31]

On the facts before it, the Court held that Rural’s white pages telephone directory was uncopyrightable.

The selection, coordination, and arrangement of Rural’s white pages do not satisfy the minimum constitutional standards for copyright protection. . . . Rural’s white pages are entirely typical. . . . In preparing its white pages, Rural simply takes the data provided by its subscribers and lists it alphabetically by surname. The end product is a garden-variety white pages directory, devoid of even the slightest trace of creativity.[32]

Rural’s selection of listings was “obvious,” and its arrangement was “not only unoriginal, it [was] practically inevitable."[33] The Court acknowledged that the telephone white pages were an extreme case, falling in “a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent."[34] By contrast, it stated, “the vast majority of compilations will pass” the originality test.[35]

Although the holding of Feist relates to copyrightability, the Court acknowledged the impact that its reasoning would have on the scope of copyright protection for compilations. “[C]opyright in a factual compilation is thin. Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another’s publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement."[36] This represented a complete reversal of the earlier judicial approach in several circuits that held any substantial taking from a copyrightable compilation to be an infringement, and required second-comers independently to collect material for a competing compilation.

Subsequent judicial interpretations of Feist Edit

Feist’s teachings have proved important for lower courts both in determining copyrightability and in assessing scope of protection.

Copyrightability Edit

Subsequent cases have confirmed that the category of works lacking the requisite level of creativity is small. A series of three Second Circuit decisions rendered shortly after Feist is illustrative.

In Key Publications, Inc. v. Chinatown Today Publishing Enterprises Inc.,[37] the Second Circuit sustained the copyrightability of the yellow pages of a telephone directory for New York’s Chinese-American community. The court found that the selection of entries in Key’s directory was original.[38] In addition, the arrangement of the directory into categories (e.g., Accountants, Bridal Shops, Shoe Stores, Bean Curd & Bean Sprout Shops) was, when “viewed in the aggregate,” original, because it “entailed the de minimis thought needed to withstand the originality requirement."[39]

In Kregos v. Associated Press,[40] the court found the plaintiff’s “pitching form” — a form comprised of nine statistics about a pitcher’s performance — copyrightable. Kregos’ selection of those nine statistics from the universe of statistics that can be used to describe a pitcher’s performance could be original, according to the court. Reversing the district court’s grant of summary judgment to the defendant, the Second Circuit held that “[i]t cannot be said [as a matter of law that] Kregos has failed to display enough selectivity to satisfy the requirements of originality."[41]

By contrast, in Victor Lalli Enterprises, Inc. v. Big Red Apple, Inc.,[42] the Second Circuit found insufficient creativity to support a copyright. The compilation at issue in Lalli was comprised of “lucky numbers” used in gambling, arranged in a grid with months along the vertical axis and days of the month along the horizontal axis. The numbers were computed according to a formula that was standard in that industry. The court found no originality in either the selection or arrangement of the data: “Lalli exercises neither selectivity in what he reports nor creativity in how he reports it."[43] The compilation was therefore held uncopyrightable.[44]

Among works that are particularly vulnerable to a finding of uncopyrightability are comprehensive factual databases covering an entire universe of information, where the element of “selection” is lacking and the “arrangement” is obvious.[45] The very comprehensiveness and ease of use of such a database may account both for its commercial value and its lack of protection under copyright.

Scope of protection Edit

The Feist statement that “the copyright in a factual compilation is thin” has been borne out in case law subsequent to the Feist decision. In both Key Publications and Kregos, the Second Circuit’s holding that the work was sufficiently original to be copyrightable was followed by a finding of noninfringement.[46] Although the court had stated in Key Publications that, while compilation copyright is thin, “we do not believe it is anorexic,"[47] the scope of protection adopted in Kregos was quite narrow. There, the Second Circuit held that the defendant’s compilation would not infringe if it “differs in more than a trivial degree” from the plaintiff’s work, essentially creating a “virtual identity” standard for infringement.[48] The Ninth Circuit had also applied a virtual identity standard in compilation cases predating the Feist decision.[49] Without necessarily articulating a virtual identity standard, a number of district courts have adopted a similarly narrow scope of protection.[50]

Other courts have accorded even thinner protection to compilations in which copyright was conceded, failing to discern originality in any particular acts of selection or arrangement. In a pair of post-Feist cases, the Eleventh Circuit found that copying of significant portions of copyrightable compilations was not infringing because the material copied did not rise to the level of creative authorship.

In Bellsouth Advertising & Publishing Corp. v. Donnelley Information Publishing, Inc. (“BAPCO”),[51] the Eleventh Circuit held that the defendant’s entry into a computer of all of the names, addresses and telephone numbers of advertisers in the plaintiff’s yellow pages telephone directory, together with business type and type of advertisement, did not infringe.

Since the parties had stipulated to the copyrightability of the plaintiff’s directory, and agreed that “the only elements of a work entitled to compilation copyright protection are the selection, arrangement or coordination as they appear in the work as a whole,"[52] the court focused on the elements of selection, coordination and arrangement that the plaintiff claimed were infringed, and found each to be either unprotectable or not copied. For example, the plaintiff claimed (and the district court held) that it selected the listings by determining the geographic scope of the directory, establishing a closing date for changes, and limiting listings to subscribers to its business telephone service, as well as through a variety of marketing techniques. The court found that these elements did not meet the level of creativity required by Feist.[53] Moreover, the court did not consider these elements to be “acts of authorship, but techniques for the discovery of facts . . . . The protection of copyright must inhere in a creatively original selection of facts to be reported and not in the creative means used to discover those facts."[54]

The court also found the arrangement of the directory “in an alphabetized list of business types, with individual businesses listed in alphabetical order under the applicable headings” to be unoriginal, and to have merged with the idea of a business directory.[55] As to the headings used in the plaintiff’s directory, the court did not rule on protectability, finding as a factual matter that there was insufficient evidence to establish that defendant had copied them.[56]

The Eleventh Circuit reached a similar result in Warren Publishing, Inc. v. Microdos Data Corp.[57] As in BAPCO, the copyrightability of Warren’s compilation — a hard copy directory of cable television systems and their owners — was conceded and therefore not an issue before the court.[58] Microdos, the defendant, marketed an electronic database of information on the cable television industry. Warren claimed infringement as to the communities chosen and the designation of certain of them as “lead communities” in circumstances where a cable operator owns systems in multiple communities.[59]

The district court had found that “the selection of . . . communities was creative and protectible because Warren uses a unique system in selecting the communities that will be represented in the Factbook."[60] The Eleventh Circuit held that, to the extent that the district court was correct in characterizing Warren’s claim as relating to a system of selecting communities, section 102(b) of the Copyright Act would bar protection.[61] Even if that characterization were incorrect, the court held that Warren’s selection was not original and thus unprotectable. According to the Eleventh Circuit, Warren “did not exercise any creativity or judgment in 'selecting’ cable systems to include in its Factbook, but rather included the entire relevant universe known to it."[62] As to the selection of principal communities, the court held that since Warren made this determination by contacting cable operators and asking them, “the selection is not its own, but rather that of the cable operators."[63] Consequently, the court found no infringement and vacated the district court’s injunction.

BAPCO and Warren appear to equate a compiler’s criteria for selection and organization, respectively, with ideas — which are by definition unprotectable. Taken together, these two cases represent a different approach from the doctrine of “soft facts” or “soft ideas” articulated by the Second Circuit in CCC Information Servs., Inc. v. Maclean Hunter Market Reports, Inc.[64] In CCC, the Second Circuit posited that there are facts or ideas that are “infused with the author’s taste or opinion,” as opposed to explaining phenomena or furnishing solutions to problems."[65] The court recognized that using the merger doctrine[66] to rule out protection for the compilation itself by characterizing as “ideas” the criteria used to select or arrange its contents would render copyright for compilations “illusory."[67] This is because “virtually any independent creation of the compiler as to selection, coordination, or arrangement will be designed to add to the usefulness or desirability of his compendium for targeted groups of potential customers, and will represent an idea."[68] The approach taken by the court was, “[i]n cases of wholesale takings of compilations, a selective application of the merger doctrine, withholding its application as to soft ideas infused with taste and opinion. . . ."[69]

Conclusion Edit

In summary, very few of the post-Feist compilation cases have held entire works to be uncopyrightable. In fact, copyrightability of the entire work is seldom even contested. Disputes tend to focus instead on the scope of protection. Consistent with Feist’s pronouncement that copyright affords compilations only “thin” protection, most of the post-Feist appellate cases have found wholesale takings from copyrightable compilations to be non-infringing. This trend is carrying through to district courts as well.

References Edit

  1. 17 U.S.C. §101.
  2. See, e.g., Kilty v. Green, 4 H. & McH. 345 (Gen. Ct. Md. 1799) (denying relief in a case involving a compilation of statutes).
  3. Copyright Act of May 31, 1790, ch. 15, 1 Stat. 124 (protecting books, maps and charts).
  4. Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845).
  5. See, e.g., Dun v. Lumbermen's Credit Ass, 144 F. 83 (7th Cir. 1906), aff;d, 209 U.S. 20 (1908); West Publishing Co. v. Lawyers' Co-operative Publishing Co., 79 F. 756 (2d Cir. 1897); West Publishing Co. v. Edward Thompson Co., 169 F. 833 (C.C.E.D.N.Y. 1909), mod'd, 176 F. 833 (2d Cir. 1910); Egbert v. Greenberg, 100 F. 447 (C.C.N.D. Cal. 1900); Ladd v. Oxnard, 75 F. 703 (C.C.D. Mass. 1896); American Trotting Register Ass'n v. Gocher, 70 F. 237 (C.C.N.D. Ohio 1895); Hanson v. Jaccard Jewelry Co., 32 F. 202 (C.C.E.D. Mo. 1887); Chapman v. Ferry, 18 F. 539 (C.C.D. Oreg. 1883); Banks v. McDivitt, 2 F. Cas. 759, 13 Blatchf. 163 (C.C.S.D.N.Y. 1875); Webb v. Powers, 29 F. Cas. 511 (C.C.D. Mass. 1847); Emerson v. Davies, 8 F. Cas. 615 (C.C.D. Mass. 1845); Gray v. Russell, 10 F. Cas. 1035 (C.C.D. Mass. 1839).
  6. West Publishing Co., 79 F. at 772.
  7. See, e.g., Eaton S. Drone, A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States 386 (1879); George T. Curtis, Treatise on the Law of Copyright 174 (1847).
  8. In re The Trademark Cases, 100 U.S. 82, 94 (1879).
  9. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903); Higgins v. Keuffel, 140 U.S. 428 (1891); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884); In re The Trademark Cases, 100 U.S. at 94. See also National Tel. News Co. v. Western Union Tel. Co., 119 F. 294 (7th Cir. 1902); Boucicault v. Fox, 3 F. Cas. 977, 5 Blatchf. 87 (C.C.S.D.N.Y. 1862); Reed v. Carusi, 20 F. Cas. 431 (C.C.D. Md. 1845).
  10. In re The Trademark Cases, 100 U.S. at 94. See also Higgins, 140 U.S. at 431.
  11. American Tobacco Co. v. Werckmeister, 207 U.S. 284, 291 (1907).
  12. Burrow-Giles, 111 U.S. at 59-60. See also William W. Ellsworth, A Copy-Right Manual 10 (1862) (stating “mere mechanical labor will not suffice; intellectual labor or invention is indispensable”).
  13. See, e.g., Edward Thompson Co. v. American Lawbook Co., 122 F. 922, 924 (2d Cir. 1903) (focusing on “skill and taste of the [plaintiff] in selecting or arranging” materials); Lawrence v. Dana, 15 F. Cas. 26, 28, 4 Cliff. 1 (C.C.D. Mass. 1869) (“copyright may justly be claimed by an author of a book who has taken existing materials from sources common to all writers, and arranged and combined them in a new form, and given them an application unknown before, for the reason that, in so doing, he has exercised skill and discretion in making the selections, arrangement, and combination . . . .”).
  14. See, e.g., Hanson v. Jaccard Jewelry Co., 32 F. 202, 203 (C.C.E.D. Mo. 1887).
  15. See, e.g., Williams v. Smythe, 110 F. 961 (C.C.M.D. Pa. 1901); List Publishing Co. v. Keller, 30 F. 772 (C.C.S.D.N.Y. 1887); Banks, 2 F. Cas. 759.
  16. 17 U.S.C. §101. See also id. (definition of “collective work.”).
  17. 17 U.S.C. §103(b).
  18. See Baker v. Selden, 101 U.S. 99 (1879).
  19. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985); Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).
  20. See, e.g., Illinois Bell Tel. Co. v. Haines & Co., 683 F. Supp. 1204 (N.D. Ill. 1988), aff’d, 905 F.2d 1081 (7th Cir. 1990), vacated and remanded, 499 U.S. 944 (1991); Rural Tel Serv. Co. v. Feist Publications, Inc., 916 F.2d 718 (10th Cir. 1990).
  21. See, e.g., Financial Info., Inc. v. Moody’s Investors Serv., Inc., 808 F.2d 204 (2d Cir. 1986), cert. denied, 484 U.S. 820 (1987); Eckes v. Card Prices Update, 736 F.2d 859 (2d Cir. 1984); Worth v. Selchow & Righter Co., 827 F.2d 569, 572-73 (9th Cir. 1987).
  22. See, e.g., Hutchinson Tel. Co. v. Fronteer Directory Co. of Minnesota, 770 F.2d 128 (8th Cir. 1985); Southern Bell Tel. & Tel. Co. v. Associated Tel. Directory Publishers, 756 F.2d 801 (11th Cir. 1985).
  23. Feist Publications, Inc. v. Rural Tel. Serv. Co., 916 F.2d 718 (10th Cir. 1990), cert. granted, 498 U.S. 808 (1990).
  24. 499 U.S. 340 (1991).
  25. 498 U.S. 808 (1990).
  26. Id. at 346.
  27. Id. at 345 (citation omitted).
  28. 17 U.S.C. §101.
  29. Feist, 499 U.S. at 356-58.
  30. Id. at 346.
  31. Id. (quoting U.S. Const., art. I, §8, cl. 8). The Court hinted, however, that other forms of protection may not be subject to the same constitutional restriction. See id. at 354 (“Protection for the fruits of such research . . . may in certain circumstances be available under a theory of unfair competition”) (quoting David Nimmer & Melville B. Nimmer, Nimmer on Copyright §3.04 (1990)).
  32. Id. at 362.
  33. Id. at 362, 363.
  34. Id. at 359.
  35. Id.
  36. Id. at 349. This is consistent with the Court’s statement that “[f]acts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted.” Id. at 350.
  37. 945 F.2d 509 (2d Cir. 1991).
  38. Id. at 513.
  39. Id. at 514.
  40. 937 F.2d 700 (2d Cir. 1991).
  41. Id. at 704.
  42. 936 F.2d 671 (2d Cir. 1991).
  43. Id. at 673.
  44. The Sixth Circuit relied on Victor Lalli and other cases in concluding that a catalogue of replacement belts “organized in a manner unknown to the industry prior to its publication” was insufficiently creative to qualify for copyright protection. J. Thomas Distribs., Inc. v. Greenline Distribs., Inc., 41 U.S.P.Q.2d (BNA) 1382 (6th Cir. 1986). There have been a number of recent district court cases addressing the issue of copyrightability as well. See, e.g., Matthew Bender & Co. v. West Publishing Co., 1997 U.S. Dist. LEXIS 6915 (S.D.N.Y. May 19, 1997) (ruling without written opinion that West’s pagination of reported cases was not copyrightable, and holding that West’s editorial revision of cases themselves entails no copyrightable authorship); Oasis Publishing Co. v. West Publishing Co., 924 F. Supp. 918 (D. Minn. 1996) (upholding copyrightability of arrangement of cases in West’s Southern Reporter (relying on West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987)) and finding that defendant’s use of star pagination to West page numbers was a copyright infringement); National Council on Compensation Ins., Inc. v. Insurance Data Resources, Inc., 40 U.S.P.Q.2d (BNA) 1362 (S.D. Fla. 1996) (rejecting copyrightability of manual comprised of job codes and formulas used by insurance ratings organization to gather workers’ compensation experience data).
  45. Cf. Warren Publishing, Inc. v. Microdos Data Corp., 115 F.3d 1509 (11th Cir. 1997) (holding plaintiff “did not exercise any creativity or judgment in 'selecting’ cable systems to include in its Factbook, but rather included the entire relevant universe known to it”). In spite of the fact that the copyrightability of the plaintiff’s compilation was conceded by the defendant (and therefore not an issue on appeal), the court did not find any element of the plaintiff’s work that it examined to be protectable. From a plaintiff’s standpoint, this has much the same effect as a finding of uncopyrightability, since the only conduct that arguably can be said to infringe is verbatim duplication of the entire work. See also American Dental Ass'n v. Delta Dental Plans Ass'n, 39 U.S.P.Q.2d (BNA) 1714 (N.D. Ill. 1996) (selecting dental procedures in “Code on Dental Procedures and Nomenclature” was intended to be comprehensive, and therefore did not exhibit minimal originality to be copyrightable; arrangement of procedures under various headings and subheadings was likewise unoriginal and unprotectible).
  46. The Second Circuit found that the defendant’s compilation did not infringe in Key Publications, Inc. v. Chinatown Today Pub. Enters. Inc., 945 F.2d 509, 515-16 (2d Cir. 1991). In Kregos v. Associated Press, the district court reached that conclusion on remand. 795 F. Supp. 1325 (S.D.N.Y. 1992), aff’d, 3 F.3d 656 (2d Cir. 1993).
  47. Key Publications, 945 F.2d at 514.
  48. Kregos, 937 F.2d 700, 710; see also Harbor Software, Inc. v. Applied Sys., Inc., 936 F. Supp. 167, 170-71 (S.D.N.Y. 1996) (applying “trivial difference test” to screen displays and reports generated by a computer program, which the court had previously determined to be protectable as a compilations).
  49. Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 205 (9th Cir. 1989) (treating printed organizer as compilation of uncopyrightable elements and employing virtual identity standard for infringement).
  50. See, e.g., Alexandria Drafting Co. v. Amsterdam, 1997 U.S. Dist. LEXIS 8197 (E.D. Pa. June 4, 1997) (treating plaintiff’s maps as compilations of “pictorial facts representing an objective reality,” and holding that copying of features such as positions of symbols and street alignments did not constitute infringement); Martindale-Hubbell, Inc. v. Dunhill Int’l List Co., No. 88-6767-CIV-ROETTGER (S.D. Fla. Dec. 30, 1994) (unpublished) (holding that wholesale copying of names, addresses, and other items of information from plaintiff’s directory was not infringement). Cf. Nester’s Map & Guide Corp. v. Hagstrom Map Co., 796 F. Supp. 729, 734 (E.D.N.Y. 1992) (stating that “Key Publications does not stand for the proposition that copying copyrighted materials is proper so long as the copying, though significant, is done in moderation,” and finding infringement of plaintiff’s compilation of New York City cross streets and building numbers).
  51. 999 F.2d 1436 (11th Cir. 1993) (en banc).
  52. Id. at 1438.
  53. Id. at 1441.
  54. Id. (emphasis in original).
  55. Id. at 1442.
  56. Id. at 1444. Relying on BAPCO, a Florida district court reached the same result in a case involving the Martindale-Hubbell Law Directory. Martindale-Hubbell, Inc. v. Dunhill Int’l List Co., No. 88-6767- DIV-ROETTGER (S.D. Fla. Dec. 30, 1994) (unpublished). The defendant’s copying of all of the names and addresses of lawyers in the plaintiff’s directory, together with certain “correlating data” (attorney specialization, title, firm composition and structure) was held not to be an infringement, since those elements were all unprotectible facts. Id. at 13-14. As in BAPCO, the parties did not dispute the copyrightability of plaintiff’s work as a whole. Id. at 9.
  57. 115 F.3d 1509 (11th Cir. 1997) (en banc).
  58. Id. at 1513 n.4.
  59. Id. at 1512. Warren had also claimed infringement as to the data fields and the data field entries. Id. The district court found that Microdos had not infringed the data field format and that the data field entries were unprotectable facts. Id.
  60. Id. at 1516.
  61. Id. at 1517. Section 102(b), which is set out in full above, precludes protection for “any idea, procedure, process, system, method of operation, concept, principle, or discovery. . . .” 17 U.S.C. §102(b).
  62. Warren Publishing, 115 F.3d at 1518.
  63. Id. at 1519.
  64. 44 F.3d 61 (2d Cir. 1994).
  65. Id. at 71 (relying on Kregos, 37 F.2d at 707).
  66. Under the merger doctrine, where an idea can be expressed in only one or a small number of ways, the expression is said to have “merged” with the idea and become unprotectable. See Kregos, 937 F.2d at 705; Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971).
  67. CCC Info. Servs., 44 F.3d at 70-71. The court also held that the selection and arrangement of data in a compilation of used car valuations (the “Red Book”) “displayed amply sufficient originality” to satisfy Feist. Id. at 67.
  68. Id. at 70.
  69. Id. at 72. See also Compaq Computer Corp. v. Procom Tech., Inc., 908 F. Supp. 1409, 1418 (S.D. Tex. 1995) (stating Compaq’s compilation of five "threshold values" used to predict imminent failure of disk drive meets Feist standard since Compaq made numerous subjective choices requiring creativity and judgment in determining which values to monitor; moreover, "the underlying elements of the compilation are not facts" because they were determined by Compaq based on its estimate of when drive would fail and its business judgment as to when it would be willing to replace it under product warranty); Jane C. Ginsburg, Copyright, Common Law and Sui Generis Protection of Databases in the U.S. and Abroad, 66 U. Cin. L. Rev. 151 (1997). But see Alexandria Drafting Co. v. Amsterdam, 43 U.S.P.Q.2d (BNA) 1247 (E.D. Pa. 1997) (copying of "false facts" invented by plaintiff and inserted in its work to detect copying is not infringement); Nester's Map & Guide Corp., 796 F. Supp. at 733.

See also Edit

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