From Facts to Form: Extension and Application of the Feist "Practical Inevitability

Golden Gate University Law Review, Dec 1992

This Note will analyze the results of extending the "practical inevitability" test and creativity standard in the holding of Feist Publications, Inc. v. Rural Telephone Service Co. from works involving the compilation of facts to other works including computer programs, sculpture, signs, fabric patterns and chinaware patterns. It will also discuss the Copyright Office's review of copyright applications for functional objects. The Note will continue with an analysis of the ramifications of the policy of judicial deference to the Register of Copyright's decision on creativity when reviewing a copyright denial. It will conclude with a discussion of the judicial policy that an action for infringement is the most appropriate place to determine the creativity element necessary for obtaining a copyright for functional objects.

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From Facts to Form: Extension and Application of the Feist "Practical Inevitability

From Facts to Form: Extension and Application of the Feist "Practical Inevitability " Test and Creativity Standard Joseph P. Hart 0 1 0 Thi s Note is brought to you for free and open access by the Academic Journals at GGU Law Digital Commons. It has been accepted for inclusion in Golden Gate University Law Review by an authorized administrator of GGU Law Digital Commons. For more information , please contact 1 Joseph P. Hart, From Facts to Form: Extension and Application of the Feist "Practical Inevitability" Test and Creativity Standard, 22 Golden Gate U. L. Rev. , 1992 Part of the Intellectual Property Law Commons - FROM FACTS TO FORM: EXTENSION AND APPLICATION OF THE FEIST "PRACTICAL INEVITABILITY" TEST AND CREATIVITY STANDARD I. INTRODUCTION This Note will analyze the results of extending the "practi­ cal inevitability" test and creativity standard in the holding of Feist Publications, Inc. v. Rural Telephone Service Co. 1 from works involving the compilation of facts to other works includ­ ing computer programs, sculpture, signs, fabric patterns and chinaware patterns. It will also discuss the Copyright Office's review of copyright applications for functional objects. The Note will continue with an analysis of the ramifications of the policy of judicial deference to the Register of Copyright's decision on creativity when reviewing a copyright denial. It will conclude with a discussion of the judicial policy that an action for infringement is the most appropriate place to determine the creativity element necessary for obtaining a copyright for functional objects. II. THE BASIS OF COPYRIGHT PROTECTIONS The right of an author under the common law to have the sole right of initial printing and publishing of his or her work was decided in England by Lord· Mansfield writing for the majority in Millar v. Taylor. 2 In the United States, constitutional copyright protection subsists in originai works of authorship.3 The two require­ ments for authorship, independent creation and creativity, arise from the statutory phrase "original works of author­ ship" which in turn has its basis in the Constitution.4 In order 550 GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 22:549 to be certified as a pictorial, graphic or sculptural work appro­ priate for copyright protection, the work must incorporate some creative authorship in its delineation or form. 6 III. THE "PRACTICAL INEVITABILITY" TEST AND CREATIVITY STANDARD OF FEIST The Supreme Court in Feist Publications, Inc. v. Rural Telephone Service CO.6 addressed the constitutional origins of copyright and determined a standard of creativity to be applied to all works. Although the Court could have restricted its holding to the white pages telephone directory which was the subject of the dispute, the Court used the opportunity for a thor­ ough discussion of the requirement of creativity in copyrighted works. The issue in Feist was whether the white pages listings in a telephone directory, which compiled an alphabetical listing of the names of telephone subscribers together with their addresses and telephone numbers, had the requisite creativ­ ity to be afforded copyright protection.7 The Court held that a work is "original" and qualifies for copyright protection if the work is independently created by the author and possesses some minimal degree of creativity.s Originality for copyright purposes is constitutionally mandated for all works.9 The Supreme Court held that the vast majority of works "make the grade. "10 The requisite level is extremely low, even a slight amount will suffice. ll However, "originality" does not require "novelty;" a work may be original even though it is very similar to other works so long as the similarity is fortuitous, not the result of copying. 12 5. 37 C.F.R. § 202.10(a) (1991). 6. 111 S. Ct. 128 2 (1991 ). 7. [d. at 1282. Rural Telephone Service was a public utility providing service to communities in Kansas. Rural was required by Kansas regulations to compile a direc­ tory including white and yellow pages. The information was obtained from sub­ scribers when they obtained service. Feist Publications, Inc. was a publishing company that specialized in area wide telephone directories. When Rural refused to license its white pages listings to Feist, the information was extracted without con­ sent. Although Feist altered many of Rural's listings, several were identical to list­ ings in Rural's directory. The district court granted summary judgment to Rural in an infringement suit, which was affirmed on appeal. [d. at 1286. 8. [d. at 1287. 9. [d. at 1288. 10. [d. at 1287. 11. [d. 12. [d. 1992] Prior to Feist the level of creativity necessary for a show­ ing of copyrightability had been described as "very slight," "minimal"13 or "modest."14 The Court in Feist held creativity is the fundamental copyright principle that mandates the law's seemingly different treatment of facts and factual compil­ ations. 16 No one may claim originalit (...truncated)


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Joseph P. Hart. From Facts to Form: Extension and Application of the Feist "Practical Inevitability, Golden Gate University Law Review, 1992, Volume 22, Issue 2,