Thin But Not Anorexic: Copyright Protection for Compilations and Other Fact Works

Journal of Intellectual Property Law Volume 15 | Issue 1 Article 3 October 2007 Thin But Not Anorexic: Copyright Protection for Compilations and Other Fact Works David E. Shipley University of Georgia School of Law Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Business Intelligence Commons, Commercial Law Commons, and the Intellectual Property Law Commons Recommended Citation David E. Shipley, Thin But Not Anorexic: Copyright Protection for Compilations and Other Fact Works, 15 J. Intell. Prop. L. 91 (2007). Available at: https://digitalcommons.law.uga.edu/jipl/vol15/iss1/3 This Article is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Shipley: Thin But Not Anorexic: Copyright Protection for Compilations and THIN BUT NOT ANOREXIC: COPYRIGHT PROTECTION FOR COMPILATIONS AND OTHER FACT WORKS DaidE.Shly* TABLE OF CONTENTS I. INTRODUCTION II. THE FUNDAMENTALS OF Feist ................................. ............................................ III. APPLICATIONS OF Feistfs FUNDAMENTAL PRINCIPLES ............. A. DIRECTORIES ............................................ B. CATALOGUE NUMBERS FOR PARTS .......................... C. TASTE, OPINION, PREDICTIONS AND SOFT FACTS .............. D. CLASSIFICATIONS AND TAXONOMIES ....................... E. CHARTS, FORMS AND JUDICIAL REPORTS ..................... IV. SYNTHESIS ...................... A. COPYRIGHTABILITY ............ B. PROVING INFRINGEMENT V. 92 94 98 99 106 112 118 125 ................... ................... ...... ................... C. FAIR USE ..................... D. UNPROTECTED SOFT FACTS ..... ................... CONCLUSION .......................... 140 ................... ................... * Thomas R.R. Cobb Professor of Law, University of Georgia School of Law. Published by Digital Commons @ Georgia Law, 2007 1 Journal of Intellectual Property Law, Vol. 15, Iss. 1 [2007], Art. 3 J. INTELL PROP.L [Vol. 15:91 I. INTRODUCTION "While ...the 'copyright in a factual compilation is thin,' we do not believe it is anorexic."' The Court of Appeals for the Second Circuit made this statement shortly after the Supreme Court announced its landmark ruling in FeistPublications, Inc. v. Rural Telhone Services Co.2 The Second Circuit held that a yellow pages directory of businesses in New York City's Chinatown was copyrightable because there was originality in the plaintiffs selection of establishments to include in the publication.3 The court concluded, however, that the defendant's business guide did not infringe because the organizing principles of the two publications were5 different.4 This is a familiar scenario with litigation over "low authorship" works like directories. The plaintiff won the battle over copyrightability but lost the war of infringement. The scope of the plaintiff's copyright might not have been anorexic, but it was certainly lean. Questions about the copyrightability of compilations and other low authorship fact works, and about the scope of protection, have continued to trouble courts long after Feist.6 The Supreme Court's focus was on the protectability of a telephone company's standard white pages directory7 that had been copied by the publisher of an area-wide directory. Justice O'Connor's opinion, explaining why the directory did not meet the constitutional and statutory requirements for copyright protection, defined an original work of authorship as one that is independently created by its author and that evidences at least a minimal level of creativity.8 Most works will satisfy this standard since they will possess some creative spark.9 ' Key Publ'ns, Inc. v. Chinatown Today Publ'g Enters., Inc., 945 F.2d 509, 515 (2d Cir. 1991) (quoting Feist Publn's, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991)). 2 499 U.S. 340 (1991). 3 Ky Publ'ns, 945 F.2d at 513. 4 Id.at 516 (finding there was not substantial similarity of protected expression). s The term "low authorship" work was applied by Professor Jane Ginsburg to fact works like directories, maps, databases, and other compilations in contrast to works of "high authorship" like novels and narrative histories. Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection for Works of Information, 90 COLUM. L. REV. 1865, 1866-71 (1990); see also Paul Heald, The Vices of Originalhy, 1991 SUP. CT. REV. 143, 150 (further applying the term). 6 See CRAIGJOYCE, MARSHALLLEAFFER, PETERJASZI &TYLER OCHOA, COPYRIGHT LAW 242 (7th ed. 2006) ("In the aftermath of Feist,the distinction between copyrightability, on the one hand, and the scope of copyright protection, on the other, takes on special importance in compilation cases."). 7 Feist, 499 U.S. at 356-59. s See id. at 374 (noting that "a slight amount [of creativity] will suffice") (citing 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 1.08[C][1] (2007 ed.)). ' Feist, 499 U.S. at 345; see Alan Durham, Speaking of the World: Fact,Opinion and the Onginakty Standardof Copyright, 33 ARIZ. ST. L.J. 791, 793 (2001). https://digitalcommons.law.uga.edu/jipl/vol15/iss1/3 2 Shipley: Thin But Not Anorexic: Copyright Protection for Compilations and 2007] THIN B UT NOT ANOREXIC Even though the task of opining on the question of copyrightability should not be onerous because the originality standard is not stringent ° the modicum of creativity requirement is seen as being elusive." For the most part, the Supreme Court defined creativity in Feistby negative example, describing how an author's efforts in preparing a compilation might not satisfy the requirement: selections and arrangements that are mechanical, routine, commonplace, typical, garden variety, obvious, inevitable, or dictated by law will fail to pass muster. 2 Reported decisions applying Feist to challenged compilations and other low authorship works now provide many examples of unprotectable works deemed to be commonplace, routine, or garden-variety. The courts have added to the Supreme Court's examples of what is not creative by considering the impact of industry standards, customary practices, and regulatory requirements. The post-Feistcases also show that the merger doctrine is a significant hurdle for compilers1 3 as is the idea/expression dichotomy's ban on extending copyright protection to ideas, methods of operation, systems, and concepts as codified in section 102(b) of the Copyright Act. 4 Once a compilation is held copyrightable, the court has to rule on whether the work has been infringed. This requires dissection of the work to distinguish protected expression from unprotected facts and ideas. This is easier said than done because of the creativity requirement. Here again, the many decisio (...truncated)