Unlike patent law, copyright does not require its beneficiaries to devise something inventive or new; an author need establish only that she has created (i) an "original work of authorship" that is (ii) "fixed in a tangible medium of expression, now known or later developed, from which [it] can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a). Fixation is satisfied so long as the work is stored in some tangible form from which a person or machine can perceive it; storage on a computer's hard drive, on a diskette, or on a CD-ROM disk all qualify.
This unit will focus primarily on the originality criterion. Originality does not require innovation or advance; it demands only that the work result from independent creation rather than the copying of someone else's work. Nonetheless, the standard for originality has, for some time, created difficulties for the courts. Should the courts reward someone who has put great effort into making something that reflects little or no creativity? Should copyright recognize those who exercise tremendous technical skill but little artistic judgment in constructing a work? A 1992 Supreme Court case sheds some light on the meaning of originality, but the lower court opinions discussed in the notes that follow show that a final answer is a long way off.
Before reading the following case, review § 102(a), § 103, and the definition of "compilation" in § 101.
O'CONNOR, J. This case requires us to clarify the extent of copyright protection available to telephone directory white pages.
Rural Telephone Service Company is a certified public utility that provides telephone service to several communities in northwest Kansas. [A]s a condition of its monopoly franchise, Rural publishes a typical telephone directory, consisting of white pages and yellow pages. The white pages list in alphabetical order the names of Rural's subscribers, together with their towns and telephone numbers. … Rural distributes its directory free of charge to its subscribers, but earns revenue by selling yellow pages advertisements.
Feist Publications, Inc., is a publishing company that specializes in area-wide telephone directories. Unlike a typical directory, which covers only a particular calling area, Feist's area-wide directories cover a much larger geographical range, reducing the need to call directory assistance or consult multiple directories. The Feist directory that is the subject of this litigation covers 11 different telephone service areas in 15 counties and contains 46,878 white pages listings - compared to Rural's approximately 7,700 listings. * * *
As the sole provider of telephone service in its service area, Rural obtains subscriber information quite easily. Persons desiring telephone service must apply to Rural and provide their names and addresses; Rural then assigns them a telephone number. Feist is not a telephone company, let alone one with monopoly status, and therefore lacks independent access to any subscriber information. To obtain white pages listings for its area-wide directory, Feist approached each of the 11 telephone companies operating in northwest Kansas and offered to pay for the right to use its white pages listings.
Of the 11 telephone companies, only Rural refused to license its listings to Feist. * * * Unable to license Rural's white pages listings, Feist used them without Rural's consent. Feist began by removing several thousand listings that fell outside the geographic range of its area-wide directory, then hired personnel to investigate the 4,935 that remained. These employees verified the data reported by Rural and sought to obtain additional information. As a result, a typical Feist listing includes the individual's street address; most of Rural's listings do not. Notwithstanding these additions, however, 1,309 of the 46,878 listings in Feist's 1983 directory were identical to listings in Rural's 1982-1983 white pages. ... Four of these were fictitious listings that Rural had inserted into its directory to detect copying.
Rural sued for copyright infringement in the District Court for the District of Kansas, taking the position that Feist, in compiling its own directory, could not use the information contained in Rural's white pages. * * * The District Court granted summary judgment to Rural, explaining that "[c]ourts have consistently held that telephone directories are copyrightable" and citing a string of lower court decisions. 663 F.Supp. 214, 218 (1987). In an unpublished opinion, the Court of Appeals for the Tenth Circuit affirmed "for substantially the reasons given by the district court." We granted certiorari, 498 U.S. 808 (1990), to determine whether the copyright in Rural's directory protects the names, towns, and telephone numbers copied by Feist.
II . A.
This case concerns the interaction of two well-established propositions. The first is that facts are not copyrightable; the other, that compilations of facts generally are. Each of these propositions possesses an impeccable pedigree. That there can be no valid copyright in facts is universally understood. The most fundamental axiom of copyright law is that "[n]o author may copyright his ideas or the facts he narrates." Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556 (1985). … At the same time, however, it is beyond dispute that compilations of facts are within the subject matter of copyright. Compilations were expressly mentioned in the Copyright Act of 1909, and again in the Copyright Act of 1976.
There is an undeniable tension between these two propositions. Many compilations consist of nothing but raw data - i.e., wholly factual information not accompanied by any original written expression. On what basis may one claim a copyright in such a work? Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place. Yet copyright law seems to contemplate that compilations that consist exclusively of facts are potentially within its scope.
The key to resolving the tension lies in understanding why facts are not copyrightable. The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. See Harper & Row, supra, at 547-549. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. 1 M. Nimmer & D. Nimmer, Copyright 2.01[A], [B] (1990) (hereinafter Nimmer). 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. Id. 1.08[C]1. Originality does not signify novelty; a work may be original even though it closely resembles other works, so long as the similarity is fortuitous, not the result of copying. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable. See Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (CA2 1936).
Originality is a constitutional requirement. The source of Congress' power to enact copyright laws is Article I, 8, cl. 8, of the Constitution, which authorizes Congress to "secur[e] for limited Times to Authors . . . the exclusive Right to their respective Writings." * * *
The originality requirement . . . remains the touchstone of copyright protection today. See Goldstein v. California, 412 U.S. 546, 561-562 (1973). It is the very "premise of copyright law." Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1368 (CA5 1981). * * * It is this bedrock principle of copyright that mandates the law's seemingly disparate treatment of facts and factual compilations. "No one may claim originality as to facts." Id. 2.11[A], p. 2-157. This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence.... The same is true of all facts - scientific, historical, biographical, and news of the day. "[T]hey may not be copyrighted, and are part of the public domain available to every person." Miller, supra, at 1369.
Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws. Nimmer 2.11[D], 3.03; Denicola 523, n. 38. Thus, even a directory that contains absolutely no protectible written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement. See Harper & Row, 471 U.S., at 547. Accord, Nimmer 3.03.
This protection is subject to an important limitation. The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. * * * Where the compilation author adds no written expression, but rather lets the facts speak for themselves, the expressive element is … elusive. The only conceivable expression is the manner in which the compiler has selected and arranged the facts. Thus, if the selection and arrangement are original, these elements of the work are eligible for copyright protection. … No matter how original the format, however, the facts themselves do not become original through association. * * *
This inevitably means that the copyright 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. As one commentator explains it: "[N]o matter how much original authorship the work displays, the facts and ideas it exposes are free for the taking. . . . [T]he very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas." Ginsburg 1868.
It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme." Harper & Row, 471 U.S., at 589 (dissenting opinion). It is, rather, "the essence of copyright," ibid. and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." Art. I, 8, cl. 8. Accord, Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. Harper & Row, supra, at 556-557. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler's selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art. * * *
This, then, resolves the doctrinal tension: Copyright treats facts and factual compilations in a wholly consistent manner. Facts, whether alone or as part of a compilation, are not original, and therefore may not be copyrighted. A factual compilation is eligible for copyright if it features an original selection or arrangement of facts, but the copyright is limited to the particular selection or arrangement. In no event may copyright extend to the facts themselves.
As we have explained, originality is a constitutionally mandated prerequisite for copyright protection. … The 1909 Act embodied the originality requirement, but not as clearly as it might have. * * * [S]ome courts misunderstood the statute. * * * [T]he fact that factual compilations were mentioned specifically ... led some courts to infer erroneously that directories and the like were copyrightable per se, "without any further or precise showing of original - personal - authorship." Ginsburg 1895.
Making matters worse, these courts developed a new theory to justify the protection of factual compilations. Known alternatively as "sweat of the brow" or "industrious collection," the underlying notion was that copyright was a reward for the hard work that went into compiling facts. * * *
The "sweat of the brow" doctrine had numerous flaws, the most glaring being that it extended copyright protection in a compilation beyond selection and arrangement - the compiler's original contributions - to the facts themselves. Under the doctrine, the only defense to infringement was independent creation. * * * "Sweat of the brow" courts thereby eschewed the most fundamental axiom of copyright law - that no one may copyright facts or ideas. * * *
Without a doubt, the "sweat of the brow" doctrine flouted basic copyright principles. Throughout history, copyright law has "recognize[d] a greater need to disseminate factual works than works of fiction or fantasy." Harper & Row, 471 U.S. at 563. Accord, Gorman, Fact or Fancy: The Implications for Copyright, 29 J. Copyright Soc. 560, 563 (1982). But "sweat of the brow" courts . . . handed out proprietary interests in facts and declared that authors are absolutely precluded from saving time and effort by relying upon the facts contained in prior works. In truth, "[i]t is just such wasted effort that the proscription against the copyright of ideas and facts . . . [is] designed to prevent." Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 310 (CA2 1966), cert. denied 385 U.S. 1009 (1967). "Protection for the fruits of such research . . . may, in certain circumstances, be available under a theory of unfair competition. But to accord copyright protection on this basis alone distorts basic copyright principles in that it creates a monopoly in public domain materials without the necessary justification of protecting and encouraging the creation of `writings' by `authors.'" Nimmer 3.04, p. 3-23 (footnote omitted).
* * * [T]he 1976 revisions to the Copyright Act leave no doubt that originality, not "sweat of the brow," is the touchstone of copyright protection in directories and other fact-based works. Nor is there any doubt that the same was true under the 1909 Act. The 1976 revisions were a direct response to the Copyright Office's concern that many lower courts had misconstrued this basic principle, and Congress emphasized repeatedly that the purpose of the revisions was to clarify, not change, existing law. The revisions explain with painstaking clarity that copyright requires originality, 102(a); that facts are never original, 102(b); that the copyright in a compilation does not extend to the facts it contains, 103(b); and that a compilation is copyrightable only to the extent that it features an original selection, coordination, or arrangement, 101. * * *
There is no doubt that Feist took from the white pages of Rural's directory a substantial amount of factual information. … Not all copying, however, is copyright infringement. To establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. The first element is not at issue here; Feist appears to concede that Rural's directory, considered as a whole, is subject to a valid copyright because it contains some foreword text, as well as original material in its yellow pages advertisements.
The question is whether Rural has proved the second element. In other words, did Feist, by taking 1,309 names, towns, and telephone numbers from Rural's white pages, copy anything that was "original" to Rural? Certainly, the raw data does not satisfy the originality requirement. Rural may have been the first to discover and report the names, towns, and telephone numbers of its subscribers, but this data does not "`ow[e] its origin'" to Rural. Burrow-Giles, 111 U.S., at 58. Rather, these bits of information are uncopyrightable facts; they existed before Rural reported them, and would have continued to exist if Rural had never published a telephone directory. … Section 103(b) states explicitly that the copyright in a compilation does not extend to "the preexisting material employed in the work."
The question that remains is whether Rural selected, coordinated, or arranged these uncopyrightable facts in an original way. As mentioned, originality is not a stringent standard; it does not require that facts be presented in an innovative or surprising way. It is equally true, however, that the selection and arrangement of facts cannot be so mechanical or routine as to require no creativity whatsoever. The standard of originality is low, but it does exist. As this Court has explained, the Constitution mandates some minimal degree of creativity, and an author who claims infringement must prove "the existence of . . . intellectual production, of thought, and conception." Burrow-Giles, supra, at 59-60.
The selection, coordination, and arrangement of Rural's white pages do not satisfy the minimum constitutional standards for copyright protection. As mentioned at the outset, 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.
Rural's selection of listings could not be more obvious: It publishes the most basic information - name, town, and telephone number - about each person who applies to it for telephone service. This is "selection" of a sort, but it lacks the modicum of creativity necessary to transform mere selection into copyrightable expression. Rural expended sufficient effort to make the white pages directory useful, but insufficient creativity to make it original.
We note in passing that the selection featured in Rural's white pages may also fail the originality requirement for another reason. Feist points out that Rural did not truly "select" to publish the names and telephone numbers of its subscribers; rather, it was required to do so by the Kansas Corporation Commission as part of its monopoly franchise. Accordingly, one could plausibly conclude that this selection was dictated by state law, not by Rural.
Nor can Rural claim originality in its coordination and arrangement of facts. The white pages do nothing more than list Rural's subscribers in alphabetical order. This arrangement may, technically speaking, owe its origin to Rural; no one disputes that Rural undertook the task of alphabetizing the names itself. But there is nothing remotely creative about arranging names alphabetically in a white pages directory. . . .It is not only noriginal, it is practically inevitable. This time-honored tradition does not possess the minimal creative spark required by the Copyright Act and the Constitution.
We conclude that the names, towns, and telephone numbers copied by Feist were not original to Rural, and therefore were not protected by the copyright in Rural's combined white and yellow pages directory. * * * Because Rural's white pages lack the requisite originality, Feist's use of the listings cannot constitute infringement. This decision should not be construed as demeaning Rural's efforts in compiling its directory, but rather as making clear that copyright rewards originality, not effort. As this Court noted more than a century ago, "great praise may be due to the plaintiffs for their industry and enterprise in publishing this paper, yet the law does not contemplate their being rewarded in this way." Baker v. Selden, 101 U.S., at 105.
The judgment of the Court of Appeals is Reversed. JUSTICE BLACKMUN concurs in the judgment.
Comments, notes, and questions
While Feist did not itself involve cyberspace or even (at least directly) computers, it has great significance for a number of categories of works that are accessed through the Internet or other digital media. The following notes explore some of the implications that the Supreme Court's holding has for the development of cyberlaw.
Putting aside any textual arguments based on the Constitution or the Copyright Act, why, as a policy matter, might one argue for or against protection for "sweat of the brow" works? Think about the balance between incentive and the public domain that underlies the United States copyright system. How does protecting "sweat of the brow" works affect that balance? If the creator of a factual compilation can prevent others from taking and using the facts in the compilation, what must researchers and others do if they wish to make use of the facts in the compilation? Is this an efficient solution?
On the other hand, if developers of compilations have no rights to prevent others from appropriating their collections, what incentive do they have to develop the compilation in the first place? How would you resolve the issue?
West, however, claimed that its selection and arrangement of cases reflected originality, and argued that the plaintiff's use of internal page numbers infringed on its copyright by enabling a user (with some manipulation) to "perceive" that original selection and arrangement. Id. at 695-96. The court rejected that argument for two reasons.
First, the court noted that West had conceded that the fair use doctrine allowed publishers to use the starting page of each opinion, and that the starting pages alone enabled a user, aided by a computer, to "perceive" the order of West opinions within a volume. "Once the copy has thus been created through parallel citation - assuming that anyone would wish to avail themselves of the capability of perceiving this copy - the only incremental data made perceivable (through the aid of a machine) by star pagination is the location of page breaks within each judicial opinion. But since page breaks do not result from any original creation by West, their location may be lawfully copied." Id. at 701.
Second, the court disagreed with West's contention that the plaintiffs' databases made unlawful "copies" of the West reporters by giving enough information to enable a user to replicate the reporters with the aid of a machine. West had based its contention on the definition of "copies" in Section 101 of the Copyright Act: '''Copies' are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 101. Because plaintiffs' CD-ROMs enabled users to re-create the West reporters with the aid of a computer, West argued, plaintiffs' compilations constituted "material objects … from which the work can be perceived, reproduced, or otherwise communicated … with the aid of a machine or device." The court found that this reading distorted the meaning of "copies":
"West's definition of a copy, as applied to a CD-ROM disc, would expand the embedded work to include all arrangements and re arrangements that could be made by a third-party user who manipulates the data on his or her own initiative. But the relevant statutory wording refers to material objects in which "a work" readable by technology "is fixed," not to another work or works that can be created, unbidden, by using technology to alter the fixed embedding of the work, by rearrangement or otherwise. The natural reading of the statute is that the arrangement of the work is the one that can be perceived by a machine without an uninvited manipulation of the data." Id. at 703.
Having concluded that the relevant comparison, for infringement purposes, was between the West reporters and plaintiffs' collections as digitally presented in their CD-ROMs, the court found that plaintiffs' works were not "substantially similar" to the West reporters and therefore did not infringe.
District Judge Sweet, sitting by designation in West I, relied on these cases to dissent from the majority opinion. He agreed with the Eighth Circuit that "(i) comprehensive pagination, when linked to the text of a compilation, is copyrightable in terms of originality because it expresses the compiler's expression and arrangement, and (ii) a compilation's selection and arrangement is copied when comprehensive cross-pagination is inserted into an electronic database containing the compilation's text." 158 F.3d at 711 (Sweet, D.J., dissenting) (citing 799 F.2d at 1227-28).
Do you agree with the majority or with Judge Sweet and the cases that he cited? Even the majority agreed that West's decision about which cases to include in its reporter, and its ordering of cases within that reporter, reflected sufficient originality to merit copyright protection. Given that, does the replication of West's page numbers in a CD-ROM create a "copy" that infringes West's copyright? Does it make a difference that the defendants' CD-ROMs each included far more cases than the West reporters and ordered them differently?
Do you agree with this result? Does West's decision to include the names of counsel, to include certain select subsequent history, and to include some (but not all) parallel citations reflect enough of a "modicum of creativity" to deserve protection against copying? Even if each of these decisions does not, in isolation, reflect sufficient originality, is there an argument that, together, the choices made reflect some creative judgment so that one who copies them verbatim infringes?
In May 1999, Representative Tom Bliley proposed a much narrower bill, the Consumer and Investor Access to Information Act of 1999, which has garnered the support of many opponents of HR 354. Bliley's bill, HR 1858, would make it "unlawful for any person ... to sell or distribute to the public a database that (1) is a duplicate of another database that was collected and organized by another person; and (2) is sold or distributed in commerce in competition with that other database." HR 354 would not provide for a private right of action; the Federal Trade Commission would be charged with policing the Act.
Review the following materials about the pending database legislation:
After perusing these materials, are you convinced that legislation is necessary to protect the owners of commercial databases? Why or why not? If you support some kind of legislation, which bill (HR 354 or HR 1858) best achieves the goals of database legislation without unduly interfering with users' rights?
www.WebAAArt.com is a Web site that calls itself "the poor people's entre to classic art." WebAAArt's founder, Ann, a starving artist, had the idea of photographing public domain art and posting it on the Web, allowing any user (for a small fee) to download the art and print it out to decorate her home or office. Because the art was all in the public domain (i.e., its copyright had expired or, for some other reason, it was unprotected by copyright), a law student friend assured Ann that she could photograph and post the art without violating the copyright laws. (You may assume for purposes of this question that the friend gave wise advice.)
Ann traveled to various museums, equipped with low-light cameras and film, and took photographs of some of her favorite classic paintings and sculptures. Ann visited only museums that allowed photography, and she took pictures only of public domain art. Although the lighting sometimes made her task difficult, Ann did her best to make the photograph true to the original. She spent much time adjusting the lighting, cropping photos, and digitally enhancing the images to achieve as close to an exact photographic reproduction as possible.
After months of preparing the photographs and transforming them into digital images, Ann finally launched her site. Having little money, and believing in art lovers as basically honest types, Ann did not establish a secure site; she merely posted her 100 favorite images and asked people who downloaded them to send her a check for $1.00 per downloaded image. Next to each image, she posted the following notice: "Copyright 1999 Ann Artist. Anyone who downloads this image without authorization will be persecuted to the full extent of the law." (Okay, Ann didn't have total faith in art lovers.)
Last week, Ann learned from a friend that another Web site, www.arteeste.com had taken her idea and was selling images for fifty cents per image. She looked up the URL, and sure enough, someone had downloaded each of her 100 images and was offering them to customers for half the price.
Does Ann have any recourse against Arteeste under United States copyright laws? What if Arteeste had copied only five of her images and had arranged them in a different order along with ninety-five images created by Arteeste? In thinking about this problem, you should focus on two separate questions: first, whether the individual photographs are protected by copyright law; and second, whether the collection of photographs are protected by copyright law. Feist probably provides the most guidance on the second question. For one court's view on an issue similar (but not identical) to the first question, see Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999).Go to the next unit of this module