Copyright Law –
Ronald W. Staudt
Class 6
February 9, 2009
Idea/Expression Dichotomy
102(b)
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.
Idea/Expression Dichotomy
Baker v. Selden
Central doctrine – ideas/systems/recipes- are
out—copyright protects only expression.
Merger re “methods and diagrams”
Secondary themes
Explain v. use
• “…not given for the purpose of publication in other
works explanatory of the art, but for the purpose of
practical application.” still the law?
“Blank account books are not the subject of
copyright…”
Idea/Expression Dichotomy
Morrissey v. Procter & Gamble
Thin v. Merger
merger doctrine extended – contest rules out
Continental Casualty
Legal form in but thin
Blank Form Cases
Baker v. Selden
Account books out
Morrissey
Contest rules out
Continental Casualty
Legal form in but thin
Bibbero Systems
Superbill out
ABR Benefits Services v. NCO Group
Copyrightability - Q of Fact re innovative
arrangement
Compilations and derivative works
§ 103. Subject matter of copyright:
Compilations and derivative works
(a) The subject matter of copyright as specified by section
102 includes compilations and derivative works, but
protection for a work employing preexisting material in
which copyright subsists does not extend to any part of the
work in which such material has been used unlawfully.
(b) 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.
Compilations
§ 101. Definitions
***
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.
Today’s assignment
Feist Publications, Inc v. Rural Telephone
Service
Rockford Map gloss
Nash v. CBS
Wainwright Securities
Questions p. 130
Bleistein v. Donaldson
188 U.S. 239 (1903)
Justice Holmes:
“The least pretentious picture has more
originality in it than directories and the
like, which may be copyrighted.”
Jeweler’s Circular Publishing
and Rockford Map
“The man who goes through the streets of a town and puts
down the names of each of the inhabitants, with their
occupations and their street number, acquires material of
which he is the author…” Jeweler’s Circular, 1922.
“All concede, …that "a second compiler may check back his
independent work upon the original compilation." The right
to "check back" does not imply a right to start with the
copyrighted work. Everyone must do the same basic work,
the same "industrious collection." "A subsequent compiler is
bound to set about doing for himself what the first compiler
has done." … The second compiler must assemble the
material as if there had never been a first compilation; only
then may the second compiler use the first as a check on
error. “ Rockford Map, 1985.
Feist black letter
facts are not copyrightable
compilations of facts generally are
100 uncopyrightable facts do not
magically change their status when
gathered together in one place
To qualify for copyright protection, a work
must be original to the author
independently created by the author (as
opposed to copied from other works), and
at least some minimal degree of creativity
two poets, each ignorant of the other, compose
identical poems. Neither work is novel, yet both are
original and, hence, copyrightable.
Feist black letter (cont.)
 Originality is a constitutional requirement.
 facts do not owe their origin to an act of authorship.
 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.
 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.
 This inevitably means that the copyright in a factual
compilation is thin
Feist black letter (cont.)
 The primary objective of copyright is not to reward the
labor of authors, but "to promote the Progress of
Science and useful Arts
 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.
 to make clear that the copyright in a compilation did not
extend to the facts themselves, Congress enacted § 103.
 The statute identifies three distinct elements and
requires each to be met for a work to qualify as a
copyrightable compilation:
 Collection and assembly of preexisting material
 Selection coordination and arrangement, and
 Creation, by #2, of an “original” work of authorship
Feist application
 … 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
"'owe its origin'" to Rural.
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.
 copyright rewards originality, not effort
Questions p. 123
What is not “obvious” or “commonplace”
adding new categories to phone book?
all Warhol museums
Is “sweat of the brow” necessary even if not
sufficient?
Rockford Map?
People viewing the dead body of John
Dillinger (Associated Press)
Nash
Facts
Authors as creators and borrowers
Nash as novelist v. historian
Toskvig and Hoehling
Nash holding v. Nash language
Wainwright Securities
Nihon Keizai Shimbun
Questions p. 130
Selection, coordination & arrangement of historical facts
Washington Post Pulitzer Prize hoax