Feist Publications v. Rural Telephone Service Co.

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1991 United States Supreme Court case

Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), was a landmark decision by the Supreme Court of the United States establishing that information alone without a minimum of original creativity cannot be protected by copyright. In the case appealed, Feist had copied information from Rural's telephone listings to include in its own, after Rural had refused to license the information. Rural sued for copyright infringement . The Court ruled that information contained in Rural's phone directory was not copyrightable and that therefore no infringement existed.

Background

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The "white pages" of a telephone directory

Rural Telephone Service Company, Inc. is a telephone cooperative providing services for areas in northwest Kansas, with headquarters in the small town of Lenora , in Norton County . The company was under a statutory obligation to compile and distribute a "white pages " phone directory of all its customers free of charge as a condition of its monopoly franchise.

Feist Publications, Inc. specialized in compiling telephone directories from larger geographic areas than Rural from other areas of Kansas. It had licensed the directory of 11 other local directories, with Rural being the only holdout in the region. Despite Rural's denial of a license to Feist, Feist copied 4,000 entries from Rural's directory. Because Rural had placed a small number of phony entries to detect copying, Feist's copying was evidenced.

Before this case, the substance of copyright in United States law followed the sweat of the brow doctrine, which gave copyright to anyone who invested significant amount of time and energy into their work. At trial and appeal level the courts followed this doctrine, siding with Rural.

Ruling of the court

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The ruling of the court was written by Justice Sandra Day O'Connor . It examined the purpose of copyright and explained the standard of copyrightability as based on originality .

The case centered on two well-established principles in United States copyright law: that facts are not copyrightable, and that compilations of facts can be.

"There is an undeniable tension between these two propositions", O'Connor wrote in her opinion. "Many compilations consist of nothing but raw data—i.e. wholly factual information not accompanied by any original expression. On what basis may one claim a copyright upon such work? Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place. … The key to resolving the tension lies in understanding why facts are not copyrightable: The "_Sine qua non _ of copyright is originality."

Rural claimed a collection copyright in its directory. The court clarified that the intent of copyright law was not, as claimed by Rural and some lower courts, to reward the efforts of persons collecting information—the so-called "sweat of the brow " or "industrious collection" doctrine—but rather "to promote the Progress of Science and useful Arts" (U.S. Const. Art. I, § 8, cl. 8 )—that is, to encourage creative expression.

The standard for creativity is extremely low. It need not be novel; it need only possess a "spark" or "minimal degree" of creativity to be protected by copyright.

In regard to collections of facts, O'Connor wrote that copyright can apply only to the creative aspects of collection: the creative choice of what data to include or exclude, the order and style in which the information is presented, etc.—not to the information itself. If Feist were to take the directory and rearrange it, it would avoid the copyright owned in the data. "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", she wrote.

The court held that Rural's directory was nothing more than an alphabetic list of all subscribers to its service, which it was required to compile under law, and that no creative expression was involved. That Rural spent considerable time and money collecting the data was irrelevant to copyright law, and Rural's copyright claim was dismissed.

All the justices joined O'Connor's opinion except Harry Blackmun , who concurred only in judgment, but did not file a separate opinion.

Implications

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See also: Idea-expression divide and Threshold of originality

The ruling has major implications for any project that serves as a collection of knowledge. Information (facts , discoveries, etc.) from any source is fair game, but cannot contain any of the "expressive" content added by the source author . That includes not only the author's own comments, but also their choice of which facts to cover, which links to make among the bits of information, the order of presentation (unless it is something obvious like alphabetical), evaluations of the quality of various pieces of information, or anything else that might be considered the author's "original creative work" rather than mere facts.

For example, a recipe is a process, and not copyrightable, but the words used to describe it are; see idea-expression divide and _Publications International v. Meredith Corp. _ (1996). Therefore, a recipe can be rewritten with different wording and be published without infringing copyright. If an individual rewrote every recipe from a particular cookbook , they might be found to have infringed the author's copyright in the choice of recipes and their "coordination" and "presentation", even if they used different words, but the West decisions below suggest that this is unlikely unless there is some significant creativity carried over from the original presentation. A sufficiently novel, useful, and unique (i.e. non-obvious) recipe can be granted protection under patent law.

Feist proved most important in the area of copyright of legal case law publications. One might assume that the text of U.S. case law is in public domain , but Thomson West claimed a copyright as to the first-page citations and internal pinpoint page citations of its versions of court opinions (case law) found in its printed versions of the case law ("West's citation claims"). West also claimed a copyright in the text of its versions of the case law, which included parallel citations and typographical corrections ("West's text claims"). The text claim would have barred anyone from copying the text of a case from a West case law reporter, since the copied text would include West enhancements to which West claimed copyright.

In a 1986 pre-Feist case, West's citation copyright claim was affirmed by the U.S. Court of Appeals for the Eighth Circuit in a preliminary injunction case brought by West against Mead Data, owner of Lexis (_West v. Mead _), but in a case commenced in 1994 in the U.S. District Court for the Southern District of New York , the U.S. Court of Appeals for the Second Circuit found Feist to have undermined the reasoning in West v. Mead. West's citation claims were challenged in 1994 by legal publisher Matthew Bender & Company and by a small CD-ROM publisher HyperLaw, Inc. HyperLaw intervened, joining Matthew Bender in the citation challenge and separately challenging West's text copyright claims. In 1998, the Second Circuit found that West did not have a protectable copyright interest in its first-page citations or its internal pagination citations (Matthew Bender v. West, 158 F.3d 693 (2d Cir. 1998)). The Second Circuit thereby rejected a Minnesota district court's 1996 det

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