The easy case is a "best of." If a famous critic selects a list of his
favorite movies or whatever, it is entitled to some copyright protection,
regardless of how he or she lists them.
Rollie
Roland J. Cole, J.D., Ph.D.
Director of Technology Policy
Sagamore Institute for Policy Research
340 West Michigan, Canal Suite B
INDIANAPOLIS IN 46202
317-727-8940; rollie[_at_]sipr.org; www.sipr.org
-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property
[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Webb, Jere
Sent: Monday, January 15, 2007 10:30 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: Copyright of lists
I have always thought the "selection" part of "selection and arrangement" is
a very interesting and troubling concept In the Feist case (which surprised
most copyright lawyers by holding that the white pages of the phone book are
not protectable), it didn't matter how much sweat of the brow the publisher
put into "selecting" only real living individuals for the book. Take this
example: you decide to publish a list of everyone in a city that has green
hair. Many hours are made implementing this selection. Copyright
protection? I don't think so.
No creativity in the selection, although there might have been a lot of
creativity in implementing the selection. I had a case once where someone
copied verbatim several hundred pages of my clients government application
for a license and filed it as a competing application. The application
consisted mainly of maps that had been prepared from government (i.e. public
domain) maps "selecting" certain features relevant to the license
application. Copyright protection? I decided this was a close call and
found the cases confusing. Another example:
what if through sheer creative genius someone comes up with an algorithm to
select from a database list a certain subset of data of interest to some
particular group or industry. The result is then presented as an
alphabetical list? Copyright protection? I'm not sure. What if I go thru
my college yearbook and "select" everyone in my class by use of my amazing
powers of recognition and then publish them in an alphetical list.
Copyright protection? I don't think so. So what would be a protectible
"selection" that results in an alphabetized list being protectible? I cant
think of an example. Can anyone cite a relevant case? What if I come up
with an incredibly creative parts numbering system for parts and I create a
list of the parts by their numbers assigned? Protectible? No according to
one court which observed that "clasifications schemes can in principle be
creative enough to satisfy the creativity requirement for copyright
protection" but that in the case before the court "all creative aspects of
the classification are just that: ideas". The court said that the merger
doctrine and the originality doctrine kill copyright protection for this
sort of thing because "For almost all types of creativity claimed [by the
plaintiff} there is only one reasonable way to expess the underlying idea".
This latter point would doom many if not most creative selection cases.
Jere
Jere M. Webb
Stoel Rives LLP
Standard Insurance Building
900 SW Fifth Ave., Suite 2600
Portland, OR 97204
Phone: 503-294-9460
Fax: 503-220-2480
Email: jmwebb[_at_]stoel.com
Secretary: Nancy Campbell
Phone: 503-294-9316
Email: nacampbell[_at_]stoel.com
www.stoel.com
-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property
[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of jfnbl[_at_]earthlink.com
Sent: Friday, January 12, 2007 03:50 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: Copyright of lists
IBD is entitled to "very thin" copyright protection for the selection and arrangement of its list of industry groups. In this case, the arrangement -- alphabetical -- is unoriginal, almost unavoidable, and undoubtedly unprotectible. The selection is another matter. The range of available choices for a taxonomy of industry groups is vast if not limitless. You say that "some of [your] names are similar but not the same," and "in a few cases [your] names and their names are the same." To the extent your example is representative -- 3 of 4 identical, and the fourth a slight variation -- you are close to the virtually identical reproduction (right down to the use of a matching abbreviation, Bldg) that would be required to establish infringement of IBD's very thin copyright. You won't find it in the statute or the caselaw, but in the real world this kind of subjective judgment is often based on unstated equitable considerations. It strikes me that it would be impossible to have arrived at your taxonomy without having copied theirs -- for commercial advantage, with strategic alterations to avoid a charge of slavish copying. In other words, one gets the sense that you are trading on the good will associated with their industry group listing. If you are selling subscriptions to a service that substitutes for theirs at half the price, it calls to mind the knock-offs of Gucci purses sold by street vendors. No offense intended. Maybe your product is superior. But it smells like a knock-off. The "right" legal claim would be unfair competition, except that the Copyright Act probably preempts the unfair competition claim. If the Copyright Act's preemption provision deprives IBD of what would otherwise be a good state law claim, then the court is going to be inclined to find a remedy in the Copyright Act.
Disclaimer: I'm not your lawyer, and you need one.
John Noble
At 4:05 PM -0500 9/1/07, HGS wrote:
>My question is about copyright law regarding a list of titles.
>
>I am a small business owner. I use a list of industry group titles in
my
>business to classify stock market companies. The name of my industry
group
>list is "Industry Monitors 200". The name is not trademarked or
>copyrighted. Here is a partial example of my list:
>
>Industry Monitors 200
> Banking-Foreign
> Banking-Midwest
> Banking-West
> Bldg-Hand Tools
>
>My Industry Monitors list has a total of 192 titles.
>
>Another company William O'Neil + Co. 197 Industry Groups (tm) also has
a
>list that they call the IBD 197 Industry Groups. IBD is "Investor's
Business
>Daily" a very large newspaper for investors.
>
>Here is a partial example of their list:
>
>IBD 197 Industry Groups
> Banks-Foreign
> Banks-Midwest
> Banks-West/Southwest
> Bldg-Hand Tools
>
>Some of my names are similar but not the same. In a few cases my names
and
>their names are the same. They have 197 industry groups, I have 192
>industry groups.
>
>Is each name in their list copyrighted such that if I have the exact
same
>name in my list I will be violating their copyright? Does a list that
looks
>similar come under copyright protection?
>
>They have recently contacted me with this statement:
>
>The "HGSI Industry Group" list impermissibly copies from IBD's
copyrighted
>industry group list and violates IBD copyright" (HGSI is the acronym
used
>for my product and website HighGrowthStock Investor)
>
>Thank you for any assistance.
>
>Regards,
>George Roberts
>
>
>
>
>
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Visit the CNI-COPYRIGHT e-mail list archive at <https://mail2.cni.org/Lists/CNI-COPYRIGHT/>. Received on Wed Jan 17 2007 - 03:55:00 GMT
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