Re: US Supreme Ct "Feist" Decision

From: Lowell Wilson <lwilson[_at_]charm.net>
Date: Thu, 26 Oct 95 08:11 EDT

At 03:15 PM 10/25/95 -0400, you wrote:

>

> As a non-American, I am not familiar with the "Feist" decision
> concerning ancient/medieval texts published in print. I have now run
> up against a firm planning to use excerpts from our books. Can someone
> supply me with a date/reference for this decision, and any short
> analysis of its meaning and any limitations.

Here's the citation: Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991). If you have access to the Web, a more meaningful citation is

 http://www.law.cornell.edu/supct/classics/499_340v.htm.

As for analysis, I don't think I can do a better job of summarizing than the Court's syllabus writers did. They say:

"(a) Article I, § 8, cl. 8, of the Constitution mandates originality as a prerequisite for copyright

     protection. The constitutional requirement necessitates independent creation plus a modicum of

     creativity. Since facts do not owe their origin to an act of authorship, they are not original and,

     thus, are not copyrightable. Although a compilation of facts may possess the requisite originality

     because the author typically chooses which facts to include, in what order to place them, and

     how to arrange the data so that readers may use them effectively, copyright protection extends

     only to those components of the work that are original to the author, not to the facts themselves.

     This fact/expression dichotomy severely limits the scope of protection in fact-based works. Pp.

     344-351.
(b) The Copyright Act of 1976 and its predecessor, the Copyright Act of 1909, leave no doubt

     that originality is the touchstone of copyright protection in directories and other fact-based

     works. The 1976 Act explains that copyright extends to 'original works of authorship,' 17

     U.S.C. § 102(a), and that there can be no copyright in facts, § 102(b). A compilation is not

     copyrightable per se, but is copyrightable only if its facts have been "selected, coordinated, or

     arranged in such a way that the resulting work as a whole constitutes an original work of

     authorship." § 101 (emphasis added). Thus, the statute envisions that some ways of selecting,

     coordinating, and arranging data are not sufficiently original to trigger copyright protection. Even

     a compilation that is copyrightable receives only limited protection, for the copyright does not

     extend to facts contained in the compilation. § 103(b). Lower courts that adopted a 'sweat of

     the brow' or 'industrious collection' test -- which extended a compilation's copyright protection

     beyond selection and arrangement to the facts themselves -- misconstrued the 1909 Act and

     eschewed the fundamental axiom of copyright law that no one may copyright facts or ideas. Pp.

     351-361."

---

Lowell G. Wilson
Attorney at Law
Ellicott City, Maryland | Telephone: 410-461-8465 | FAX: 410-461-8499 Received on Thu Oct 26 1995 - 12:14:36 GMT