Comment on Feist

On February 5, 1997, David Crosby wrote (in part):
>
> The other issue that bothered me [in Feist] was that there was no
> explanation of why the four fake names which were copied by Feist did
> not constitute infringement at least for that added material. This is
> unfortunate because it undermines what I am told is an old map maker's
> trick of putting inserting a bridge or other feature that doesn't exist
> in a map to detect copying. For this reason, I would suggest that even
> copyright owner had in inserted some extra material, one could argue
> under Feist that this is permitted.

I agree that it is unfortunate that the Court did not address this point. One possible rationale for the result is a copyright misue or unclean hands argument, i.e., that by "hiding" copyrighted material (four fake names) in its directory, Rural is improperly attempting to use its copyright on the fake names to acquire a monopoly to the unprotected names (facts) which Feist is otherwise permitted to copy.

     Even assuming that such a holding is implicit in Feist, however, it does not completely eliminate the utility of inserting "seeds" to spot copying. Such seeds can still be used to prove the defendant's access to the copyrighted material, which is necessary to raise an inference of copying if that issue is contested. And, of course, if it found that the selection, coordination or arrangement of preexisting material is sufficiently original, the presence of seeds in the allegedly infringing work contributes to substantial (or near-verbatim) similarity.

Tyler T. Ochoa
Assistant Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Fri Feb 07 1997 - 23:52:21 GMT