Re: Comment on Feist

On Feb. 12, David Crosby responded to my e-mail as follows:
> >
> > 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.
>
> But on a more fundamental level, the telephone listing represented
> combination of factual and fictional elements. So what you are saying
> is that there is no protection for factual information, no matter how
> it is organized and that the work includes a combination of factual and
> fictional elements, the author loses the rights to fictional elements
> because of the combination.

Not quite. There is protection for the compilation as a whole if the organization is original. As for the copyright misuse argument, (1) I just threw it out as a possible theory; (2) if it were accepted, I would impose a limitation that the right to the fictional elements is lost only BECAUSE OF the misrepresentation of those elements as factual. If it is clear or it can be ascertained without unreasonable effort which elements are original, they remain protected.

> I have trouble reconciling this position with the position that maps
> are copyrightable. As recall from law school, the way this conclusion
> was verified was based on the facts that after the first copyright
> acts were passed, the framers permitted maps to be registered. So,
> from Feist it follows that the more visually accurate a map is (and
> less creative in the depiction), the less protectable it is.

That is one of the potential consequences of Feist. However, subsequent map cases have justified continued protection for maps, on the ground that there is considerable creativity (and hence originality) involved the in the selection of which information will be depicted (beyond "all of the streets" for a street map), in choosing the graphic elements used to depict that information, arrangement of labels, colors, etc. In other words, the typical map contains a lot more originality and creativity than the typical white pages.

> What about an aerial photo? Could I get away with arguing that most
> of the "creative choices" of the photographer were functional:
> The exposure settings (f-stop and shutter speed) are determine by an
> exposure meter - maybe the camera had an automatic setting?
> The point of view - essentially down, dictated by gravity, was it
> picked at random? Is this more or less creative than the four fake
> names?

If the process is completely automated, so that there is no human involvement beyond the initial programming of the satellite, then I think this is a non-frivolous argument (except gravity doesn't prevent a person from taking taking a photo "up" instead of "down"). Obviously, the more human involvement there is in terms of selection and arrangement, the more "original" it becomes. I am inclined to doubt that this would be a successful argument, but in this age of automated and computer-aided creation, such arguments will have to be addressed in the future.

> > 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.
>
> In my opinion, the essence of copyright is copying. It is a means to
> an end. To promote the progress of science by preventing copying. The
> listing facilitated communication, a noble cause in the age of the
> information super highway. To the extent that fake names were copied,
> Fiest should be liable or the court should have at least provided an
> analysis that concluded that the amount copied was insignificant.

As I said before, I agree that the court SHOULD have addressed the issue, and I think that the conclusion that the four names copied were insignificant is a reasonable one. I merely suggested a potential alternative argument.

Tyler T. Ochoa
Assistant Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Fri Feb 14 1997 - 22:02:11 GMT