Re: Is creating an index for a book an infringement of the author's copyright?

On 3/8/98, Joseph Riolo <riolo[_at_]voicenet.com> wrote:
>
> I think that this requires more explanation. I do not believe that my
> situation is in any way like anything that the abstracters are facing.
> If an abstracter is quoting from the work, he is deriving from the work
> and requires a permission from the author of the work. On the other
> hand, if the abstrater is using his own words to summarize the basic
> ideas in the work, he is doing fine and does not require permission
> from the author. In my situation, I do not plan to quote any phrase,
> sentence, paragraph, or anything from the work. I will list key words
> with the page numbers where they are found. How can the index be an
> abstraction or a derivative work?
>
> I need to mention that I am not a lawyer and could be very wrong.

It may be worth mentioning that it's possible to be a lawyer and STILL be very wrong.

It seems to me that in most circumstances an index would be a separately copyrightable work, and not a derivative work of the work indexed.

My circuitous(?) reasoning:

17 USC 112 defines one of the categories of "works made for hire" as "Supplementary works". Clearly, Suplementary works are, in principle, copyrightable, since "works made for hire" are copyrightable.

In turn, supplementary works are defined as including indexes: a ``supplementary work'' is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendices, and indexes, and an ``instructional text'' is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities." Id.

Thus, if a particular index was created with a modicum of originality (and not merely by rote, as, for example, a computer generated index to each and every word appearing in the indexed work, arranged alphabetically), it would seem that an index is independently copyrightable.

Nimmer seems to believe that an index published separately from the underlying work would not infringe the copyright in the underlying work; see section 8.09B, footnote 13 of your copy of Nimmer. With respect to some indexes, Nimmer disagrees with the Register of Copyrights; the disagreement is summarized in Nimmer's footnote:

"Annotations, for example, if published without the material that is the subject of the annotation, would presumably be merely a noninfringing commentary, not a derivative work. The same would seem to be true of an index.

However, the Register of Copyrights has expressed the view that ``an index or abstract so complete and detailed that it could replace the work on which it is based should probably be regarded as an `abridgment' or `condensation', and hence a `derivative work' covered by section 106(a)(2) [now Sec. 106(2)].'' Reg. Supp. Rep., p. 19. One can fully agree with this statement with respect to an abstract, but not as to an index, which by its very nature involves a reordering and rearrangement of the work to which it pertains, and, therefore, does not represent a copying of ``expression.'' See Kipling v. G.P. Putnam's Sons, 120 F. 631 (2d Cir. 1903). See also Sec. 13.03[A][1] infra. In New York Times Co. v. Roxbury Data Interface, Inc., 434 F. Supp. 217 (D.N.J. 1977), defendant's index of plaintiff's work was held to be a fair use. The court nominally relied upon an application of the fair use factors (see Sec. 13.05[A] infra), but further suggested that the mere copying of names from plaintiff's work (together with the pages upon which such names occur) for inclusion in defendant's index did not constitute a reproduction of any copyrightable elements. The reasoning in Roxbury, if not its stated holding, supports the conclusion that an unauthorized index of a copyrighted work does not constitute an infringement of the adaptation right (or of any other right) in such work. The fact that, in Roxbury, the plaintiff's work was itself an index, and that defendant had made an index of an index, should not obscure the principle involved that would have been applicable, regardless of the nature of the plaintiff's work."

So, the situation for indexes which are "so complete and detailed that they could replace the [underlying] work" is dicey. But it seems fairly clear that an index which serves merely as an adjunct to an underlying work is in the clear, either as not a derivative work at all (I think this is the better theory), or as a fair use of the underlying work. It also seems clear that an index is a separately copyrightable entity.

-Ari

Ari Kahan
<akahan[_at_]netcom.com>

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