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

From: Bob Stock <bstock[_at_]ucla.edu>
Date: Tue, 10 Mar 1998 17:35:40 -0800

On 3/9/98, Ari Kahan <akahan[_at_]netcom.com> wrote:
>
> 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.

You meant section 101, not 112, and I agree that supplementary works, including *some* indexes, are *copyrightable*. It doesn't necessarily follow that they will possess the requisite originality to be protected by copyright.

> 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.

I suppose this is true, that the more creative effort that the author of the index puts into the index, the more likely it could be said that the relatively low originality standard is satisfied. But, in my opinion, the majority of the decisionmaking that goes into an index is how comprehensive you want to make it, and I don't see that as much of a creative decision. If you can jump that hurdle, then anyone else's attempt to copy that index would be viewed as an infringement with the usual sliding scale of the more literally they copy the index, the more likely they are to infringe. I think at best we are talking about very thin copyright here, and as the original question wanted to know if the creation of the index would infringe on the underlying work, not whether he would have any rights to the index once it was created, the inquiry seems academic at best.

> 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.

I agree that an index is copyrightable just as anything is copyrightable. I doubt that most typical indexes of books could ever hold a valid copyright.

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Bob Stock <bstock[_at_]ucla.edu>
UCLA School of Law '98
http://www.geocities.com/Paris/1206/

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Received on Wed Mar 11 1998 - 01:34:52 GMT