Sweat of the Brow and Copyright: Feist Publications #iplaw #law #copyright

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Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340 (1991) is a very important copyright case. Copyright exists, not to reward the creator, but to serve the public. The actual issue in the case was the “sweat of the brow” argument. For decades, people were arguing, with varying degrees of success, that when you combine uncopyrightable material, the collection of that material can become copyrightable as a matter of fairness. Justice Sandra Day O’Connor, writing for a unanimous United States Supreme Court (one concurrence), disagreed.

The Facts

Rural Route provided phone services to a local area. They assigned phone numbers to the people in that area and created a phone book. Feist created a regional phone book. Feist wanted to purchase Rural’s phone number list so that they could include that in their regional book. Rural refused, so Feist got one of Rural’s phonebooks and pulled the numbers from there without permission. Rural claimed copyright infringement. Rural conceded that the phone numbers themselves weren’t copyrightable. They’re not creative because Rural can’t choose to publish a wrong phone number in place of the correct one; otherwise, there’s no point to the phone book. Copyright is about choosing one option from among many. Without having the opportunity to choose anything else, you can’t copyright what you’ve made. Choice is always key.

The Holding

[T]he copyright in a factual compilation is thin. . . . It may seem unfair that much of the fruit of the compiler’s labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not ‘some unforeseen byproduct of a statutory scheme.’ It is, rather, ‘the essence of copyright,’ and a constitutional requirement.

No matter how much work it took, if each individual unit of the collection is not copyrightable and independent from the others, then neither is the collection.

The Tension

You can’t copyright a single word because, in addition to lacking a minimum level of creativity, doing so would remove the word from your native language, which in turn would eventually (and absurdly) result in no one being permitted to say anything. Collections of uncopyrightable elements are not copyrightable, but aren’t copyrightable sentences merely a collection of single words not separately copyrightable? If the sentence isn’t copyrightable, then aren’t paragraphs merely a collection of uncopyrightable sentences? What’s the difference between these cases?

“The key to resolving the tension lies in understanding why facts are not copyrightable. The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.”

“Independence” is the difference. Each phone number is independent of the others. That is, you don’t need to know Fred’s telephone number to understand Joe’s telephone number. Even though they exist in the same collection, they’re actually independent of one another. If Fred’s telephone number is missing from the phone book, I can still use it to contact Joe. However, when you string together a series of uncopyrightable words into a paragraph of text, they combine to tell a story in a way that phone numbers do not. Each of the words in this post are uncopyrightable, but they’re inseparable for me to make my point, so as long as they collectively rise to the minimum required level of creativity, they’re copyrighted.

Note well, though, that the line between insufficiently creative and creative isn’t clear. Is a single sentence copyrightable, or is an entire paragraph (or more) required? Cases turn on their specific facts, so the best we have are these guidelines. The point of Feist, however, is that hard work does not, by itself, transform uncopyrightable work into copyrightable work.

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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with First Class Title, Inc., a Maryland title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.