Feist Publications, Inc. v. Rural Telephone Service Co.

FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE CO., INC.

Certiorari to the United States Court of Appeals for the Tenth Circuit.

No. 89-1909. Argued January 9, 1991 — Decided March 27, 1991.

916 F. 2d 718, reversed. Certiorari granted, 498 U. S. 808 (1990).

O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Marshall, Stevens, Scalia, Kennedy, and Souter, JJ., joined. Blackmun, J., concurred in the judgment.

Kyler Knobbe argued the cause and filed briefs for petitioner. James M. Caplinger, Jr., argued the cause and filed a brief for respondent.

The report occupies pages 340 through 364 of volume 499 of the United States Reports. The Reporter's syllabus is printed at pages 340 and 341; the opinion of the Court begins at page 342 and closes the report at page 364, where the Reporter records that Justice Blackmun concurred in the judgment without opinion.

[499 U.S. 340] “Held: Rural's white pages are not entitled to copyright, and therefore Feist's use of them does not constitute infringement. Pp. 344-364.”

[499 U.S. 340] “(a) Article I, § 8, cl. 8, of the Constitution mandates originality as a prerequisite for copyright protection. The constitutional requirement necessitates independent creation plus a modicum of creativity. Since facts do not owe their origin to an act of authorship, they are not original and, thus, are not copyrightable. Although a compilation of facts may possess the requisite originality because the author typically chooses which facts to include, in what order to place them, and how to arrange the data so that readers may use them effectively, copyright protection extends only to those components of the work that are original to the author, not to the facts themselves. This fact/expression dichotomy severely limits the scope of protection in fact-based works. Pp. 344-351.”

[499 U.S. 340] “(b) The Copyright Act of 1976 and its predecessor, the Copyright Act of 1909, leave no doubt that originality is the touchstone of copyright protection in directories and other fact-based works. . . . [499 U.S. 341] A compilation is not copyrightable per se, but is copyrightable only if its facts have been ‘selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.’ § 101 (emphasis added). . . . Lower courts that adopted a ‘sweat of the brow’ or ‘industrious collection’ test — which extended a compilation's copyright protection beyond selection and arrangement to the facts themselves — misconstrued the 1909 Act and eschewed the fundamental axiom of copyright law that no one may copyright facts or ideas. Pp. 351-361.”

[499 U.S. 341] “(c) Rural's white pages do not meet the constitutional or statutory requirements for copyright protection. While Rural has a valid copyright in the directory as a whole because it contains some forward text and some original material in the yellow pages, there is nothing original in Rural's white pages. The raw data are uncopyrightable facts, and the way in which Rural selected, coordinated, and arranged those facts is not original in any way. . . . Moreover, there is nothing remotely creative about arranging names alphabetically in a white pages directory. It is an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course. Pp. 361-364.”

[499 U.S. 342] “This case requires us to clarify the extent of copyright protection available to telephone directory white pages.”

[499 U.S. 344] “This case concerns the interaction of two well-established propositions. The first is that facts are not copyrightable; the other, that compilations of facts generally are. Each of these propositions possesses an impeccable pedigree. That there can be no valid copyright in facts is universally understood. The most fundamental axiom of copyright law is that [499 U.S. 345] ‘[n]o author may copyright his ideas or the facts he narrates.’ Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 556 (1985).”

[499 U.S. 345] “There is an undeniable tension between these two propositions. Many compilations consist of nothing but raw data — i. e., wholly factual information not accompanied by any original written expression. On what basis may one claim a copyright in such a work? Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place. Yet copyright law seems to contemplate that compilations that consist exclusively of facts are potentially within its scope.”

[499 U.S. 345] “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. . . . To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, ‘no matter how crude, humble or obvious’ it might be. . . . Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.”

[499 U.S. 346] “Originality is a constitutional requirement. The source of Congress' power to enact copyright laws is Article I, § 8, cl. 8, of the Constitution, which authorizes Congress to ‘secur[e] for limited Times to Authors . . . the exclusive Right to their respective Writings.’”

[499 U.S. 348] “Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws. . . . Thus, even a directory that contains absolutely no protectible written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement.”

[499 U.S. 348] “This protection is subject to an important limitation. The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. . . . Others may copy the underlying facts from the publication, but not the precise words used to present them.”

[499 U.S. 357] “The statute identifies three distinct elements and requires each to be met for a work to qualify as a copyrightable compilation: (1) the collection and assembly of pre-existing material, facts, or data; (2) the selection, coordination, or arrangement of those materials; and (3) the creation, by virtue of the particular selection, coordination, or arrangement, of an ‘original’ work of authorship.”

[499 U.S. 357] “It is not enough for copyright purposes that an author collects and assembles facts. To satisfy the statutory definition, the work must get over two additional hurdles. In this way, the plain language indicates that not every collection of facts receives copyright protection. Otherwise, there would be a period after ‘data.’”

[499 U.S. 358] “The key to the statutory definition is the second requirement. It instructs courts that, in determining whether a fact-based work is an original work of authorship, they should focus on the manner in which the collected facts have been selected, coordinated, and arranged. This is a straightforward application of the originality requirement. Facts are never original, so the compilation author can claim originality, if at all, only in the way the facts are presented.”

[499 U.S. 358] “Not every selection, coordination, or arrangement will pass muster. This is plain from the statute. It states that, to merit protection, the facts must be selected, coordinated, or arranged ‘in such a way’ as to render the work as a whole original. This implies that some ‘ways’ will trigger copyright, but that others will not.”

[499 U.S. 362] “The selection, coordination, and arrangement of Rural's white pages do not satisfy the minimum constitutional standards for copyright protection. As mentioned at the outset, Rural's white pages are entirely typical. Persons desiring telephone service in Rural's service area fill out an application and Rural issues them a telephone number. In preparing its white pages, Rural simply takes the data provided by its subscribers and lists it alphabetically by surname. The end product is a garden-variety white pages directory, devoid of even the slightest trace of creativity.”

[499 U.S. 362] “Rural's selection of listings could not be more obvious: It publishes the most basic information — name, town, and telephone number — about each person who applies to it for telephone service. This is ‘selection’ of a sort, but it lacks the modicum of creativity necessary to transform mere selection into copyrightable expression. Rural expended sufficient effort [499 U.S. 363] to make the white pages directory useful, but insufficient creativity to make it original.”

[499 U.S. 363] “We conclude that the names, towns, and telephone numbers copied by Feist were not original to Rural and therefore were not protected by the copyright in Rural's combined white and yellow pages directory. As a constitutional matter, copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity. Rural's white pages, limited to basic subscriber information and arranged alphabetically, fall short of the mark.”

[499 U.S. 364] “Because Rural's white pages lack the requisite originality, Feist's use of the listings cannot constitute infringement. This decision should not be construed as demeaning Rural's efforts in compiling its directory, but rather as making clear that copyright rewards originality, not effort.”

[499 U.S. 364] “The judgment of the Court of Appeals is”

[499 U.S. 364] “Reversed.”

[499 U.S. 364] “Justice Blackmun concurs in the judgment.”

Editorial note. This record is a research edition, not a substitute for the official reporter. It reproduces the Reporter of Decisions apparatus and the Court's own text in extended verbatim passages arranged in the Court's own sequence of analysis, each bracketed with the official United States Reports page on which the passage appears. Passages set without quotation marks are Society prose; every quotation mark in this record encloses the Court's or the Reporter's words.

Editorial note. The Court-authored sections of this record are SELECTED EXCERPTS, not the complete opinion. Each such section is headed accordingly, and no section of this record represents a judicial opinion as reproduced in full.

Editorial note. Three limitations are declared. First, the numbered footnotes of the opinion are not reproduced. Second, the Court's historical account of the 1909 and 1976 Acts and of the ‘sweat of the brow’ decisions at pages 349 through 361, and its citation apparatus within the quoted passages, are abridged; every omission inside a quotation is marked by ellipsis. Third, Justice Blackmun concurred in the judgment without writing, so no separate opinion exists to reproduce.

Editorial note. The optical transcription of the digitised bound volume renders some em dashes as hyphens and mis-sets a small number of characters within citation strings. Such obvious typographic and scanning defects have been silently corrected against the surrounding text; no substantive word has been altered, modernised, or paraphrased inside a quotation.

Editorial note. For any purpose requiring the complete official text, including the footnotes, consult the bound volume through the canonical source recorded with this authority.

Editorial note. Rural Telephone Service Company, a certificated public utility, published a typical telephone directory consisting of white pages listing subscribers alphabetically by surname with town and telephone number, together with yellow pages. It obtained the listing data as a by-product of its obligation to provide service. Feist Publications compiled a competing area-wide directory covering 11 telephone service areas in 15 counties. When Rural alone refused to license its listings, Feist used them without consent, verifying and supplementing the entries; some 1,309 of the 46,878 listings in Feist's directory were identical to Rural's, including four fictitious listings that Rural had inserted to detect copying.

Editorial note. The District Court granted summary judgment to Rural, holding telephone directories copyrightable as a matter of settled practice, 663 F. Supp. 214 (D. Kan. 1987), and the Court of Appeals for the Tenth Circuit affirmed in an unpublished opinion, judgment reported at 916 F. 2d 718 (1990). The Supreme Court granted certiorari, 498 U. S. 808 (1990), and reversed.

Editorial note. Rural's white pages were not entitled to copyright protection, and Feist's use of the listings therefore did not infringe. The rule derived has three parts. First, originality — independent creation plus a modicum of creativity — is required by the constitutional terms 'authors' and 'writings' and cannot be dispensed with by statute. Second, facts, whether historical, scientific, biographical, or merely informational, are discovered rather than created and are never original to the compiler. Third, a factual compilation may be copyrighted, but only in respect of the compiler's original selection, coordination, or arrangement, and the protection extends no further; a garden-variety alphabetical listing of all subscribers in a service area exhibits no creativity at all.

Editorial note. Justice O'Connor traced the originality requirement through The Trade-Mark Cases and Burrow-Giles Lithographic Co. v. Sarony, and explained that the sweat-of-the-brow decisions had erred by extending protection beyond the compiler's own contribution to the underlying data, thereby creating a monopoly in facts and defeating the constitutional purpose of promoting the progress of knowledge. She analysed the 1976 Act's definitions of 'compilation' and its treatment of the scope of protection in § 103(b) as codifying, rather than displacing, the originality requirement.

Editorial note. Applying that standard, Rural's selection — every subscriber it was obliged to list — and its arrangement — alphabetical by surname — were mechanical and inevitable. The Court noted in passing that Rural did not truly 'select' at all, since state regulation required the listings. It acknowledged that the result may seem unfair to the compiler, but held that copyright is not a reward for labour and that the remedy lies with Congress.

Editorial note. Feist belongs to the treatise's account of property in information. It marks the boundary of intellectual property in raw data and thereby determines the legal position of databases, directories, indexes, and other factual assemblages under United States law — a position markedly different from the sui generis database protection adopted in the European Union. Read together with International News Service v. Associated Press, it frames the recurring question whether investment in gathering information can be protected at all, and by what body of law: not by copyright in the facts themselves, but at most by contract, by trade secret, or by narrow common-law theories.

Editorial note. Followed. Feist supplies the governing test in the lower courts for the copyrightability of compilations and databases and for the scope of protection in derivative arrangements of factual material. The sweat-of-the-brow line of decisions, including Jeweler's Circular Publishing Co. v. Keystone Publishing Co., 281 F. 83 (2d Cir. 1922), is superseded.

Editorial note. Read with U.S. Const. art. I, § 8, cl. 8, and 17 U.S.C. §§ 101, 102, 103, and the treatise chapters on intellectual property in information and on digital and intangible property.