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

No. 89-1909. Argued January 9, 1991. Decided March 27, 1991. Certiorari to the United States Court of Appeals for the Tenth Circuit. Judgment reversed (916 Federal 2d 718, reversed). Opinion of the Court by Justice O'Connor, in which Chief Justice Rehnquist and Justices White, Marshall, Stevens, Scalia, Kennedy, and Souter joined. Justice Blackmun concurred in the judgment.

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 a much larger region. When Rural refused to license its listings, Feist used them without consent, verifying and supplementing the entries; some 1,309 of the 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, and the Court of Appeals for the Tenth Circuit affirmed on the sweat-of-the-brow rationale. The Supreme Court 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. Applying that standard, Rural's selection — every subscriber it was obliged to list — and its arrangement — alphabetical by surname — were mechanical and inevitable. She acknowledged the result may seem unfair to the compiler, but held that the remedy lies with Congress, since copyright is not a reward for labour but an incentive to authorship.

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.