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Supreme Court Narrows Copyright Protection for Factual Compilations (Feist v. Rural Telephone)

April 1991

Long time readers of our newsletter may recall that in our June 1987 issue we published an article discussing the various approaches the courts have taken in analyzing whether copyright protection is appropriate for compilations of factual information, such as telephone listings and computer databases. We noted that this important area of copyright law was characterized by two lines of cases, in apparent conflict with each other, dating back as far as the 1920’s.

In evaluating copyright protection for compilations, some courts have focused on originality, and held that a factual compilation was protectible only if it was “selected, coordinated or arranged” in such a way that the resulting work constituted an original work of authorship. Other courts developed the so-called “sweat of the brow” doctrine, holding that copyright for a compilation was a reward for the hard work that went into compiling the facts, regardless of originality of selection and arrangement. The courts which followed the “sweat of the brow” test were willing to give the authors of compilations a proprietary interest in facts, and to require later authors to engage in independent research rather than rely upon the facts contained in prior copyrighted works.

In Feist Publications v. Rural Telephone Service Company , the Supreme Court recently put to rest the “sweat of the brow” doctrine, holding that originality is a sine qua non of copyright law, regardless of the author’s efforts in collecting and assembling facts.

The facts of the case were as follows. Rural is a Kansas public utility which publishes a telephone directory listing the name, town and telephone number of each of its local subscribers. Feist is a publisher specializing in wide-area telephone directories, covering larger geographic areas than public utility directories. Feist compiled a directory for the area surrounding and including the area covered by Rural’s directory, obtaining most of its information by licensing listings from other local telephone companies. Rural, however, refused to license its listings to Feist. Feist nevertheless used the white pages section of the Rural directory as the basis for part of its listings.

Rural sued Feist for copyright infringement, and both the federal trial court and court of appeals held that although Rural’s telephone books were compilations of fact with little or no originality in their selection or arrangement, they were protected by copyright law; accordingly, Feist had infringed Rural’s copyrights.

The Supreme Court reversed the lower court decisions, emphasizing that originality — independent creation with some minimal degree of creativity — is a constitutional requirement for copyright protection. Facts, the Court noted, are not “created” but only “discovered,” and therefore cannot be protected by copyright law. A compilation of facts may possess the required originality and creativity to receive copyright protection, but the originality derives solely from the author’s selection of what facts to include and the manner in which they are arranged. The underlying facts, no matter how much effort goes into their collection, are not entitled to protection. As the Court noted, “facts are never original, so the compilation author can claim originality, if at all, only in the way the facts are presented.”

The Supreme Court completely rejected the “sweat of the brow” test, stating that the courts which had applied such a doctrine had misunderstood the law and “flouted basic copyright principles.”

The Court found that the “bits of information” contained in Rural’s directory are uncopyrightable facts. Moreover, Rural’s arrangement of the data was dictated by the identities of its subscribers and the need for alphabetization, making it “devoid of even the slightest trace of creativity,” and thereby depriving Rural of any basis for copyright protection based on its selection and arrangement of the information. Feist was free to copy or make other use of this information as it wished.

TLB Comment : The Feist case is the culmination of a gradual trend in copyright law; in recent years, fewer and fewer courts have been willing to protect compilations solely under the “sweat of the brow” doctrine.

It is clear that this decision has implications far beyond the particular subject matter of the case, and applies to all factual compilations, regardless of their medium. Some of the most obvious implications are in the area of computer databases. Take, for example, Lotus’s recently abandoned CD-ROM database product, “Lotus Marketplace: Households,” which was to have provided information on demographics and prior purchasing behavior for millions of Americans. Under the Feist decision, Lotus would have had only a weak (if any) claim to copyright protection for this work. At the very least, other companies would have been free to copy the facts contained in the database, so long as they did not copy Lotus’s arrangement of these facts.

The Feist decision leaves companies with factual compilations that may not be fully protectible under copyright law free to protect their works by means of license agreements which prohibit licensees from copying. However, as large CD-ROM data compilations follow the seemingly inevitable evolution of all software, from high priced, individually licensed products to mass market commodities subject only to shrink-wrap licenses (whose enforceability is highly questionable), even this form of protection may soon prove inadequate.