Tag Archives: originality

Welcome to “day” 2 of class.   Day 1 is here, and the class introduction is here.

In today’s class, we continued our discussion of copyright’s originality requirement – the sine qua non of copyright. These cases all address the distinction between facts (or ideas) and expression. Does it make a difference if the work for which copyright protection is claimed is primarily factual in nature? If so, what is the difference? What is and is not protected? This differential treatment by copyright law of facts on one hand and expression on the other is crucial. We will see it again in greater detail when we look at the infringement analysis in more detail. In fact, our third case for today is actually framed as an infringement determination.

In short, facts are not protected by copyright. Thus, you can copy facts from someone else. However, a compilation of facts may be protected if there is sufficient originality in the selection and arrangement of the facts.  Further, if the “facts” were created rather than discovered (see the CDN case below), those “facts” might be protected.

We discussed three cases today: Feist v. Rural Telephone (oral arguments), CDN Inc v. Kapes, and CBS v. Nash.

Feist v. Rural Telephone

Feist is the go to case for the basic rule for what constitutes originality in copyright. It’s the case other courts cite.

The case surrounded a dispute over the white pages. Anyone remember those? Well back in the olden days of the 1990’s, in addition to having to walk uphill in the snow both ways to get to school, telephone books were big business. There was money in them there pages. Specifically in the advertisements.

But those advertisements were only valuable if people used the telephone book, and in order to insure that, the books needed to be complete.

Feist was not a telephone service provider; they were merely a publisher. Feist produced a set of telephone books that included as a part of its coverage area the region in which Rural Telephone provided service. As a part of providing that telephone service, Rural assigned phone numbers. They used their knowledge of those numbers to produce telephone books (in which they sold ads).

Feist entered into license agreements with a number of other telephone providers in the area to obtain telephone number data. Of all the providers, only Rural refused to license their data to Feist. Because Feist’s telephone book would be worth less without Rural’s numbers, Feist copied them out of Rural’s own telephone book (including several completely fake entries included to detect just such copying).

At the time, this type of dispute was not isolated to the plains of Kansas. Similar fights between traditional telephone companies and upstart publishers were being litigated elsewhere.

The fight was over whether compilations such as telephone books were protected by copyright. It pitted two competing theories of copyrightability. The first stated that if the creator of the work had put enough labor into creating the work, then it should be protected by copyright. The “sweat of the brow” should be rewarded and incentivized. After all, why would anyone invest the time and resources into gathering data into a usable compilation if a stranger could simply copy the data and undersell the original creator. The second theory said that a work could only be protected by copyright if the work itself contained enough originality. The Court accepted the second theory while explicitly rejecting the “sweat of the brow” theory.

The court started its analysis by finding the originality requirement to spring from the words in the copyright and patent clause of the constitution. In that clause, Congress was empowered to grant rights to “authors” in their “writings”. It is from those two words that the Court drew their definition of the originality required:

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.

As I mentioned last week when I set forth the above blacklettter definition of originality, you have to be careful not to read too much into “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. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable.

In applying this standard to compilations of facts (such as a telephone book), the Court said that

It is this bedrock principle of copyright that mandates the law’s seemingly disparate treatment of facts and factual compilations. “No one may claim originality as to facts.” This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence.

They continued the analysis, however, by saying that compilations of uncopyrightable facts could have sufficient originality to obtain copyright protection. Remember the bar for a minimum level of creativity is very low. The selection and arrangement of the facts within the compilation could be enough to satisfy the originality requirement.

They concluded that simply alphabetizing names with their accompanying phone numbers was insufficient to meet that low bar. (To show how low the bar is, at least one later case held that the selection and arrangement of telephone numbers into different categorizations in the yellow pages was sufficient to meet the originality requirement.)

CDN Inc v. Kapes

In CDN, the court concluded that the “facts” in question were themselves sufficiently original to be copyright protected. Note that I keep putting “facts” in quotation marks when I’m talking about CDN. CDN, or Coin Dealers Newsletter, published a weekly list of wholesale collectible coin prices. These prices certainly look like “facts” and thus the sort of thing that is not protected.

Discoverable facts, like ideas, are not copyrightable. But compilations of facts are copyrightable even where the underlying facts are not. The distinction between facts and non-facts, and between discovery and creation, lies at the heart of this case. The essential ingredient present in creations, but absent in facts, is originality, “the sine qua non of copyright.” Subject matter created by and original to the author merits copyright protection. Items not original to the author, i.e., not the product of his creativity, are facts and not copyrightable. In Feist, the issue was whether white page listings of telephone numbers qualified for copyright protection as compilations. The Court held that they did not. In order to warrant protection, compilations and other works must contain a minimal amount of originality or creativity. The white page listings, which included everyone within a geographical area and were arranged alphabetically, did not. Thus they could be copied in their entirety despite the time and effort spent to compile them.

However, in this case the wholesale prices published by CDN each week were created, not merely discovered.

Here, the district court, explicitly referencing Feist, held that the prices in CDN’s guides are not facts, they are “wholly the product of [CDN’s] creativity. The evidence indicates that the plaintiff uses its considerable expertise and judgment to determine how a multitude of variable factors impact upon available bid and ask price data. And it is this creative process which ultimately gives rise to the Plaintiff’s `best guess’ as to what the current `bid’ and `ask’ prices should be. As such, the Court finds that these prices were created, not discovered.”

The court emphasized that it was not the work that CDN put into generating the prices. Instead, the process used by CDN was sufficient to be that minimal level of creativity set forth by Feist.

Nash v. CBS

If this case were in a Venn diagram, it would sit in the tiny area comprising the intersection of (1) conspiracy theories about John Dillinger and (2) the cheesy 80’s television show, Simon & Simon. You can’t make this stuff up.

History, and Judge Easterbrook, say that

John Dillinger, Public Enemy No. 1, died on July 22, 1934, at the Biograph Theater in Chicago. He emerged from the air conditioned movie palace into as sweltering evening accompanied by two women, one wearing a bright red dress. The “lady in red,” Anna Sage, had agreed to betray his presence for $10,000. Agents of the FBI were waiting. Alerted by Polly Hamilton, the other woman, Dillinger wheeled to fire, but it was too late. A hail of bullets cut him down, his .45 automatic unused. William C. Sullivan, The Bureau 30-33 (1979). Now a national historic site, the Biograph bears a plaque commemorating the event. It still shows movies, and the air conditioning is not better now than in 1934.

Author Jay Robert Nash penned several books arguing that Dillinger was not killed in that shootout. Instead, Nash maintained that Dillinger sent a look-alike to the theater knowing a sting was in place and that the FBI covered that fact up to avoid embarrassment. He pointed to physical differences between the corpse and Dillinger’s known appearance (e.g. a scar on his upper lip, a missing tooth, etc.) as well as other facts such as Dillinger’s father insisting that his son be entombed in concrete before being buried. Nash argued that Dillinger lived many years after that night in Chicago, that he got married and grew old in California.

In 1984, CBA broadcast an episode of Simon & Simon called The Dillinger Print that was based in part on Nash’s premise that Dillinger was still alive. The odd-couple detective brothers were hired to investigate the FBI by the widow of another detective who had been killed while investigating whether Dillinger had not died outside the Biograph Theater. The episode even used as plot elements many of the same alleged discrepancies Nash identified in his books.

So, Nash sued CBS for infringing the copyright in his books. CBS did not rely on arguing that they had not seen his books or even that they had not taken ideas from his books. Instead, they argued that it did not matter if they had taken the ideas from his books because as ideas, they were not protected by copyright. Ideas, or as in this case “facts”, are not protected by copyright. Only expression is protected. Ideas are not original while expression is.

Nash does not portray The Dillinger Dossier and its companion works as fiction, however, which makes all the difference. The inventor of Sherlock Holmes controls that Character’s fate while the copyright lasts; the first person to conclude that Dillinger survived does not get dibs on history. If Dillinger survived, that fact is available to all. Nash’s rights lie in his expression: in his words, in his arrangement of facts (his deployment of narration interspersed with interviews, for example), but not in the naked “truth”. The Dillinger Print does not use any words from The Dillinger Dossier or Nash’s other books; it does not take over any of Nash’s presentation but instead employs a setting of its own invention with new exposition and development. Physical differences between Dillinger and the corpse, planted fingerprints, photographs of Dillinger and other gangsters in the 1930s, these and all the rest are facts as Nash depicts them.

Section 103 of the Copyright Act states: “In no case does copyright protection for an original work . . . extend to any idea, . . . or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Since CBS merely took “facts” or “ideas” from Nash’s book while adding their own overlay of context, story and other expression, CBS has not taken anything protected by copyright.

Welcome to the first “day” of class. I hope that you find this series both interesting and informative. Please keep in mind the caveats I set forth last week. The first of those caveats, that this is a course focused on copyright generally and not copyright for writers, is fully applicable to today’s material. The issues explored in these cases, originality, is not usually an issue for writers.

Today’s class briefly covered the history of copyright from its birth in the Stationer’s Company of 15th century London and its use as a tool for religious censorship to the modern copyright of today as embodied in the Copyright Act of 1976. I will spare you that … for now.

We spent the majority of the class discussing what constitutes an “original work of authorship.” Section 102 of the copyright act says:

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression…

So, asking what is an “original work of authorship” is basically asking “What gets copyright protection?” Sure, there’s the “fixed in any tangible medium of expression” part, but that is not the difficult part to satisfy.

Accordingly, originality is often said to be “[t]he sine qua non of copyright.”

If you want the short answer, here it is. Originality includes two related concepts. First, the work must be original to the author; in other words, it cannot be copied from another. Second, it must contain at least a modicum of creativity. This is a fairly low hurdle.

We explored the first half of that this week and will look at the second half next week.

To explore that part of the concept of originality and get a better feel for its contours, we read four cases: Burrow Giles Lithographic Co. v. Sarony, Bleistein v. Donaldson Lithographing Co., Meshwerks v. Toyota Motor Sales U.S.A., and Gracen v. Bradford Exchange.

The first two, Burrow Giles and Bleistein, are historic cases from 1884 and 1903 respectively. The latter two are modern cases (2008 and 1983).

Burrow Giles Co. v. Sarony

A photographer, Sarony, sued the lithographer, Burrow Giles, for infringing the copyright in his photograph (titled Oscar Wilde, No. 18). At trial, a jury found that Burrow Giles had infringed Sarony’s rights and rendered $610 in damages. In challenging the result on appeal, Burrow Giles presented two arguments of note.

First, they argued that the constitution did not give Congress the power to enact a copyright statute that included copyright protection for photographs. Protection of copyright and patent subject matter is actually one of the specifically enumerated powers in Article I.

To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

Burrow Giles argued that “writings” did not include photographs, that the copyright statute could not therefore cover photographs, and thus their copying of the photograph was not copyright infringement. However, since the first copyright act passed in 1790 was written by many of the same men who drafted the Constitution and included such media as charts and maps, the Court held that the word “writings” should not be limited to the literal meaning asserted by Burrow Giles.

Second, Burrow Giles argued that a photograph, unlike a painting or engraving, did not include an intellectual conception of an author; rather, a photograph was a mere mechanical reproduction of reality. Photographs therefore were not “original.” While the Court left open the possibility that some photographs might not contain sufficient originality to be copyrightable, the photograph in this case did contain sufficient originality.

[I]n regard to the photograph in question, that it is a ‘useful, new, harmonious, characteristic, and graceful picture, and that plaintiff made the same * * * entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit.’

Bleistein v. Donaldson Lithographing Co.

Bleistein involved a lithographic company copying posters created to advertise a traveling circus. The printing of poster advertisements for traveling circuses was actually a pretty big industry in those days. I’m not kidding. Entertainment options were obviously a bit more limited at the end of the 19^th century.

The defendants argued first that advertisements were not protected by copyright and second that the posters were not sufficiently original because the artist who had painted the artwork was attempting to portray what the performers actually looked like.

Though both the trial court and the intermediate appellate court held that advertisements were not protected by copyright, the Supreme Court interpreted the statute more broadly so as to include works of authorship beyond the “fine arts.” Further, they said that it would be dangerous for judges only trained in law to pass aesthetic judgments about whether something was “art.”

With respect to the defendant’s originality argument, the Court said that:

It is obvious also that the plaintiff’s case is not affected by the fact, if it be one, that the pictures represent actual groups — visible things. They seem from the testimony to have been composed from hints or description, not from sight of a performance. But even if they had been drawn from the life, that fact would not deprive them of protection. The opposite proposition would mean that a portrait by Velasquez or Whistler was common property because others might try their hand on the same face. Others are free to copy the original. They are not free to copy the copy. The copy is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible which is one man’s alone. That something he may copyright unless there is a restriction in the words of the act.

Meshwerks v. Toyota Motor Sales U.S.A.

Meshwerks created 3D digital models of Toyota cars to be used in advertising. They argued that they had only licensed Toyota to use the models they created in one television advertising. Therefore, when Toyota used the digital models in additional advertising, they went beyond the scope of copyright permissions Meshwerks had granted them.

Toyota argued in response that because the digital models were intended to be exact representations of their cars the models were not “original” in the copyright sense.

The case thus focused “on the question whether Meshwerks’ models qualify as independent creations, as opposed to copies of Toyota’s handiwork.”

The court said that this particular type of “art” was certainly capable of being original enough to gain copyright protection but that these particular digital models did not contain enough originality. They based that conclusion on both an assessment of the models themselves and their creators’ intent when making them.

Key to our evaluation of this case is the fact that Meshwerks’ digital wireframe computer models depict Toyota’s vehicles without any individualizing features: they are untouched by a digital paintbrush; they are not depicted in front of a palm tree, whizzing down the open road, or climbing up a mountainside. Put another way, Meshwerks’ models depict nothing more than unadorned Toyota vehicles – the car as car. And the unequivocal lesson from Feist is that works are not copyrightable to the extent they do not involve any expression apart from the raw facts in the world. As Professor Nimmer has commented in connection with the predecessor technology of photography, “[a]s applied to a photograph of a pre-existing product, that bedrock principle [of originality] means that the photographer manifestly cannot claim to have originated the matter depicted therein . . . . The upshot is that the photographer is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.” It seems to us that exactly the same holds true with the digital medium now before us: the facts in this case unambiguously show that Meshwerks did not make any decisions regarding lighting, shading, the background in front of which a vehicle would be posed, the angle at which to pose it, or the like – in short, its models reflect none of the decisions that can make depictions of things or facts in the world, whether Oscar Wilde or a Toyota Camry, new expressions subject to copyright protection.

The court acknowledged that the creation of the digital models had taken tremendous skill and required the investment of a great deal of work; however, labor and skill was not the measure of originality.

In the case before us, there is no doubt that transposing the physical appearances of Toyota’s vehicles from three dimensions to two, such that computer-screen images accurately reflect Toyota’s products, was labor intensive and required a great amount of skill. But because the end-results were unadorned images of Toyota’s vehicles, the appearances of which do not owe their origins to Meshwerks, we are unable to reward that skill, effort, and labor with copyright protection.

The court also said that authorial intent can also shed light on the originality, or lack thereof, contained in a work. Because Meshwerks had created the models with the intent of creating as exact a series of replicas as they could, the resultant works were not original.

Gracen v. Bradford Exchange

Gracen is both a strange and sad case. It is strange in that the level of originality required of the court for copyright protection seems much higher than that seen in most other cases. It is sad in that the artist not only lost the case but also suffered in other ways besides losing her quest to be paid. She lost her job, was maligned by the defendants, and never even got her original painting back.

With respect to originality, the case essentially leaves us with uncertainty about the standard of originality required for derivative works to receive copyright protection. Derivative works are works of authorship based on a pre-existing work. In this case, Gracen’s painting of Dorothy on the gold brick road was based on the images in the movie starring Judy Garland.

The court held that derivative works must contain more originality than non-derivative works to receive copyright protection, but it is unclear whether the court’s reasoning would be followed by other courts faced with different facts.