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Feist Publications v. Rural Telephone Service

    Brief Fact Summary. When Feist Publications compiled its own white pages, it took 1,309 listings from Rural Telephone Service’s (Plaintiff) white pages and was then sued by Plaintiff for copyright infringement.
    Synopsis of Rule of Law. A work must be original and possess at least some small degree of creativity in order to be copyrightable.

    Facts. Rural Telephone Service (Plaintiff) in northwest Kansas provided a certified telephone service and published a typical telephone directory as a condition of its monopoly franchise.The white pages listed alphabetically the names, towns, and telephone numbers of Plaintiff’s subscribers. Feist Publications (Defendant) was a publishing company specializing in area-wide telephone directories. The Defendant’s directory, the subject of this litigation, contained 46,878 white pages listings, compared to Plaintiff’s listings of approximately 7,700.  Defendant approached the 11 northwest Kansas telephone companies and offered to pay for the right to use their respective white pages listings.  When only Plaintiff refused to license its listings, Defendant used them without the consent of Plaintiff.  A typical Feist (Defendant) listing included each person’s street address, while most of Rural’s (Plaintiff) did not.  Defendant’s 1983 directory of 46,878 listings contained 1,309 listings that were identical to listings in Plaintiff’s white pages.  Plaintiff sued for copyright infringement.  The district court granted summary judgment to Plaintiff, and the court of appeals affirmed. Defendant appealed.

    Issue. Must a work be original and possess at least some small degree of creativity in order to be copyrightable?

    Held. (O’Connor, J.) Yes.  A work must be original and possess at least some small degree of creativity in order to be copyrightable.  This case involves the interaction of two well-established propositions.  The first is that facts are not copyrightable; the other, that compilations of facts generally are.  There is obvious tension between these two propositions.  The key to resolving the tension lies in understanding why facts are not copyrightable.  Facts do not owe their origin to an act of authorship, therefore, no one may claim originality to them.  On the other hand, compilations of facts may possess the required originality.  Compilations were expressly mentioned in the Copyright Acts of 1909 and 1976.  Even a directory containing absolutely no protectable written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement.  If the selection and arrangement are original, these elements of the work are eligible for copyright protection.  No matter how original the format, though, the facts themselves do not become original through association.  There is no doubt that Defendant took from the white pages of Plaintiff’s directory a significant amount of factual information.  The remaining question is whether Plaintiff selected, coordinated, or arranged these uncopyrightable facts in an original way.  It did not.  Plaintiff simply took the data provided by its subscribers and listed it alphabetically by surname, which exhibits absolutely no creativity.  Plaintiff gave enough effort to make the white pages directory useful, but not enough creativity to make it original.  Therefore, since Plaintiff’s white pages lack originality as required, Defendant’s use of the listings cannot constitute infringement.  Copyright rewards originality, not effort.  Reversed.

    Discussion. As stated by the Supreme Court, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information expressed by a work.  This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship.  As applied to a factual compilation, assuming the absence of original written expression, only the compiler’s selection and arrangement may be protected; the facts themselves may be copied at will.  This is the way copyright advances the progress of science and art by encouraging creativity with exclusive rights rewarded for the original creation.


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