Copyright Protection of Genealogical Works is Limited to Non-Existent
Implications of the Feist Decision by the Supreme Court
On Copyright Protection of Genealogical Works
Feist came about because the Supreme Court wanted to clarify the law regarding compilations of facts, particularly to get rid of the concept that authors could gain copyright protection for their work under the "sweat of the brow" concept. This concept had been adopted by lower courts and the Supreme Court wanted to return these courts back to the law, which allows no such protection; and for good reason.Why Should Facts Not Be Given Copyright Protection?
The "sweat of the brow" theory is that "I did the work, I own the facts". The Supreme Court made it clear that facts are never copyrightable in any instance... and set the parameters by which a compilation of facts could be offered copyright protection... and made clear that protection only extended to the compilation, not to the facts themselves. The court made it clear that a discoverer or compiler of facts does not "own" them and they are not subject to copyright protection.
Underlying this ruling is the reason for not giving copyright protection to facts, which is: that the advantages to society for the ability to exchange factual information freely outweighs the need to give protection to a compiler, or discoverer, of facts.
This applies to the exchange of scientific, educational, historical, and other information.
Within a genealogical context, the concept is that the discoverer of a genealogical fact (ie the discoverer of a relationship of one person with another or of a birth record in the dusty corner of an attic) is not entitled to lockup "ownership" of this fact so that others may not use it. For example, a historical writer cannot "lockup" the names and dates of battles of World War II by simply being the first to list them in a published work.
To extend copyright protection to facts would impede advancement in the sciences and arts, including genealogy. As an example, publication of genealogical works would be impeded because any genealogical work being published could technically be in violation of numerous copyrights of other works. A publisher of an agnate genealogy of a given immigrant could "lockup" the information presented for the author's life plus 75 years.
The Supreme Court has made it clear that because of this concept, copyright protection, in the case of compilations of facts, may extend to the overall compilation, if it rises to the level of a "creative" act; but never extends to the facts themselves.
To quote the Supreme Court:"This Court has long recognized that the fact/expression dichotomy limits severely the scope of protection in fact-based works. More than a century ago, the Court observed: "The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book." Baker v. Selden, 101 U.S. 99, 103 (1880). We reiterated this point in Harper & Row...."
The Supreme Court's decision by O'Connor spent over half of the forward part of the opinion explaining why facts can't be copyrighted and why "sweat of the brow" was never an acceptable rule of law. It then went onto distinguish between facts and factual compilations (the facts/expression dichotomy).What Were the Facts in Feist?
It correspondingly explained that even if the plaintiff were to obtain copyright protection, it wouldn't win much, as facts can't be copyrighted... but, the court did not clearly setout exactly how a compilation of facts could be infringed - ie exactly and precisely what can't be copied, and in what manner, from a factual compilation. It simply limited it by saying: "As applied to a factual compilation, assuming the absence of original written expression, only the compiler's selection and arrangement may be protected; the raw facts may be copied at will."
It sidestepped the issue of just what protection is given to a compilation of facts by coming to the conclusion in the end that the alphabetical arrangement of the facts in the Feist case was not a copyrightable arrangement (ie had not "risen" to the level of "creativity of the author") and that Feist had not infringed on a copyright of Rural, because Rural had no protection for its white pages. The Court did not rule on the yellow pages. (However, subsequent opionions by lower courts have held that yellow pages also do not enjoy copyright protection.)
The plaintiff, Rural Telephone Service Company, Inc., published a phone book. Besides being a revenue raiser (yellow pages), it was also a statutory requirement of the state (white pages.) Feist Publications, Inc. was a competitor in the area of telephone directories, specializing in area phone books. Feist approached Rural to obtain their white page directory and use it in Feist's directory. Rural refused. Feist then took the data anyway. It added addresses to some entries, but many entries, consisting of names and phone numbers were identical. The facts copied were a significant portion of Rural's book and about 13% of Feist's book. Both directories alphabetically arranged their entries.What Gives a Compilation of Facts Copyright Protection?
The Feist Decision relates: "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. "
"[T]his tripartite conjunctive structure is self-evident, and should be assumed to 'accurately express the legislative purpose.' " Patry 51, quoting Mills Music, 469 U.S., at 164, 105 S.Ct., at 645."
It is interesting that the court refers to using the conjunctive "or" between 2 and 3, whereas for a portion of the text of the decision, it referred to these three elements using the conjunction: "and". The difference between the two would be quite significant, obviously.
Facts in a genealogical work include: names of people - living or dead, dates and places of events, occupations, and relationships between people; as well as events and dates that a person were a part of (ie a war battle.)What does Selection in a Genealogical Work Mean?
Theories come under protected expression, but if a person accepts a theory as fact, a copyist can transform the theory itself to a fact. The text of the argument giving the theory will most likely be considered "expression" and come under the "fair use" rules, when comparing two works.
That certain facts may be erroneous is an irrelevant issue in developing an infringement case. "Ringers", ie deliberately false facts inserted to detect copying, only serve as evidence of the source for the accused work. In other words, one can't argue the ringer is a protected expression, not an unprotected fact, and proceed from there to argue stealing of an expression. Rural used "ringers" in its listing, which were found in Feist's directory. The Supreme Court mentioned that fact once in passing and never referred to it again in their opinion.
Selection could include all people who lived in an area, or the descendants of ancestor, or the ancestors of a single person, or all who possessed a given name. It could also mean all people who lived at a certain period of time, or met a criteria as to time (ie The Great Migration Begins includes sketches on all immigrants to New England before Dec 31, 1633 and Torrey's New England Marriages Before 1700 include all marriages in New England before 1700). A descendant register report might follow descendants of females only one generation, or may follow both male and female descendants as far as possible.What Does Coordination in a Genealogical Work Mean?
Coordination is not specifically defined by the court. It would appear it has to do with how the author has shown inter-relationships of one fact to another within the work. Examples might be: the visual presentation of boxes in a tree format, or a numbering system of a register report.
It is also logical that an index may be part of a coordination. But a strictly alphabetical index is what the white pages are, which are unprotected by copyright.
Arrangements of genealogical works can include: descendant register reports, outline descendant reports, ancestor register reports, ahnentafels, alphabetical lists, trees, and many versions of tabular reports, including alphabetical lists with spouses and so on.What is an Original Selection, Coordination or Arrangement?
Arrangements of many of the "typical" genealogy reports can be accomplished by oneself, usually in a word processor, or from within a genealogy program. If done by oneself, one may follow "general" practices or make their own original changes to "typical" arrangements. Users of computer software are often given options to add this or add that, or change the presentation from "this way" to "that way".
The term "arrangement" can include the framework at different levels. At a macro level, it may mean the "outline" of the way the work is presented, as a whole. At a micro level, it may mean the way individual facts about a single person are presented.
At the micro level, as an example, Torrey's New England Marriages Before 1700 uses a unique order of presentation of data and certain "shorthand" inside of each entry. Once one reads the forward and understands the "shorthand" and implicit meanings of the way this data is arranged, one realizes it conveys more in less space than if words were used. The Great Migration Begins has a uniform outline for each of its sketches, which as far as I've seen is unique among genealogical presentations.
Arrangement could also include physicalities, such as margins, indentations, etc, but it is doubtful these "housekeeping" items are what the Supreme Court had in mind when it called a creative "arrangement" a feature that a work must possess to obtain copyright protection. Copying of these features of another's work, however, would not help a second work's case
This is perhaps the most difficult concept to grasp, and undoubtedly will be the area in which the most diversity will occur among the courts, until another "landmark" case breaks ground in this area.
In my opinion, the Supreme Court has let us down in their drafting of this part of the opinion. In one instance, they say that it doesn't take "much" to be "original" - which, of course, raises the question why there is a criteria if it doesn't take "much".
The Court makes clear that original does not mean unique. It also doesn't have anything to do with usefulnesss or functionality. The database can be creative and useless and be protected; or, conversely, be useful but not creative and not be protected.
It also presents no information vis a vis the three requirements "selection, coordination, or arrangement" and their relationship to each other... since the conjunctive "or" is the connecting link (except for one paragraph which uses "and"). Does that make all three ingredients equal and if any one of the three is met, then protection follows? It would appear not, as the Court focused on the arrangement of Rural's white pages, and not its selection (only records from the community served.. which is a definite restrictive selection.), and never mentioned coordination. In one sense, it would seem coordination was achieved, as one would think an alphabetical index provides coordination. On the other hand, the index should be considered expression and not a fact. An alphabetical list would appear to be automatically "coordinated". They appeared to ignore both "selection" and "coordination" and focused only on "arrangement" in their rebutting protection to the white page directory.
This is the part of the decision dealing with this issue:"As mentioned, originality is not a stringent standard; it does not require that acts be presented in an innovative or surprising way. It is equally true, however, that the selection and arrangement of facts cannot be so mechanical or routine as to require no creativity whatsoever. The standard of originality is low, but it does exist. See Patterson & Joyce 760, n. 144 ("While this requirement is sometimes characterized as modest, or a low threshold, it is not without effect") (internal quotation marks omitted; citations omitted). As this Court has explained, the Constitution mandates some minimal degree of creativity, see The Trade-Mark Cases, 100 U.S., at 94; and an author who claims infringement must prove "the existence of ... intellectual production, of thought, and conception." Burrow-Giles, supra, 111 U.S., at 59-60, 4 S.Ct., at 281-282."
Every genealogical work is different and must be viewed individually. It should be noted that uniqueness is not a criteria. The court ruled that an alphabetical arrangement, and nothing more, did not meet the "creativity" criteria in Feist. Presumably this would also apply to strictly chronological arrangements. The amount of work to accomplish the compilation is clearly not a criteria. It should also be noted that lawyers on either side can become very creative in defending their client's position.What Then is Not Infringement?
But, from a general point of view, the following would appear to be examples that are NOT be copyrightable works:Cemetery transcription from walk-around, listed as "they lay"The following would move closer to being "creative" and move closer to being a copyrightable compilation of facts:
Cemetery transcription in simple alphabetical order.
Transcription of vital records, as they appear in the original records.Transcription of marriage records, organized in a "grooms" index and a "bride's" index.Perhaps the one largest area of concern in this issue is using the formats already extant in genealogy software, or web page software. It could be conceivably argued that a) the author had choices of many such types of software and used creativity to select one, or b) the author had available various choices in the presentation of that particular format, within that software, and making those choices raised the "creativity" in that selection, coordination or arrangement" to the necessary level of "creativity" to enable copyright protection to extend to the compilation of facts.
Of course, a lawyer for the defendant would argue that a) there is nothing creative about using a "canned" presentation and b) the author of the work didn't create that presentation, the software author did. Since the author of the work wasn't the creative force behind the presentation, he shouldn't be able to claim his "creativity" led to the "creativity" that may lay within the compilation, so as to enable the author to claim copyright for the work.
Every case is different and must be determined on its own merits. The first determination that would be made in the assertion of infringement is whether or not the plaintiff really had a copyrightable compilation. Which, as is shown above, is not automatic, and certainly does not come about because one puts a copyright symbol in their work. Things are never as simple as they seem. So, assuming the first work is a factual compilation, what, then, can be taken?Strategies of Factual Compilers
The Court offered no guidance in this area at all, only saying that copyright of the compilation, if successful, does not extend to the facts themselves and then going on to say that, in this case, the compilation was not protected.
It would seem undeniable that a "few" facts extracted from a work and blended into another's work that contained a different selection of individuals would clearly not be a violation. In other words, a person should be able to extract the factual data concerning 30 of his ancestors from 30 sketches out of, say, 700 sketches in The Great Migration Begins; input those facts into a database containing several hundred different people not found in that book; and publish without any fear whatsoever of copyright infringement.
There are two issues that could arise, however, that would cause interesting arguments in a courtroom:1) Since the "arrangement" does not have to unique, can a set of facts be extracted from a compilation that achieved copyright status and be set forth in the second work IN THE SAME FORMAT?The first question is significant because there are certain arrangements that are "standard" for genealogical works, the most popular of which is the use of the register format, usually in terms of a descendant ordered register report, although ancestral ordered register reports are becoming more common.
2) Is there any form of proportionality that applies to copying from a compiled set of facts that achieves the status of copyright protection.Although it would benefit the defendant to show that the second work was completely different in selection, coordination or arrangement; there are simply times when the descendant register report is the report of choice by the author. Surely the Supreme Court didn't mean to say that facts obtained from a descendant ordered register can't be used in any other register reports, but can be used in any other presentation format. Especially when the selection in the two works is different.
A good illustration of this are two genealogies with which I am familiar. Both are of the descendants of two separate Puritan immigrants to New England in the 1600's. One genealogy has a daughter of one immigrant who married a son of the other immigrant. The genealogy of the immigrant with the son predated the genealogy of the genealogy of the immigrant with the daughter. Let us assume, for purposes of discussion of this issue, that the first genealogy met the requirement for extending copyright protection to that compilation. The author of the genealogy of the immigrant whose daughter married the son then "lifted" the descendants of that daughter (eg a "vertical" slicing of a branch) from the first genealogy (ie descendants of her husband) and placed it within the second genealogy, consisting of several dozen families and several hundred descendants. The total of both genealogies consisted of several thousand individuals - these several hundred being common descendants of both immigrants. No text or prose was copied, merely names, dates, places, and families.
It is clear from the reading the "spirit" of the rules of copyright not extending to facts, that this copying would be appropriate and not a copyright violation. It is bothersome, however, that the Supreme Court did not go that extra step to give guidance in this area when both works use the same arrangement and copyright protection is considered to cover the first compilation of facts.
There are several strategies employed, or conditions that simply assist, in an effort to dissuade copying of factual data. They include:
1) Prominent display of a copyright symbol and severe legal language notices that have no substance under the law. Corporations, particularly, are likely to use this approach. I have read one paper by a lawyer in a distinguished legal journal, addressing such corporations, who declared this is the "first line of defense" for the corporations to protect a compilation of facts - ie, to try to scare the public away.
2) Deep pockets. This goes without saying. As in many legal cases, the person with the deep pockets of cash to pay lawyers has an advantage over one with less resolve and less cash.
3) Use of licensing, where one "agrees" not to copy, or to copy under certain restrictions, the material revealed to the user / reader, in exchange for a fee. This tactic attempts to take the issue out of the copyright arena into contract law. Since FTM cannot claim copyright status over the "trees" in its CD Roms, this is likely their avenue of trying to protect their CD's. They espouse legal language as if they "own" the information on those CD's and go into a "fair use" type of criteria for copying from their CD's. This, of course, is outside the scope of copyright infringement, as we have seen. They will likely use the "license" form of defense, ie that the purchaser "agreed" to their restrictions on purchase. Whether they might win such a law suit is very tentative. Their biggest advantage is their "big pockets" ie driving any perceived violator into submission.
4) Try to rearrange the data in such a way that it might become a copyrightable compilation. If the inital author is successful in achieving this status, it is still uncertain, in many cases, what protection this actually provides. Without copyright status for the compilation as a whole, however, the plaintiff can't reach first base in an infringement case.
5) Policies developed as a practical matter to minimize nuisance law suits. This is particularly evident in the internet environment, where service providers are particularly sensitive to having their legal departments and legal expenses tied up in infringement cases, even if the "accused" infringer were to win, or regardless of the strength of the case of the plaintiff. The service provider would "win" no money and be out legal fees and the nuisance factor that a volume of these cases can give. So, they "cave" into copyright complaints that have no substance in the reality of a real courtroom.
Quotes from Feist and Miscellaneous
I quote the Supreme Court in Feist:
"This inevitably means that the copyright in a factual compilation is thin. Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another's publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement. As one commentator explains it: "[N]o matter how much original authorship the work displays, the facts and ideas it exposes are free for the taking.... [T]he very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas." Ginsburg 1868."
"No matter how original the format, however, the facts themselves do not become original through association."
"This Court has long recognized that the fact/expression dichotomy limits severely the scope of protection in fact-based works. More than a century ago, the Court observed: "The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book." Baker v. Selden, 101 U.S. 99, 103 (1880). We reiterated this point in Harper & Row...."
This means the names, dates, places, and relationships of people may be extracted from a work, even if it is copyrighted, which is another issue - see below.
Setting aside the concept that facts within a work are not protected even if a work is copyrighted, an author of the initial work would need to pass some hurdles in order to enjoy copyright protection of his or her compilation of the facts (this wouldn't apply to any prose written by the author - biosketches, etc, which would undoubtedly be protected.)
First, the initial work must be original to the author and not copied - a characteristic rare in this day and age in the internet environment, and particularly rare in New England Genealogy and medieval genealogy, again referring to the internet environment; and not to actual published works, say in the NEHGR or TAG or The Genealogist.
Next the work must exhibit a selection and arrangement of the facts that is "creative" - and that specific arrangement of just those facts in just that manner is all that is protected. Although what is "creative" is not clearly given by the Supreme Court, it declares alphabetical arrangement is not, also arrangements that would be almost "inevitable". It is clear that common arrangements in genealogy such as: descendant register reports, ascendant register reports, outline descendant reports, trees, ahnentafels, web templates - such as ged2html, etc, are not original with the author, and would have an uphill struggle to achieve the status of being the result of the **author's** creativity. The fact that there is a "selection" is the only element that is virtually "automatically" met; but that is not enough.
In a work that is a collection of bio-skeches and "work-done" expressions by the auther wrapped around a descendant register report, the arrangement might not be all that crucial to the original author obtaining copyright protection, as the work then takes on more of the character of a "dual" piece of work, where the protected prose and unprotected facts are intertwined, as if the facts were within a "normal" book. In this case, the work as a whole might be considered protected, probably notwithstanding any "arrangement" impediment, but the facts may still be extracted from the work. Taking anything besides the facts would have to pass muster under the "fair use" rules.
A gedcom "arrangement" is not created by the author; it is a standard setout by an organization - therefore the author can't be considered to be the "creator" of that arrangement. The finished work published by a person doing the receiving work will undoubtedly be in a different arrangement than a Gedcom and therefore, any similarity between the original and the secondary work will fail. The original work claiming infringement would need be a prior work in "finished form" for a comparison to be made that would substantiate a claim of copying the arrangement... only copying the facts in the same specific "creative arrangement" pass muster. Any other arrangement and/or selection is permissible... and that's only if the arrangement of the original is considered "creative"... a criteria most genealogical works would probably not be able to sustain.
A web page presentation using a software presentation for the web, such as ged2html, would likely fail in being a "creative" arrangement of the author as well, as the author of the work didn't create the "arrangement" - the software author did that.
In spite of all of these hurdles one has to complete in order to achieve copyright status, even were the initial author were to succeed, the person has only succeeded in copyright protection of those specific persons in that specific arrangement only... the names, dates, places and relationships of people given therein are free for the taking and assimilating into a second database and being published, in a book or on the web, by anyone else in the world without permission.
In short, a genealogical author cannot "tieup" the names, dates, places, and relationships of those who lived in the past (or currently, for that matter), for his life and 70 years by simply first publishing it - it doesn't matter how many hours or years the author put into the effort - "sweat of the brow" is gone.
The sometimes conflicting goals of protecting an author for his original "expression" and protecting the public's ability to access and use scientific and historic information is a balancing act. The Supreme Court has pretty well set the framework for how the two conflicting goals are to be met in terms of compilations of fact, in the Feist decision.
This fundamental principle of copyright law is at the heart of the free flow of information that has resulted in genealogy reaching the status it has reached today - were facts able to be "locked up" by a writer, virtually all genealogical publishing would freeze and progress in the field would stop
This is because one person publishing the genealogy of one family could "freeze" the members of that family from being included in a published work again, for the life of the author plus 70 years. Compare this, for example to the immigrant New England ancestors, many of which have been written about in thousands of publications individually - if copyright protection were extended to the facts about these people, many to most of those publications couldn't have been published - and to the extent that multiple publications had been allowed, current writers would be confronted with the unenviable situation of knowing he or she is possibly violating hundreds of copyrights by his publication, today, about a given ancestor.
The Supreme Court has made it clear that a monopoly to authors of the facts within a writing does not exist - just as one author may not freeze all future writings about World War II by simply being the first one to publish an account of it - and thereby locking up the names of battles and participants and their places and dates within a "copyright" locker.
The prerequisite of copyright is originality, which is comprise of two parts:1 - Independently created by the author (not copied)"Author," in a constitutional sense, to mean "he to whom anything owes its origin; originator; maker."
2 - Possesses at least some minimal degree of creativity.
"Originality is the very premise of copyright law"
"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.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. Nimmer ss 2.11[D], 3.03; Denicola 523, n. 38. 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. See: Harper & Row, 471 U.S., at 547, 105 S.Ct., at 2223. Accord, Nimmer s 3.03.
No matter how original the format, however, the facts themselves do not become original through association.
This inevitably means that the copyright in a factual compilation is thin. Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another's publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement. As one commentator explains it: "[N]o matter how much original authorship the work displays, the facts and ideas it exposes are free for
the taking.... [T]he very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas." Ginsburg 1868.
As applied to a factual compilation, assuming the absence of original written expression, only the compiler's selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.
The definition of "compilation" is found in s 101 of the 1976 Act. It defines a "compilation" in the copyright sense as "a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship" (emphasis added).
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. To that end, the statute dictates that the principal focus should be on whether the selection, coordination, and arrangement are sufficiently original to merit protection.
The doctrine's underlying principle is that "[w]hen there is essentially only one way to express an idea, the idea and its expression are inseparable and copyright is no bar to copying that expression." Concrete Machinery Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 606 (1st Cir.1988). Under these circumstances, the expression is said to have "merged" with the idea itself. In order not to confer a monopoly of the idea upon the copyright owner, such expression should not be protected. See Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir.1971).
Scenes a Fair Doctrine: "We have stated that where "it is virtually impossible to write about a particular historical era or fictional theme without employing certain 'stock' or standard literary devices," such expression is not copyrightable. Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d
49 (1980). For example, the Hoehling case was an infringement suit stemming from several works on the Hindenberg disaster. There we concluded that similarities in representations of German beer halls, scenes depicting German greetings such as "Heil Hitler," or the singing of certain German songs would not lead to a finding of infringement because they were " 'indispensable, or at least standard, in the treatment of' " life in Nazi Germany. Id. (quoting Alexander v. Haley, 460 F.Supp. 40, 45 (S.D.N.Y.1978)). This is known as the scenes a faire doctrine, and like "merger," it has its analogous application to computer programs. Cf. Data East USA, 862 F.2d at 208 (applying scenes a faire to a home computer video game).
c) Elements taken From the Public Domain
Closely related to the non-protectability of scenes a faire, is material found in the public domain. Such material is free for the taking and cannot be appropriated by a single author even though it is included in a copyrighted work. See E.F. Johnson Co. v. Uniden Corp. of America, 623 F.Supp. 1485, 1499 (D.Minn.1985); see also Sheldon, 81 F.2d at 54. We see no reason to make an exception to this rule for elements of a computer program that have
entered the public domain by virtue of freely accessible program exchanges and the like. See 3 Nimmer s13.03[F]; see also Brown Bag Software, 960 F.2d at 1473 (affirming the district court's finding that " '[p]laintiffs may not claim copyright protection of an ... expression that is, if not standard, then commonplace in the computer software industry.' "). Thus, a court must also filter out this material from the allegedly infringed program before it makes the final inquiry in its substantial similarity analysis.
The interest of the copyright law is not in simply conferring a monopoly on industrious persons, but in advancing the public welfare through rewarding artistic creativity, in a manner that permits the free use and development of non-protectable ideas and processes.
Harper & Row, Publishers, Inc. v. National Enterprises, (U.S. 1985), Supreme Court: "Although certain elements of theFord memoirs, such as historical facts and memoranda, were not per se copyrightable, the District Court held that it was "the totality of these facts and memoranda collected together with Ford's reflections that made them of value to The Nation, [and] this . . . totality . . . is protected by the copyright laws." Id., at 1072-1073. The court awarded actual damages of $ 12,500.
A divided panel of the Court of Appeals for the Second Circuit reversed. The majority recognized that Mr. Ford's verbatim "reflections" were original "expression" protected by copyright. But it held that the District Court had erred in assuming the "coupling [of these reflections] with uncopyrightable fact transformed that information [***12] into a copyrighted 'totality.'" 723 F.2d 195, 205 (1983). The majority noted that copyright attaches to expression, not facts or ideas. It concluded that, to avoid granting a copyright monopoly over the facts underlying history and news, "'expression' [in such works must be confined] to its barest elements -- the ordering and choice of the words themselves." Id., at 204. Thus similarities between the original and the challenged work traceable to the copying or
paraphrasing of uncopyrightable material, such as historical facts, memoranda and other public documents, and quoted remarks of third parties, must be disregarded in evaluating whether the second author's use was fair or infringing.
First Rights to Publish:
"The right of first publication implicates a threshold decision by the author whether and in what form to release his work. First publication is inherently different from other § 106 rights in that only one person can be the first publisher; as the contract with Time illustrates, the commercial value of the right lies primarily in exclusivity. Because the potential damage to the author from judicially enforced "sharing" of the first publication right with unauthorized users of his manuscript is substantial, the balance of equities in evaluating such a claim of fair use inevitably shifts. "
"A key, though not necessarily determinative, factor in fair use is whether or not the work is available to the potential user. If the work is 'out of print' and unavailable for purchase through normal channels, the user may have more justification for reproducing it. . . . The applicability of the fair use doctrine to unpublished works is narrowly limited since, although the work is unavailable, this is the result of a deliberate choice on the part of the copyright owner. Under ordinary circumstances, the copyright owner's 'right of first publication' would outweigh any needs of reproduction for classroom purposes." Senate Report, at 64.
Even if the legislative history were entirely silent, we would be bound to conclude from Congress' characterization of § 107 as a "restatement" that its effect was to preserve existing law concerning fair use of unpublished works as of other types of protected works and not to "change, narrow, or enlarge it." Id., at 66. We conclude that the unpublished nature of a work is "[a] key, though not necessarily determinative, factor" tending to negate a defense of fair use. Senate Report, at 64. See 3 Nimmer § 13.05, at 13-62, n. 2; W. Patry, [***30] The Fair Use Privilege in Copyright Law 125 (1985) (hereinafter Patry).
In its commercial guise, however, an author's right to choose when he will publish is no less deserving of protection. [*555] The period encompassing the work's initiation, its preparation, and its grooming for public dissemination is a crucial one for any literary endeavor.
"The four factors identified by Congress as especially relevant in determining whether the use was fair are: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the copyrighted work as [*561] a whole; (4) the effect on the potential market [**2231] for or value of the copyrighted work.
The Feist Decision, opinion by Judge O'Connor
"My Personal Position on Copyright" - by a genealogist web author
Nash vs CBS - contains the issue of historical facts and copyright
BellSouth vs Donnelly - Yellow Pages not given copyright protection. At issue: originality of the "selection, coordination or arrangement" of a compilation. Finding: BellSouth did not exhibit any originality in selection (geographic area of service dictated it), coordination, or arrangement (used nationwide standard, Donnelly used their own standard even if the type of business was copied for Donnelly to make that decision, and finally, an industrial classification is simply not original). Also clarified that common errors have nothing to do with copyright infringement. This case also contains an interesting, and blistering, dissenting opinion. In the dissenting opinion, the dissenting judge explicitly stated the majority judges completely misunderstoood Feist and what originality means. My understanding of his dissent is that he declared that the selection was original - as it limited the selection from all-in-the-world to something less; and the placing of items within the arrangement was the where the originality comes from, not whether the categories themselves are original.The BellSouth decision is much more precise than Feist on the issue of originality in the arrangement of a compilation, although lacking the authority that Feist has (only a circuit court decision effective for that circuit.). Using this court case it is clear that an author of a genealogical work would have nothing but an uphill struggle to successfully claim infringement by a subsequent genealogical work; as long as "expressable elements" such as bio-sketches and similar items are not copied and only names, dates, places, relationships, and other facts (occupation, war record, etc.) are copied.
Copyright, 2000, Norris Taylor, Jr.
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