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Date and Time: Tuesday, March 19, 2019 4:40:00 PM EDT
Job Number: 85183155
Document (1)
1. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340
Client/Matter: -NoneSearch Terms: Darden Peters
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As of: March 19, 2019 8:40 PM Z
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.
Supreme Court of the United States
January 9, 1991, Argued ; March 27, 1991, Decided
No. 89-1909
Reporter
499 U.S. 340 *; 111 S. Ct. 1282 **; 113 L. Ed. 2d 358 ***; 1991 U.S. LEXIS 1856 ****; 18 U.S.P.Q.2D (BNA) 1275; 59 U.S.L.W.
4251; Copy. L. Rep. (CCH) P26,702; 91 Cal. Daily Op. Service 2217; 121 P.U.R.4th 1; 91 Daily Journal DAR 3580; 18 Media L.
Rep. 1889; 68 Rad. Reg. 2d (P & F) 1513
FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE
SERVICE CO., INC.
Prior History: [****1] CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT.
Disposition: 916 F. 2d 718, reversed.
Core Terms
compilations, directory, pages, copyright protection,
courts, collection, creativity, listings, copying,
coordination, sweat, brow, telephone number,
subscribers, authorship, preexisting, arranged,
telephone service, yellow pages, writings, authors,
alphabetically, infringement, themselves, Universal,
decisions, materials, revisions, Cases, telephone
directory
Case Summary
Procedural Posture
Petitioner publishing company sought review by
certiorari of a judgment of the United States Court of
Appeals for the Tenth Circuit, which affirmed a grant of
summary judgment in favor of respondent phone
company in a suit by respondent against petitioner for
copyright infringement that arose after petitioner
published a directory compiled with information taken
from the white pages compiled and published by
respondent.
Overview
Respondent sued petitioner for copyright infringement
because petitioner had used information contained in its
white pages in the compilation of its own directory. The
court reversed a grant of summary judgment in favor of
respondent because the selection, coordination, and
arrangement of respondent’s white pages did not satisfy
the minimum constitutional standards for copyright
protection. Specifically, the court found that
respondent’s white pages, which contained only factual
information, i.e., phone numbers, addresses, and
names listed in alphabetical order, lacked the requisite
originality because respondent had not selected,
coordinated, or arranged the uncopyrightable facts in
any original way.
Outcome
The court reversed the judgment.
LexisNexis® Headnotes
Copyright Law > … > Statutory Copyright &
Fixation > Originality Requirement > Quantum of
Originality
Copyright Law > … > Statutory Copyright &
Fixation > Originality Requirement > General
Overview
HN1[ ] Originality
Originality
Requirement,
Quantum
of
To qualify for copyright protection, a work must be
original to the author. Original, as the term is used in
copyright, means only that the work was independently
created by the author and that it possesses at least
some minimal degree of creativity. 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.
Page 2 of 20
499 U.S. 340, *340; 111 S. Ct. 1282, **1282; 113 L. Ed. 2d 358, ***358; 1991 U.S. LEXIS 1856, ****1; 18
U.S.P.Q.2D (BNA) 1275, *****1275
selection or arrangement.
Constitutional Law > Congressional Duties &
Powers > General Overview
Copyright Law > Constitutional Copyright
Protections > Copyright Clause
Copyright Law > Scope of Copyright
Protection > Collective & Derivative
Works > Derivative Works
HN2[ ] Constitutional Law, Congressional Duties &
Powers
Copyright Law > … > Protected Subject
Matter > Limited Protection for Factual
Works > General Overview
U.S. Const. art. I, § 8, authorizes congress to secure for
limited times to authors the exclusive right to their
respective writings. The crucial terms “authors” and
“writings” presuppose a degree of originality.
Copyright Law > … > Protected Subject
Matter > Limited Protection for Ideas > General
Overview
Constitutional Law > Congressional Duties &
Powers > Copyright & Patent Clause
Copyright Law > Scope of Copyright
Protection > Collective & Derivative
Works > Collective Works
Copyright Law > Scope of Copyright
Protection > Collective & Derivative
Works > General Overview
Copyright Law > Scope of Copyright
Protection > Collective & Derivative Works > Scope
of Protection
Copyright Law > Constitutional Copyright
Protections > General Overview
Copyright Law > … > Protected Subject
Matter > Limited Protection for Factual
Works > General Overview
Copyright Law > … > Protected Subject
Matter > Limited Protection for Factual
Works > Literal Forms of Expression
Copyright Law > … > Statutory Copyright &
Fixation > Originality Requirement > General
Overview
HN3[ ] Congressional Duties & Powers, Copyright
& Patent Clause
A directory that contains absolutely no protectable
written expression, only facts, meets the constitutional
minimum for copyright protection if it features an original
Copyright Law > … > Statutory Copyright &
Fixation > Originality Requirement > General
Overview
HN4[ ] Collective & Derivative Works, Derivative
Works
No author may copyright facts or ideas. The copyright is
limited to those aspects of the work, termed expression,
that display the stamp of the author’s originality.
Copyright does not prevent subsequent users from
copying from a prior author’s work those constituent
elements that are not original, for example facts or
materials in the public domain, as long as such use
does not unfairly appropriate the author’s original
contributions.
Copyright Law > Scope of Copyright
Protection > Collective & Derivative
Works > Collective Works
Copyright Law > Scope of Copyright
Protection > Collective & Derivative
Works > General Overview
Copyright Law > … > Protected Subject
Matter > Limited Protection for Factual
Works > General Overview
HN5[ ] Collective & Derivative Works, Collective
Works
Facts, whether alone or as part of a compilation, are not
original and therefore may not be copyrighted.
Page 3 of 20
499 U.S. 340, *340; 111 S. Ct. 1282, **1282; 113 L. Ed. 2d 358, ***358; 1991 U.S. LEXIS 1856, ****1; 18
U.S.P.Q.2D (BNA) 1275, *****1275
Copyright Law > … > Protected Subject
Matter > Limited Protection for Factual
Works > Arrangements & Selections
Copyright Law > Scope of Copyright
Protection > Collective & Derivative
Works > General Overview
Copyright Law > Scope of Copyright
Protection > Collective & Derivative
Works > General Overview
HN8[ ] Collective & Derivative Works, Collective
Works
17 U.S.C.S. § 101 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.
Copyright Law > Scope of Copyright
Protection > Collective & Derivative
Works > Collective Works
Copyright Law > … > Protected Subject
Matter > Limited Protection for Factual
Works > General Overview
Copyright Law > … > Statutory Copyright &
Fixation > Originality Requirement > General
Overview
Copyright Law > … > Statutory Copyright &
Fixation > Unprotected Subject
Matter > Unprotected Facts
HN6[ ] Limited Protection for Factual Works,
Arrangements & Selections
A factual compilation is eligible for copyright if it features
an original selection or arrangement of facts, but the
copyright is limited to the particular selection or
arrangement. In no event may copyright extend to the
facts themselves.
Copyright Law > … > Protected Subject
Matter > Limited Protection for Ideas > General
Overview
Copyright Law > Scope of Copyright
Protection > Subject Matter > General Overview
Copyright Law > … > Subject Matter > Statutory
Copyright & Fixation > General Overview
Copyright Law > … > Subject Matter > Statutory
Copyright & Fixation > Original Works of Authorship
HN7[ ]
Protected
Protection for Ideas
Subject
Matter,
See 17 U.S.C.S. § 102.
Limited
HN9[ ] Statutory Copyright & Fixation, Originality
Requirement
Originality requires only that an author make a selection
or arrangement independently, i. e., without copying that
selection or arrangement from another work, and that it
display some minimal level of creativity.
Copyright Law > Scope of Copyright
Protection > Collective & Derivative
Works > Collective Works
Copyright Law > Scope of Copyright
Protection > Collective & Derivative
Works > General Overview
Copyright Law > Scope of Copyright
Protection > Collective & Derivative Works > Scope
of Protection
Copyright Law > Scope of Copyright
Protection > Subject Matter > General Overview
Copyright Law > … > Statutory Copyright &
Fixation > Unprotected Subject
Matter > Unprotected Facts
HN10[ ] Collective & Derivative Works, Collective
Works
Copyright Law > Scope of Copyright
Protection > Collective & Derivative
Works > Collective Works
17 U.S.C.S. § 103(a) states that the subject matter of
copyright includes compilations, but that copyright
Page 4 of 20
499 U.S. 340, *340; 111 S. Ct. 1282, **1282; 113 L. Ed. 2d 358, ***358; 1991 U.S. LEXIS 1856, ****1; 18
U.S.P.Q.2D (BNA) 1275, *****1275
protects only the author’s original contributions, not the
facts or information conveyed.
Copyright Law > Scope of Copyright
Protection > Collective & Derivative
Works > Collective Works
Copyright Law > Scope of Copyright
Protection > Collective & Derivative
Works > General Overview
HN11[ ] Collective & Derivative Works, Collective
Works
The copyright in a compilation extends only to the
material contributed by the author of such work, as
distinguished from the preexisting material employed in
the work, and does not imply any exclusive right in the
preexisting material. 17 U.S.C.S. § 103(b).
Copyright Law > … > Civil Infringement
Actions > Elements > Copying by Defendants
Copyright Law > Copyright Infringement
Actions > Civil Infringement Actions > General
Overview
Copyright Law > … > Civil Infringement
Actions > Elements > General Overview
Copyright Law > … > Civil Infringement
Actions > Elements > Ownership
Copyright Law > … > Protected Subject
Matter > Limited Protection for Factual
Works > General Overview
HN12[
] Elements, Copying by Defendants
To establish copyright infringement, two elements must
be proven: (1) ownership of a valid copyright, and (2)
copying of constituent elements of the work that are
original.
Copyright Law > Constitutional Copyright
Protections > Copyright Clause
Copyright Law > Constitutional Copyright
Protections > General Overview
Copyright Law > Scope of Copyright
Protection > Subject Matter > General Overview
Copyright Law > … > Protected Subject
Matter > Limited Protection for Factual
Works > General Overview
Copyright Law > … > Statutory Copyright &
Fixation > Originality Requirement > General
Overview
HN13[ ] Constitutional
Copyright Clause
Copyright
Protections,
As a constitutional matter, copyright protects only those
constituent elements of a work that possess more than
a de minimis quantum of creativity.
Copyright Law > … > Statutory Copyright &
Fixation > Originality Requirement > General
Overview
HN14[ ] Statutory Copyright & Fixation, Originality
Requirement
17 U.S.C.S. § 101 does not afford protection from
copying to a collection of facts that are selected,
coordinated, and arranged in a way that utterly lacks
originality.
Lawyers’ Edition Display
Decision
Alphabetical listings of names, accompanied by towns
and telephone numbers, in telephone book white pages
held not copyrightable; thus, nonconsensual copying of
listings held not to infringe on copyright.
Summary
A telephone company that was a certified public utility
providing telephone service to several communities in
Kansas, and that was subject to a state regulation
requiring all telephone companies operating in the state
to issue annually an updated telephone directory,
published a typical telephone directory, consisting of
white pages and yellow pages. The white pages listed in
alphabetical order the names of the telephone
company’s subscribers, together with their towns and
telephone numbers. The telephone company obtained
Page 5 of 20
499 U.S. 340, *340; 111 S. Ct. 1282, **1282; 113 L. Ed. 2d 358, ***358; 1991 U.S. LEXIS 1856, ****1; 18
U.S.P.Q.2D (BNA) 1275, *****1275
the data for its white pages from the company’s
subscribers, who were required to provide their names
and addresses when applying for telephone service
from the company. A publishing company, which
specialized in areawide telephone directories covering a
much larger geographical range than did directories
such as that of the telephone company, offered to pay
the telephone company for the right to use its white
pages listings, but the telephone company refused to
license its listings to the publishing company.
Subsequently, the publishing company used the
telephone company’s white pages listings without the
telephone company’s consent. Although the publishing
company sought to obtain additional information, such
as street addresses, for the listings that it took from the
telephone company’s white pages, many of the listings
in the publishing company’s areawide directory that
covered part of the telephone company’s service area
were identical to listings in the telephone company’s
white pages. In a copyright infringement suit brought by
the telephone company against the publishing company,
the United States District Court for the District of
Kansas, explaining that courts had consistently held that
telephone directories were copyrightable, granted
summary judgment to the telephone company (663 F
Supp 214). The United States Court of Appeals for the
Tenth Circuit, in an unpublished opinion, affirmed the
District Court judgment for substantially the reasons
given by the District Court (916 F2d 718).
On certiorari, the United States Supreme Court
reversed. In an opinion by O’Connor, J., joined by
Rehnquist, Ch. J., and White, Marshall, Stevens, Scalia,
Kennedy, and Souter, JJ., it was held that (1) the
names, towns, and telephone numbers listed in the
white pages were not protected by the telephone
company’s copyright in its combined white and yellow
pages directory, because the listings in the white pages
were not original to the telephone company, since (a)
the listings, rather than owing their origin to the
telephone company, were uncopyrightable facts, and (b)
the telephone company has not selected, coordinated,
or arranged these uncopyrightable facts in an original
way sufficient to satisfy the minimum standards for
copyright
protection–under
either
the
Federal
Constitution’s Article I, 8, cl 8, which authorizes
Congress to secure for limited times to authors the
exclusive right to their respective writings, or the
Copyright Act of 1976 (17 USCS 101 et seq.), which
provides copyright protection for original works of
authorship–given that the telephone company’s
selection and alphabetical arrangement of the listings
lacked the creativity necessary to demonstrate
originality; and (2) because the telephone company’s
white pages listings lacked the requisite originality for
copyright protection, the publishing company’s use of
the listings could not constitute copyright infringement.
Blackmun, J., concurred in the judgment.
Headnotes
COPYRIGHT AND LITERARY PROPERTY §3 > subject of
copyright — telephone directory — white pages — > Headnote:
LEdHN[1A][ ] [1A]LEdHN[1B][ ] [1B]LEdHN[1C][
[1C]LEdHN[1D][ ] [1D]LEdHN[1E][ ] [1E]
]
Although a telephone company’s combined white and
yellow pages directory, considered as a whole, is
subject to a valid copyright because it contains some
foreword text, as well as original material in its yellow
pages advertisements, the names, towns, and
telephone numbers listed alphabetically according to
name in the directory’s white pages are not protected by
the copyright in the directory, because the listings in the
white pages are not original to the telephone company,
since (1) the names, towns, and telephone numbers,
rather than owing their origin to the telephone company,
are uncopyrightable facts; and (2) the telephone
company has not selected, coordinated, or arranged
these uncopyrightable facts in an original way sufficient
to satisfy the minimum standards for copyright
protection–under either the Federal Constitution’s
Article I, 8, cl 8, which authorizes Congress to secure for
limited times to authors the exclusive right to their
respective writings, or the Copyright Act of 1976 (17
USCS 101 et seq.), which provides copyright protection
for original works of authorship–given that (a) the
telephone company’s selection of listings–the name,
town, and telephone number of each of the company’s
subscribers–lacks the modicum of creativity necessary
to transform mere selection into copyrightable
expression, and (b) there is nothing remotely creative
about arranging names alphabetically in a white pages
directory.
COPYRIGHT AND LITERARY PROPERTY
§20 > infringement — telephone directory — white pages -> Headnote:
LEdHN[2A][
] [2A]LEdHN[2B][
] [2B]
Page 6 of 20
499 U.S. 340, *340; 111 S. Ct. 1282, **1282; 113 L. Ed. 2d 358, ***358; 1991 U.S. LEXIS 1856, ****1; 18
U.S.P.Q.2D (BNA) 1275, *****1275
The nonconsensual copying, by a publishing company
into its areawide telephone directory, of white pages
listings from a combined white and yellow pages
telephone directory published by a telephone company
that serves part of the area covered by the areawide
directory, cannot constitute copyright infringement,
where the United States Supreme Court has determined
that the telephone company’s white pages listings lack
the requisite originality to be protected by the copyright
in the telephone company’s combined white and yellow
pages directory.
are sufficiently original that Congress may protect such
compilations through the copyright laws; thus, even a
directory that contains absolutely no protectable written
expression, but only facts, meets the constitutional
minimum for copyright protection if it features an original
selection or arrangement; but, as a constitutional matter,
copyright protects only those constituent elements of a
work that possess more than a de minimis quantum of
creativity.
COPYRIGHT AND LITERARY PROPERTY §3 > subject of
copyright — originality — novelty — > Headnote:
LEdHN[5A][
COPYRIGHT AND LITERARY PROPERTY §3 > subject of
copyright — facts — > Headnote:
LEdHN[3A][ ] [3A]LEdHN[3B][ ] [3B]LEdHN[3C][
[3C]LEdHN[3D][ ] [3D]LEdHN[3E][ ]
[3E]LEdHN[3F][ ] [3F]LEdHN[3G][ ] [3G]
]
Facts are not copyrightable, because (1) the Federal
Constitution’s Article I, 8, cl 8–which authorizes
Congress to secure for limited times to authors the
exclusive right to their respective writings–mandates
that a work must be original to the author in order to
qualify for copyright protection, and (2) no one may
claim originality as to facts, since facts do not owe their
origin to an act of authorship, given that the first person
to find and report a particular fact has not created the
fact, but has merely discovered its existence.
] [4B]LEdHN[4C][
] [5B]
The term “original,” as it is used in copyright–where the
United States Supreme Court has held that to qualify for
copyright protection, a work must be original to the
author–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; because 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; thus, if t …
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