Respondent Rural Telephone Service Company is a certified public
utility providing telephone service to several communities in
Kansas. Pursuant to state regulation, Rural publishes a typical
telephone directory, consisting of white pages and yellow pages. It
obtains data for the directory from subscribers, who must provide
their names and addresses to obtain telephone service. Petitioner
Feist Publications, Inc., is a publishing company that specializes
in area-wide telephone directories covering a much larger
geographic range than directories such as Rural's. When Rural
refused to license its white pages listings to Feist for a
directory covering 11 different telephone service areas, Feist
extracted the listings it needed from Rural's directory without
Rural's consent. Although Feist altered many of Rural's listings,
several were identical to listings in Rural's white pages. The
District Court granted summary judgment to Rural in its copyright
infringement suit, holding that telephone directories are
copyrightable. The Court of Appeals affirmed.
Held: Rural's white pages are not entitled to
copyright, and therefore Feist's use of them does not constitute
infringement. Pp.
499 U. S.
344-364.
(a) Article I, § 8, cl. 8, of the Constitution mandates
originality as a prerequisite for copyright protection. The
constitutional requirement necessitates independent creation plus a
modicum of creativity. Since facts do not owe their origin to an
act of authorship, they are not original, and thus are not
copyrightable. Although a compilation of facts may possess the
requisite originality because the author typically chooses which
facts to include, in what order to place them, and how to arrange
the data so that readers may use them effectively, copyright
protection extends only to those components of the work that are
original to the author, not to the facts themselves. This
fact/expression dichotomy severely limits the scope of protection
in fact-based works. Pp.
499 U. S.
344-351.
(b) The Copyright Act of 1976 and its predecessor, the Copyright
Act of 1909, leave no doubt that originality is the touchstone of
copyright protection in directories and other fact-based works. The
1976 Act explains that copyright extends to "original works of
authorship," 17 U.S.C. § 102(a), and that there can be no copyright
in facts, § 102(b).
Page 499 U. S. 341
A compilation is not copyrightable
per se, but is
copyrightable only if its facts have been "selected, coordinated,
or arranged
in such a way that the resulting work as a
whole constitutes an original work of authorship." § 101 (emphasis
added). Thus, the statute envisions that some ways of selecting,
coordinating, and arranging data are not sufficiently original to
trigger copyright protection. Even a compilation that is
copyrightable receives only limited protection, for the copyright
does not extend to facts contained in the compilation. § 103(b).
Lower courts that adopted a "sweat of the brow" or "industrious
collection" test -- which extended a compilation's copyright
protection beyond selection and arrangement to the facts themselves
-- misconstrued the 1909 Act and eschewed the fundamental axiom of
copyright law that no one may copyright facts or ideas. Pp.
499 U. S.
351-361.
(c) Rural's white pages do not meet the constitutional or
statutory requirements for copyright protection. While Rural has a
valid copyright in the directory as a whole because it contains
some forward text and some original material in the yellow pages,
there is nothing original in Rural's white pages. The raw data are
uncopyrightable facts, and the way in which Rural selected,
coordinated, and arranged those facts is not original in any way.
Rural's selection of listings -- subscribers' names, towns, and
telephone numbers -- could not be more obvious, and lacks the
modicum of creativity necessary to transform mere selection into
copyrightable expression. In fact, it is plausible to conclude that
Rural did not truly "select" to publish its subscribers' names and
telephone numbers, since it was required to do so by state law.
Moreover, there is nothing remotely creative about arranging names
alphabetically in a white pages directory. It is an age-old
practice, firmly rooted in tradition and so commonplace that it has
come to be expected as a matter of course. Pp.
499 U. S.
361-364.
916 F.2d 718 (CA 10 1990), reversed.
O'CONNOR J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, MARSHALL, STEVENS, SCALIA, KENNEDY, and
SOUTER, JJ., joined. BLACKMUN, J., concurred in the judgment.
Page 499 U. S. 342
JUSTICE O'CONNOR delivered the opinion of the Court.
This case requires us to clarify the extent of copyright
protection available to telephone directory white pages.
I
Rural Telephone Service Company is a certified public utility
that provides telephone service to several communities in northwest
Kansas. It is subject to a state regulation that requires all
telephone companies operating in Kansas to issue annually an
updated telephone directory. Accordingly, as a condition of its
monopoly franchise, Rural publishes a typical
Page 499 U. S. 343
telephone directory, consisting of white pages and yellow pages.
The white pages list in alphabetical order the names of Rural's
subscribers, together with their towns and telephone numbers. The
yellow pages list Rural's business subscribers alphabetically by
category, and feature classified advertisements of various sizes.
Rural distributes its directory free of charge to its subscribers,
but earns revenue by selling yellow pages advertisements.
Feist Publications, Inc., is a publishing company that
specializes in area-wide telephone directories. Unlike a typical
directory, which covers only a particular calling area, Feist's
area-wide directories cover a much larger geographical range,
reducing the need to call directory assistance or consult multiple
directories. The Feist directory that is the subject of this
litigation covers 11 different telephone service areas in 15
counties and contains 46,878 white pages listings -- compared to
Rural's approximately 7,700 listings. Like Rural's directory,
Feist's is distributed free of charge and includes both white pages
and yellow pages. Feist and Rural compete vigorously for yellow
pages advertising.
As the sole provider of telephone service in its service area,
Rural obtains subscriber information quite easily. Persons desiring
telephone service must apply to Rural and provide their names and
addresses; Rural then assigns them a telephone number. Feist is not
a telephone company, let alone one with monopoly status, and
therefore lacks independent access to any subscriber information.
To obtain white pages listings for its area-wide directory, Feist
approached each of the 11 telephone companies operating in
northwest Kansas and offered to pay for the right to use its white
pages listings.
Of the 11 telephone companies, only Rural refused to license its
listings to Feist. Rural's refusal created a problem for Feist, as
omitting these listings would have left a gaping hole in its
area-wide directory, rendering it less attractive to potential
yellow pages advertisers. In a decision subsequent to that which we
review here, the District Court determined that this was precisely
the reason Rural refused to license its listings. The refusal was
motivated by an unlawful purpose "to extend its monopoly in
telephone service to a monopoly in yellow pages advertising."
Rural Telephone Service Co. v. Feist Publications, Inc.,
737 F.
Supp. 610, 622 (Kan.1990).
Unable to license Rural's white pages listings, Feist used them
without Rural's consent. Feist began by removing several thousand
listings that fell outside the geographic range of its area-wide
directory, then hired personnel to investigate the 4,935 that
remained. These employees verified
Page 499 U. S. 344
the data reported by Rural and sought to obtain additional
information. As a result, a typical Feist listing includes the
individual's street address; most of Rural's listings do not.
Notwithstanding these additions, however, 1,309 of the 46,878
listings in Feist's 1983 directory were identical to listings in
Rural's 1982-1983 white pages. App. 54 (15-16), 57. Four of these
were fictitious listings that Rural had inserted into its directory
to detect copying.
Rural sued for copyright infringement in the District Court for
the District of Kansas, taking the position that Feist, in
compiling its own directory, could not use the information
contained in Rural's white pages. Rural asserted that Feist's
employees were obliged to travel door-to-door or conduct a
telephone survey to discover the same information for themselves.
Feist responded that such efforts were economically impractical
and, in any event, unnecessary, because the information copied was
beyond the scope of copyright protection. The District Court
granted summary judgment to Rural, explaining that "[c]ourts have
consistently held that telephone directories are copyrightable" and
citing a string of lower court decisions.
663 F.
Supp. 214, 218 (1987). In an unpublished opinion, the Court of
Appeals for the Tenth Circuit affirmed "for substantially the
reasons given by the district court." App. to Pet. for Cert. 4a,
judgt. order reported at 916 F.2d 718 (1990). We granted
certiorari, 498 U.S. 808 (1990), to determine whether the copyright
in Rural's directory protects the names, towns, and telephone
numbers copied by Feist.
II
A
This case concerns the interaction of two well-established
propositions. The first is that facts are not copyrightable; the
other, that compilations of facts generally are. Each of these
propositions possesses an impeccable pedigree. That there can be no
valid copyright in facts is universally understood. The most
fundamental axiom of copyright law is that
Page 499 U. S. 345
"[n]o author may copyright his ideas or the facts he narrates."
Harper & Row, Publishers, Inc. v. Nation Enterprises,
471 U. S. 539,
471 U. S. 556
(1985). Rural wisely concedes this point, noting in its brief that
"[f]acts and discoveries, of course, are not themselves subject to
copyright protection." Brief for Respondent 24. At the same time,
however, it is beyond dispute that compilations of facts are within
the subject matter of copyright. Compilations were expressly
mentioned in the Copyright Act of 1909, and again in the Copyright
Act of 1976.
There is an undeniable tension between these two propositions.
Many compilations consist of nothing but raw data --
i.e.,
wholly factual information not accompanied by any original written
expression. On what basis may one claim a copyright in such a work?
Common sense tells us that 100 uncopyrightable facts do not
magically change their status when gathered together in one place.
Yet copyright law seems to contemplate that compilations that
consist exclusively of facts are potentially within its scope.
The key to resolving the tension lies in understanding why facts
are not copyrightable. The
sine qua non of copyright is
originality. To qualify for copyright protection, a work must be
original to the author.
See Harper Row, supra, at
471 U. S.
547-549. 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. 1 M. Nimmer & D.
Nimmer, Copyright §§ 2.01[A], [B] (1990) (hereinafter Nimmer). 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.
Id. §
1.08[C][1]. 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,
Page 499 U. S. 346
assume that two poets, each ignorant of the other, compose
identical poems. Neither work is novel, yet both are original and,
hence, copyrightable.
See Sheldon v. Metro-Goldwyn Pictures
Corp., 81 F.2d 49, 54 (CA2 1936).
Originality is a constitutional requirement. The source of
Congress' power to enact copyright laws is Article I, § 8, cl. 8,
of the Constitution, which authorizes Congress to "secur[e] for
limited Times to Authors . . . the exclusive Right to their
respective Writings." In two decisions from the late 19th Century
--
The Trade-Mark Cases, 100 U. S. 82
(1879); and
Burrow-Giles Lithographic Co. v. Sarony,
111 U. S. 53 (1884)
-- this Court defined the crucial terms "authors" and "writings."
In so doing, the Court made it unmistakably clear that these terms
presuppose a degree of originality.
In
The Trade-Mark Cases, the Court addressed the
constitutional scope of "writings." For a particular work to be
classified "under the head of writings of authors," the Court
determined, "originality is required." 100 U.S. at
100 U. S. 94.
The Court explained that originality requires independent creation
plus a modicum of creativity:
"[W]hile the word
writings may be liberally construed,
as it has been, to include original designs for engraving, prints,
&c., it is only such as are
original, and are founded
in the creative powers of the mind. The writings which are to be
protected are
the fruits of intellectual labor, embodied
in the form of books, prints, engravings, and the like."
Ibid. (emphasis in original).
In
Burrow-Giles, the Court distilled the same
requirement from the Constitution's use of the word "authors." The
Court defined "author," in a constitutional sense, to mean "he to
whom anything owes its origin; originator; maker." 111 U.S. at
111 U. S. 58
(internal quotations omitted). As in
The Trade-Mark Cases,
the Court emphasized the creative component of originality. It
described copyright as being limited to "original intellectual
conceptions of the author,"
ibid., and stressed the
importance of requiring an author who accuses another of
infringement to prove "the existence
Page 499 U. S. 347
of those facts of originality, of intellectual production, of
thought, and conception."
Id. 111 U.S. at
111 U. S.
590.
The originality requirement articulated in
The Trade-Mark
Cases and
Burrow-Giles remains the touchstone of
copyright protection today.
See Goldstein v. California,
412 U. S. 546,
412 U. S.
561-562 (1973). It is the very "premise of copyright
law."
Miller v. Universal City Studios, Inc., 650 F.2d
1365, 1368 (CA5 1981). Leading scholars agree on this point. As one
pair of commentators succinctly puts it: "The originality
requirement is
constitutionally mandated for all works."
Patterson & Joyce, Monopolizing the Law: The Scope of Copyright
Protection for Law Reports and Statutory Compilations, 36 UCLA
L.Rev. 719, 763, n. 155 (1989) (emphasis in original) (hereinafter
Patterson & Joyce).
Accord, id. at 759-760, and n.
140; Nimmer § 1.06[A] ("originality is a statutory as well as a
constitutional requirement");
id. § 1.08[C][1] ("a modicum
of intellectual labor . . . clearly constitutes an essential
constitutional element").
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."
Id. § 2.11[A], p. 2-157. 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. To borrow from
Burrow-Giles, one
who discovers a fact is not its "maker" or "originator." 111 U.S.
at
111 U. S. 58.
"The discoverer merely finds and records." Nimmer § 2.03[E].
Census-takers, for example, do not "create" the population figures
that emerge from their efforts; in a sense, they copy these figures
from the world around them. Denicola, Copyright in Collections of
Facts: A Theory for the Protection of Nonfiction Literary Works, 81
Colum.L.Rev. 516, 525 (1981) (hereinafter Denicola). Census data
therefore do not trigger copyright, because these data are not
"original" in the constitutional sense. Nimmer
Page 499 U. S. 348
§ 2.03[E]. The same is true of all facts -- scientific,
historical, biographical, and news of the day. "[T]hey may not be
copyrighted, and are part of the public domain available to every
person." Miller,
supra, at 1369.
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 §§
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
471 U. S. 547.
Accord, Nimmer § 3.03.
This protection is subject to an important limitation. The mere
fact that a work is copyrighted does not mean that every element of
the work may be protected. Originality remains the
sine qua
non of copyright; accordingly, copyright protection may extend
only to those components of a work that are original to the author.
Patterson & Joyce 800-802; Ginsburg, Creation and Commercial
Value: Copyright Protection of Works of Information, 90
Colum.L.Rev. 1865, 1868, and n. 12 (1990) (hereinafter Ginsburg).
Thus, if the compilation author clothes facts with an original
collocation of words, he or she may be able to claim a copyright in
this written expression. Others may copy the underlying facts from
the publication, but not the precise words used to present them. In
Harper & Row, for example, we explained that President
Ford could not prevent others from copying bare historical facts
from his autobiography,
see 471 U.S. at
471 U. S.
556-557, but that he could prevent others from copying
his "subjective descriptions and portraits of public figures."
Page 499 U. S. 349
Id. at
471 U. S. 563.
Where the compilation author adds no written expression, but rather
lets the facts speak for themselves, the expressive element is more
elusive. The only conceivable expression is the manner in which the
compiler has selected and arranged the facts. Thus, if the
selection and arrangement are original, these elements of the work
are eligible for copyright protection.
See Patry,
Copyright in Compilations of Facts (or Why the "White Pages" Are
Not Copyrightable), 12 Com. & Law 37, 64 (Dec.1990)
(hereinafter Patry). No matter how original the format, however,
the facts themselves do not become original through association.
See Patterson & Joyce 776.
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.
It may seem unfair that much of the fruit of the compiler's
labor may be used by others without compensation. As Justice
Brennan has correctly observed, however, this is not "some
unforeseen byproduct of a statutory scheme."
Harper &
Row, 471 U.S. at
471 U. S. 589
(dissenting opinion). It is, rather, "the essence of copyright,"
ibid. and a constitutional requirement. The primary
objective of copyright is not to reward the labor of authors, but
"[t]o promote the Progress of Science and useful Arts." Art. I, §
8, cl. 8.
Accord, Twentieth Century Music Corp. v. Aiken,
422 U. S. 151,
422 U. S. 156
(1975). To this end, copyright assures authors the right to their
original
Page 499 U. S. 350
expression, but encourages others to build freely upon the ideas
and information conveyed by a work.
Harper & Row,
supra, 471 U.S. at
471 U. S.
556-557. 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 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.
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,
101 U. S. 103
(1880). We reiterated this point in
Harper & Row:
"[N]o 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."
"[C]opyright 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."
471 U.S. at
471 U. S.
547-548 (citation omitted).
This, then, resolves the doctrinal tension: Copyright treats
facts and factual compilations in a wholly consistent manner.
Facts, whether alone or as part of a compilation, are not original,
and therefore may not be copyrighted. A factual compilation is
eligible for copyright if it features an original selection or
arrangement of facts, but the copyright is limited to
Page 499 U. S. 351
the particular selection or arrangement. In no event may
copyright extend to the facts themselves.
B
As we have explained, originality is a constitutionally mandated
prerequisite for copyright protection. The Court's decisions
announcing this rule predate the Copyright Act of 1909, but
ambiguous language in the 1909 Act caused some lower courts
temporarily to lose sight of this requirement.
The 1909 Act embodied the originality requirement, but not as
clearly as it might have.
See Nimmer § 2.01. The subject
matter of copyright was set out in § 3 and § 4 of the Act. Section
4 stated that copyright was available to "all the writings of an
author." 35 Stat. 1076. By using the words "writings" and "author"
-- the same words used in Article I, § 8 of the Constitution and
defined by the Court in
The Trade-Mark Cases and
Burrow-Giles -- the statute necessarily incorporated the
originality requirement articulated in the Court's decisions. It
did so implicitly, however, thereby leaving room for error.
Section 3 was similarly ambiguous. It stated that the copyright
in a work protected only "the copyrightable component parts of the
work." It thus stated an important copyright principle, but failed
to identify the specific characteristic -- originality -- that
determined which component parts of a work were copyrightable and
which were not.
Most courts construed the 1909 Act correctly, notwithstanding
the less-than-perfect statutory language. They understood from this
Court's decisions that there could be no copyright without
originality.
See Patterson & Joyce 760-761. As
explained in the Nimmer treatise:
"The 1909 Act neither defined originality nor even expressly
required that a work be 'original' in order to command protection.
However, the courts uniformly inferred the requirement from the
fact that copyright protection may only be claimed by 'authors.' .
. . It was reasoned that, since an author is 'the . . .
Page 499 U. S. 352
creator, originator,' it follows that a work is not the product
of an author unless the work is original."
Nimmer § 2.01 (footnotes omitted) (citing cases).
But some courts misunderstood the statute.
See, e.g., Leon
v. Pacific Telephone & Telegraph Co., 91 F.2d 484 (CA9
1937);
Jeweler's Circular Publishing Co. v. Keystone Publishing
Co., 281 F. 83 (CA2 1922). These courts ignored § 3 and § 4,
focusing their attention instead on § 5 of the Act. Section 5,
however, was purely technical in nature: it provided that a person
seeking to register a work should indicate on the application the
type of work, and it listed 14 categories under which the work
might fall. One of these categories was "[b]ooks, including
composite and cyclopoedic works, directories, gazetteers, and other
compilations." § 5(a). Section 5 did not purport to say that all
compilations were automatically copyrightable. Indeed, it expressly
disclaimed any such function, pointing out that "the subject matter
of copyright [i]s defined in section four." Nevertheless, the fact
that factual compilations were mentioned specifically in § 5 led
some courts to infer erroneously that directories and the like were
copyrightable
per se, "without any further or precise
showing of original -- personal -- authorship." Ginsburg 1895.
Making matters worse, these courts developed a new theory to
justify the protection of factual compilations. Known alternatively
as "sweat of the brow" or "industrious collection," the underlying
notion was that copyright was a reward for the hard work that went
into compiling facts. The classic formulation of the doctrine
appeared in
Jeweler's Circular Publishing Co., 281 F. at
88:
"The right to copyright a book upon which one has expended labor
in its preparation does not depend upon whether the materials which
he has collected consist or not of matters which are
publici
juris, or whether such materials show literary skill
or
originality, either in thought or in language, or anything
more than industrious
Page 499 U. S. 353
collection. The man who goes through the streets of a town and
puts down the names of each of the inhabitants, with their
occupations and their street number acquires material of which he
is the author."
(Emphasis added).
The "sweat of the brow" doctrine had numerous flaws, the most
glaring being that it extended copyright protection in a
compilation beyond selection and arrangement -- the compiler's
original contributions -- to the facts themselves. Under the
doctrine, the only defense to infringement was independent
creation. A subsequent compiler was "not entitled to take one word
of information previously published," but rather had to
"independently wor[k] out the matter for himself, so as to arrive
at the same result from the same common sources of information."
Id. at 88-89 (internal quotations omitted). "Sweat of the
brow" courts thereby eschewed the most fundamental axiom of
copyright law -- that no one may copyright facts or ideas.
See
Miller v. Universal City Studios, Inc., 650 F.2d at 1372
(criticizing "sweat of the brow" courts because "ensur[ing] that
later writers obtain the facts independently . . . is precisely the
scope of protection given . . . copyrighted matter, and the law is
clear that facts are not entitled to such protection").
Decisions of this Court applying the 1909 Act make clear that
the statute did not permit the "sweat of the brow" approach. The
best example is
International News Service v. Associated
Press, 248 U. S. 215
(1918). In that decision, the Court stated unambiguously that the
1909 Act conferred copyright protection only on those elements of a
work that were original to the author. International News Service
had conceded taking news reported by Associated Press and
publishing it in its own newspapers. Recognizing that § 5 of the
Act specifically mentioned "[p]eriodicals, including newspapers," §
5(b), the Court acknowledged that news articles were copyrightable.
Id. at
248 U. S. 234.
It flatly rejected, however, the notion that the copyright in an
article extended to
Page 499 U. S. 354
the factual information it contained:
"[T]he news element -- the information respecting current events
contained in the literary production -- is not the creation of the
writer, but is a report of matters that ordinarily are
publici
juris; it is the history of the day."
Ibid. *
Without a doubt, the "sweat of the brow" doctrine flouted basic
copyright principles. Throughout history, copyright law has
"recognize[d] a greater need to disseminate factual works than
works of fiction or fantasy."
Harper & Row, 471 U.S.
at
471 U. S. 563.
Accord, Gorman, Fact or Fancy: The Implications for
Copyright, 29 J.Copyright Soc. 560, 563 (1982). But "sweat of the
brow" courts took a contrary view; they handed out proprietary
interests in facts and declared that authors are absolutely
precluded from saving time and effort by relying upon the facts
contained in prior works. In truth, "[i]t is just such wasted
effort that the proscription against the copyright of ideas and
facts . . . [is] designed to prevent."
Rosemont Enterprises,
Inc. v. Random House, Inc., 366 F.2d 303, 310 (CA2 1966),
cert. denied 385 U.S. 1009 (1967).
"Protection for the fruits of such research . . . may, in
certain circumstances, be available under a theory of unfair
competition. But to accord copyright protection on this basis alone
distorts basic copyright principles in that it creates a monopoly
in public domain materials without the necessary justification of
protecting and encouraging the creation of 'writings' by
'authors.'"
Nimmer § 3.04, p. 3-23 (footnote omitted).
C
"Sweat of the brow" decisions did not escape the attention of
the Copyright Office. When Congress decided to overhaul the
copyright statute and asked the Copyright Office to study existing
problems,
see Mills Music, Inc. v. Snyder, 469 U.
S. 153,
469 U. S. 159
(1985), the Copyright Office promptly recommended
Page 499 U. S. 355
that Congress clear up the confusion in the lower courts as to
the basic standards of copyrightability. The Register of Copyrights
explained in his first report to Congress that "originality" was a
"basic requisit[e]" of copyright under the 1909 Act, but that "the
absence of any reference to [originality] in the statute seems to
have led to misconceptions as to what is copyrightable matter."
Report of the Register of Copyrights on the General Revision of the
U.S. Copyright Law, 87th Cong., 1st Sess., p. 9 (H. Judiciary Comm.
Print 1961). The Register suggested making the originality
requirement explicit.
Ibid.
Congress took the Register's advice. In enacting the Copyright
Act of 1976, Congress dropped the reference to "all the writings of
an author" and replaced it with the phrase "original works of
authorship." 17 U.S.C. § 102(a). In making explicit the originality
requirement, Congress announced that it was merely clarifying
existing law:
"The two fundamental criteria of copyright protection [are]
originality and fixation in tangible form. . . . The phrase
'original works of authorship,' which is purposely left undefined,
is intended to incorporate without change
the standard of
originality established by the courts under the present [1909]
copyright statute."
H.R.Rep. No. 94-1476, p. 51 (1976) (emphasis added) (hereinafter
H.R.Rep.); S.Rep. No. 94-473, p. 50 (1975), U.S.Code Cong. &
Admin.News 1976, pp. 5659, 5664 (emphasis added) (hereinafter
S.Rep.). This sentiment was echoed by the Copyright Office: "Our
intention here is to maintain the
established standards of
originality. . . ." Supplementary Report of the Register of
Copyrights on the General Revision of U.S. Copyright Law, 89th
Cong., 1st Sess., Part 6, p. 3 (H. Judiciary Comm. Print 1965)
(emphasis added).
To ensure that the mistakes of the "sweat of the brow" courts
would not be repeated, Congress took additional measures. For
example, § 3 of the 1909 Act had stated that copyright protected
only the "copyrightable component parts" of a work, but had not
identified originality as the basis for distinguishing
Page 499 U. S. 356
those component parts that were copyrightable from those that
were not. The 1976 Act deleted this section and replaced it with §
102(b), which identifies specifically those elements of a work for
which copyright is not available:
"In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method
of operation, concept, principle, or discovery, regardless of the
form in which it is described, explained, illustrated, or embodied
in such work."
§ 102(b) is universally understood to prohibit any copyright in
facts.
Harper Row, supra, at
471 U. S. 547,
471 U. S. 556.
Accord, Nimmer § 2.03[E] (equating facts with
"discoveries"). As with § 102(a), Congress emphasized that § 102(b)
did not change the law, but merely clarified it:
"Section 102(b) in no way enlarges or contracts the scope of
copyright protection under the present law. Its purpose is to
restate . . . that the basic dichotomy between expression and idea
remains unchanged."
H.R.Rep. at 57; S.Rep. at 54, U.S.Code Cong. & Admin.News
1976, p. 5670.
Congress took another step to minimize confusion by deleting the
specific mention of "directories . . . and other compilations" in §
5 of the 1909 Act. As mentioned, this section had led some courts
to conclude that directories were copyrightable
per se,
and that every element of a directory was protected. In its place,
Congress enacted two new provisions. First, to make clear that
compilations were not copyrightable
per se, Congress
provided a definition of the term "compilation." Second, to make
clear that the copyright in a compilation did not extend to the
facts themselves, Congress enacted 17 U.S.C. § 103.
The definition of "compilation" is found in § 101 of the 1976
Act. It defines a "compilation" in the copyright sense as
"a work formed by the collection and assembly 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.)
Page 499 U. S. 357
The purpose of the statutory definition is to emphasize that
collections of facts are not copyrightable
per se. It
conveys this message through its tripartite structure, as
emphasized above by the italics. 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 preexisting 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 469 U. S.
164.
At first glance, the first requirement does not seem to tell us
much. It merely describes what one normally thinks of as a
compilation -- a collection of preexisting material, facts, or
data. What makes it significant is that it is not the
sole
requirement. It is not enough for copyright purposes that an author
collects and assembles facts. To satisfy the statutory definition,
the work must get over two additional hurdles. In this way, the
plain language indicates that not every collection of facts
receives copyright protection. Otherwise, there would be a period
after "data."
The third requirement is also illuminating. It emphasizes that a
compilation, like any other work, is copyrightable only if it
satisfies the originality requirement ("an
original work
of authorship"). Although § 102 states plainly that the originality
requirement applies to all works, the point was emphasized with
regard to compilations to ensure that courts would not repeat the
mistake of the "sweat of the brow" courts by concluding that
fact-based works are treated differently and measured by some other
standard. As Congress explained it, the goal was to
"make plain that the criteria of copyrightable subject matter
stated in section 102 apply with full force to works . . .
containing preexisting material."
H.R.Rep. at 57; S.Rep. at 55.
Page 499 U. S. 358
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.
Not every selection, coordination, or arrangement will pass
muster. This is plain from the statute. It states that, to merit
protection, the facts must be selected, coordinated, or arranged
"in such a way" as to render the work as a whole original. This
implies that some "ways" will trigger copyright, but that others
will not.
See Patry 57, and n. 76. Otherwise, the phrase
"in such a way" is meaningless, and Congress should have defined
"compilation" simply as "a work formed by the collection and
assembly of preexisting materials or data that are selected,
coordinated, or arranged." That Congress did not do so is
dispositive. In accordance with "the established principle that a
court should give effect, if possible, to every clause and word of
a statute,"
Moskal v. United States, 498 U.
S. 103,
498 U. S.
109-110 (1990) (internal quotations omitted), we
conclude that the statute envisions that there will be some
fact-based works in which the selection, coordination, and
arrangement are not sufficiently original to trigger copyright
protection.
As discussed earlier, however, the originality requirement is
not particularly stringent. A compiler may settle upon a selection
or arrangement that others have used; novelty is not required.
Originality requires only that the author make the selection or
arrangement independently (
i.e., without copying that
selection or arrangement from another work), and that it display
some minimal level of creativity. Presumably,
Page 499 U. S. 359
the vast majority of compilations will pass this test, but not
all will. There remains a narrow category of works in which the
creative spark is utterly lacking or so trivial as to be virtually
nonexistent.
See generally Bleistein v. Donaldson Lithographing
Co., 188 U. S. 239,
188 U. S. 251
(1903) (referring to "the narrowest and most obvious limits"). Such
works are incapable of sustaining a valid copyright. Nimmer §
2.01[B].
Even if a work qualifies as a copyrightable compilation, it
receives only limited protection. This is the point of § 103 of the
Act. Section 103 explains that "[t]he subject matter of copyright .
. . includes compilations," § 103(a), but that copyright protects
only the author's original contributions -- not the facts or
information conveyed:
"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."
§ 103(b).
As § 103 makes clear, copyright is not a tool by which a
compilation author may keep others from using the facts or data he
or she has collected.
"The most important point here is one that is commonly
misunderstood today: copyright . . . has no effect one way or the
other on the copyright or public domain status of the preexisting
material."
H.R.Rep. at 57; S.Rep. at 55, U.S.Code Cong. & Admin.News
1976, p. 5670. The 1909 Act did not require, as "sweat of the brow"
courts mistakenly assumed, that each subsequent compiler must start
from scratch, and is precluded from relying on research undertaken
by another.
See, e.g., Jeweler's Circular publishing Co.,
281 F., at 88-89. Rather, the facts contained in existing works may
be freely copied, because copyright protects only the elements that
owe their origin to the compiler -- the selection, coordination,
and arrangement of facts.
In summary, the 1976 revisions to the Copyright Act leave no
doubt that originality, not "sweat of the brow," is the
Page 499 U. S. 360
touchstone of copyright protection in directories and other
fact-based works. Nor is there any doubt that the same was true
under the 1909 Act. The 1976 revisions were a direct response to
the Copyright Office's concern that many lower courts had
misconstrued this basic principle, and Congress emphasized
repeatedly that the purpose of the revisions was to clarify, not
change, existing law. The revisions explain with painstaking
clarity that copyright requires originality, § 102(a); that facts
are never original, § 102(b); that the copyright in a compilation
does not extend to the facts it contains, § 103(b); and that a
compilation is copyrightable only to the extent that it features an
original selection, coordination, or arrangement, § 101.
The 1976 revisions have proven largely successful in steering
courts in the right direction. A good example is
Miller v.
Universal City Studios, Inc., 650 F.2d at 1369-1370:
"A copyright in a directory . . . is properly viewed as resting
on the originality of the selection and arrangement of the factual
material, rather than on the industriousness of the efforts to
develop the information. Copyright protection does not extend to
the facts themselves, and the mere use of information contained in
a directory without a substantial copying of the format does not
constitute infringement."
(Citation omitted.) Additionally, the Second Circuit, which
almost 70 years ago issued the classic formulation of the "sweat of
the brow" doctrine in
Jeweler's Circular Publishing Co.,
has now fully repudiated the reasoning of that decision.
See,
e.g., Financial Information, Inc. v. Moody's Investors Service,
Inc., 808 F.2d 204, 207 (CA2 1986),
cert. denied, 484
U.S. 820 (1987);
Financial Information, Inc. v. Moody's
Investors Service, Inc., 751 F.2d 501, 510 (CA2 1984) (Newman,
J., concurring);
Hoehling v. Universal City Studios, Inc.,
618 F.2d 972, 979 (CA2 1980). Even those scholars who believe that
"industrious collection" should be rewarded seem to recognize that
this is beyond the scope of existing copyright law.
See
Denicola 516 ("the very vocabulary of copyright is ill-suited
Page 499 U. S. 361
to analyzing property rights in works of nonfiction");
id. at 520-521, 525; Ginsburg 1867, 1870.
III
There is no doubt that Feist took from the white pages of
Rural's directory a substantial amount of factual information. At a
minimum, Feist copied the names, towns, and telephone numbers of
1,309 of Rural's subscribers. Not all copying, however, is
copyright infringement. To establish infringement, two elements
must be proven: (1) ownership of a valid copyright, and (2) copying
of constituent elements of the work that are original.
See
Harper & Row, 471 U.S. at
471 U. S. 548.
The first element is not at issue here; Feist appears to concede
that Rural's 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.
See
Brief for Petitioner 18; Pet. for Cert. 9.
The question is whether Rural has proved the second element. In
other words, did Feist, by taking 1,309 names, towns, and telephone
numbers from Rural's white pages, copy anything that was "original"
to Rural? Certainly, the raw data does not satisfy the originality
requirement. Rural may have been the first to discover and report
the names, towns, and telephone numbers of its subscribers, but
this data does not "
ow[e] its origin'" to Rural.
Burrow-Giles, 111 U.S. at 111 U. S. 58.
Rather, these bits of information are uncopyrightable facts; they
existed before Rural reported them, and would have continued to
exist if Rural had never published a telephone directory. The
originality requirement
"rule[s] out protecting . . . names, addresses, and telephone
numbers of which the plaintiff, by no stretch of the imagination,
could be called the author."
Patterson & Joyce 776.
Rural essentially concedes the point by referring to the names,
towns, and telephone numbers as "preexisting material." Brief for
Respondent 17. Section 103(b) states explicitly
Page 499 U. S. 362
that the copyright in a compilation does not extend to "the
preexisting material employed in the work."
The question that remains is whether Rural selected,
coordinated, or arranged these uncopyrightable facts in an original
way. As mentioned, originality is not a stringent standard; it does
not require that facts 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 quotations
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
100 U. S. 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
111 U. S.
59-60.
The selection, coordination, and arrangement of Rural's white
pages do not satisfy the minimum constitutional standards for
copyright protection. As mentioned at the outset, Rural's white
pages are entirely typical. Persons desiring telephone service in
Rural's service area fill out an application, and Rural issues them
a telephone number. In preparing its white pages, Rural simply
takes the data provided by its subscribers and lists it
alphabetically by surname. The end product is a garden-variety
white pages directory, devoid of even the slightest trace of
creativity.
Rural's selection of listings could not be more obvious: it
publishes the most basic information -- name, town, and telephone
number -- about each person who applies to it for telephone
service. This is "selection" of a sort, but it lacks the modicum of
creativity necessary to transform mere selection into copyrightable
expression. Rural expended sufficient effort
Page 499 U. S. 363
to make the white pages directory useful, but insufficient
creativity to make it original.
We note in passing that the selection featured in Rural's white
pages may also fail the originality requirement for another reason.
Feist points out that Rural did not truly "select" to publish the
names and telephone numbers of its subscribers; rather, it was
required to do so by the Kansas Corporation Commission as part of
its monopoly franchise.
See 737 F. Supp. at 612.
Accordingly, one could plausibly conclude that this selection was
dictated by state law, not by Rural.
Nor can Rural claim originality in its coordination and
arrangement of facts. The white pages do nothing more than list
Rural's subscribers in alphabetical order. This arrangement may,
technically speaking, owe its origin to Rural; no one disputes that
Rural undertook the task of alphabetizing the names itself. But
there is nothing remotely creative about arranging names
alphabetically in a white pages directory. It is an age-old
practice, firmly rooted in tradition and so commonplace that it has
come to be expected as a matter of course.
See Brief for
Information Industry Association
et al. as
Amici
Curiae 10 (alphabetical arrangement "is universally observed
in directories published by local exchange telephone companies").
It is not only unoriginal, it is practically inevitable. This
time-honored tradition does not possess the minimal creative spark
required by the Copyright Act and the Constitution.
We conclude that the names, towns, and telephone numbers copied
by Feist were not original to Rural, and therefore were not
protected by the copyright in Rural's combined white and yellow
pages directory. As a constitutional matter, copyright protects
only those constituent elements of a work that possess more than a
de minimis quantum of creativity. Rural's white pages,
limited to basic subscriber information and arranged
alphabetically, fall short of the mark. As a statutory matter, 17
U.S.C. § 101 does not afford protection
Page 499 U. S. 364
from copying to a collection of facts that are selected,
coordinated, and arranged in a way that utterly lacks originality.
Given that some works must fail, we cannot imagine a more likely
candidate. Indeed, were we to hold that Rural's white pages pass
muster, it is hard to believe that any collection of facts could
fail.
Because Rural's white pages lack the requisite originality,
Feist's use of the listings cannot constitute infringement. This
decision should not be construed as demeaning Rural's efforts in
compiling its directory, but rather as making clear that copyright
rewards originality, not effort. As this Court noted more than a
century ago,
"'great praise may be due to the plaintiffs for their industry
and enterprise in publishing this paper, yet the law does not
contemplate their being rewarded in this way.'"
Baker v. Selden, 101 U.S. at
101 U. S.
105.
The judgment of the Court of Appeals is
Reversed.
JUSTICE BLACKMUN concurs in the judgment.
* The Court ultimately rendered judgment for Associated Press on
noncopyright grounds that are not relevant here.
See 248
U.S. at
248 U. S. 235,
248 U. S.
241-242.