Originality and Creativity in Copyright Law

Copyright law can be broadly viewed as a system that seeks an appropriate balance between the rights of authors and publishers with the rights of users and consumers. The case of Feist Publications Inc vs Rural Telephone Service Co is discussed

Thin But Not Anorexic: Copyright Protection for Compilations and Other Fact Works

Questions about the copyrightability of compilations and other low authorship fact works, and about the scope of protection, have continued to trouble courts long after the Supreme Court\u27s landmark decision in Feist Publications, Inc. v. Rural Telephone Services Co. in 1991. Justice O\u27Connor\u27s opinion, explaining why a standard white pages telephone directory did not meet the constitutional and statutory requirements for copyright protection, defined an original work of authorship as one that is independently created by its author and that evidences at least a minimal level of creativity. The latter requirement has been elusive, in part because Justice O\u27Connor defined creativity by negative example, describing how an author\u27s efforts in preparing a compilation might not satisfy the requirement. This Article, with the help of many post-Feist opinions, elaborates on Justice O\u27Connor\u27s guidance for determining whether a compilation or other low authorship work is entitled to copyright protection and, if so, whether the work has been infringed. It was observed forty years ago to make the copyright turnstile revolve, the author should have to deposit more than a penny in the box, and some like measure ought to apply to infringement. This Article explains how much more than a penny is needed to get through the turnstile and that courts have been relatively consistent in applying Feist in a variety of contexts, thereby ensuring that copyright does not improperly extend to facts, ideas, systems and concepts. Traditional case-by-case application of the fundamental principles of Feist is working well and the sweat of the brow rationale for protection has not been resurrected

Thin But Not Anorexic: Copyright Protection for Compilations and Other Fact Works

Questions about the copyrightability of compilations and other low authorship fact works, and about the scope of protection, have continued to trouble courts long after the Supreme Court\u27s landmark decision in Feist Publications, Inc. v. Rural Telephone Services Co. in 1991. Justice O\u27Connor\u27s opinion, explaining why a standard white pages telephone directory did not meet the constitutional and statutory requirements for copyright protection, defined an original work of authorship as one that is independently created by its author and that evidences at least a minimal level of creativity. The latter requirement has been elusive, in part because Justice O\u27Connor defined creativity by negative example, describing how an author\u27s efforts in preparing a compilation might not satisfy the requirement. This Article, with the help of many post-Feist opinions, elaborates on Justice O\u27Connor\u27s guidance for determining whether a compilation or other low authorship work is entitled to copyright protection and, if so, whether the work has been infringed. It was observed forty years ago to make the copyright turnstile revolve, the author should have to deposit more than a penny in the box, and some like measure ought to apply to infringement. This Article explains how much more than a penny is needed to get through the turnstile and that courts have been relatively consistent in applying Feist in a variety of contexts, thereby ensuring that copyright does not improperly extend to facts, ideas, systems and concepts. Traditional case-by-case application of the fundamental principles of Feist is working well and the sweat of the brow rationale for protection has not been resurrected

Copyright as a Rule of Evidence

Many copyright doctrines serve to exclude from the copyright regime cases particularly prone to evidentiary complexity. The implicit logic is that, for these cases, the social costs of litigation would likely outweigh the social benefits derived from offering copyright protection in the first place. Doctrines that serve this evidentiary function include some doctrines for which an evidentiary purpose is readily apparent (for example, the requirement that eligible works be fixed in tangible form), and some for which the link is quite subtle (for example, the rule against protecting work that lacks creativity). Understanding these doctrines in this light helps to refine their proper scope and application. It also makes clear a problem facing copyright law more generally: the increasing divergence between the logical justifications for various copyright doctrines and their actual use by courts and commentators

Uncreative Designs

It is often said that the standards for patent protection are higher than the standards for copyright protection. Specifically, commentators assert that the copyright requirement of originality is easier to satisfy than the patent requirements of novelty and nonobviousness. And yet, the USPTO regularly grants patents for designs that fall below the low standard of copyright originality set by the Supreme Court in Feist v. Rural. Some may suggest that the existence of these “sub-Feist” design patents is a result of the USPTO abandoning its duty to scrutinize design patent applications. Or they may suggest that it is a result of the Federal Circuit making it more difficult to invalidate designs as anticipated or obvious. This Article argues that sub-Feist designs exist because the standard for “originality” (at least, in the sense of “minimal creativity”) is not really “lower” than novelty or nonobviousness—it’s just different. This has implications for how we think about the law and theory of copyright and patents as well as specific implications for design patent law and practice. Importantly, this suggests that we should take the word “original”—which is also an explicit statutory requirement for design patents—seriously. We should not assume that a design that qualifies, under the Patent Act, as “novel” and “nonobvious” is also “original” under the Feist standard. And if, as the Supreme Court has held, the Feist originality standard is a requirement of the Progress Clause, we should not let applicants use design patents to evade that requirement

News on the Internet

Newspapers are in trouble. Circulation and advertising are down as readers shift from print to online media. Although changing reader preferences and the loss of lucrative classified advertising to online sources are major worries, the news media seems preoccupied with news aggregators and bloggers who distribute news content on the internet without permission. Newspapers are not the only ones worried about the unauthorized distribution of their news on the internet. Financial services companies are unhappy about the distribution of their hot stock recommendations and other content providers seek to control online news ranging from movie schedules to business ratings. Traditional copyright doctrine offers varying degrees of protection for the literary format of the news — broad in scope for the text of news stories, narrower and less certain for smaller expressions like news headlines and leads. Content providers want more. They seek to control the online distribution not just of their literary forms, but of the very facts that are the news itself. The battle is being waged on two fronts. One involves an attempt to extend the traditional scope of copyright beyond the protection of expression into the previously forbidden realm of facts. The second front involves efforts by content providers to enlist the century-old common law tort of misappropriation. The reemergence of the misappropriation tort from the shadow of federal copyright law is somewhat improbable, resting as it does on a single paragraph of legislative history, extracted from an ABA Committee Report, that was directed at a portion of the copyright revision bill that was never actually enacted. Nevertheless, its application to news on the internet has been cheered by many commentators. This Article examines the recent attempts by content providers to gain control over facts through federal copyright law and the common law tort of misappropriation