Posts Tagged ‘Minimum level of creativity’

Minimum Level of Creativity Case

Friday, August 14th, 2020

In order to be subject to copyright, a work must contain a minimum level of creativity.   A related post covers what is not protected by copyright.

In  Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991), the Supreme Court held that the benchmark of copyright protection is creative originality versus the amount of labor invested into a work.  In that case, the plaintiff, Rural Telephone Service Company, Inc. “Rural,”  provided phone service to several small Kansas communities and by state regulation, was responsible for issuing an annual telephone directory. Plaintiff’s directory was copyrighted as a whole and comprised of both yellow and white pages. The yellow pages held revenue-generating advertisements, while the white pages contained its subscribers’ names, addresses and phone numbers. The defendant, Feist Publications, Inc. “Feist,” was a publishing company that created a directory far larger and more widespread than the plaintiff’s community directory. Feist distributed its directory free of charge and generated revenue through its ads in the yellow pages. Unlike the other telephone service providers in the vicinity who provided directories pursuant to regulation, Rural would not grant a license to Feist for white pages’ information in its directory.  Feist then reproduced Rural’s white pages without consent. Rural sued Feist for copyright infringement. Using the standard of the amount of labor invested into a work, the 10th district court found that Feist was guilty of copyright infringement. The Supreme Court reversed the decision and held that copied information did not meet the minimum standard of creativity required for a work to be granted copyright protection. Feist was allowed to reproduce the white pages without consent.  Rural held no copyright in the pages because they lacked the minimum level of creativity.

In coming to its decision, the Supreme Court considered that the copied information was factual.  Facts cannot be copyrighted because they have no original authorship. Although facts cannot be copyrighted, the compilation of a set of facts may be eligible for copyright protection, if it meets a minimum level of creativity. In the sense of a directory, it might meet a minimum level as the author ultimately chooses where the facts are placed, how they are displayed and in what order they are arranged. If there is some creativity, copyright protection exists for the formatting of the facts, not the facts themselves,  and the facts cannot be protected by association with the original compilation. However, in the Feist case, Rural did nothing creative with the formatting of the information.  It merely listed the information in alphabetical order by name, which does not meet a minimum level of creativity. Since Rural’s white pages lacked the requisite originality, Feist’s use of the listings did not constitute infringement.

For a case where a compilation was entitled to copyright protection by Lee Anne LeBlanc on appeal, see Sethscot Collection v. Drbul, 669 So. 2d 1076 (Fla. 3rd DCA, 1996).  In that case, the arrangement of facts met the level of minimum creativity required for copyright.

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