Class 4 Copyright, Autumn, 2016 Facts and Compilations 11/9/2018 Class 4 Copyright, Autumn, 2016 Facts and Compilations Randal C. Picker James Parker Hall Distinguished Service Professor of Law Ludwig & Hilde Wolfe Teaching Scholar The Law School The University of Chicago

Feist Rural Telephone Service 11/9/2018 Feist Rural Telephone Service the local phone company in northwest Kansas Provide service, assign phone numbers, get all of the info as a byproduct of those activities Required by law to issue phone book November 9, 2018

Feist Feist Publications 11/9/2018 Feist Distribute phone books: free to consumers, charge companies to be in Yellow Pages Feist Publications Entrant into area-wide phone book market Struck deal with 10 of 11 to license listings; Rural refused Feist got names from phone book; sought to verify listings; did most not all November 9, 2018

Legal “Facts” in Feist “Two Well-Established Propositions” 11/9/2018 Legal “Facts” in Feist “Two Well-Established Propositions” Facts are not copyrightable Compilations of facts are copyrightable November 9, 2018

Copyright’s Incentives 11/9/2018 Copyright’s Incentives Do we need to give Rural a copyright in the phone listings to incentive it to issue the phone book? November 9, 2018

Facts and Copyright Single Facts Start with Sec. 102(b): 11/9/2018 Facts and Copyright Single Facts Start with Sec. 102(b): 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. November 9, 2018

Facts as Discoveries Putting the language to one side 11/9/2018 Facts as Discoveries Putting the language to one side Authors as discovering facts, not creating them Facts as existing independent of the author, hence no origination November 9, 2018

Groups of Facts: Compilations 11/9/2018 Groups of Facts: Compilations The definition of compilation in Sec. 101: A “compilation” is 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. November 9, 2018

Groups of Facts: Compilations 11/9/2018 Groups of Facts: Compilations Sec. 103(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. November 9, 2018

Groups of Facts: Compilations 11/9/2018 Groups of Facts: Compilations Sec. 103(b) The copyright in a compilation or derivative work 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. November 9, 2018

Groups of Facts: Compilations 11/9/2018 Groups of Facts: Compilations The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. November 9, 2018

What is Copyrightable in a Compilation? 11/9/2018 What is Copyrightable in a Compilation? S/C/A Selection Coordination Arrangement November 9, 2018

The Heart of Copyright Hard work (“sweat of the brow”) v. originality 11/9/2018 The Heart of Copyright Hard work (“sweat of the brow”) v. originality Feist finds originality to be a constitutional requirement for copyright protection by Congress Raises difficult issues about the ability of Congress to protect merely hard work creations, even under, say, the Commerce Clause November 9, 2018

Feist and Compilation Originality Says the Court: “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 November 9, 2018

Feist and Compilation Originality “(i.e., without copying that selection or arrangement from another work), and that it display some minimal level of creativity. Presumably, 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.” November 9, 2018

Facts and Copyright Two Paths to Pursue I want to copyright a “fact” or something fact-like. Can I do that? What compilations will suffice? November 9, 2018

Understanding “Facts” 11/9/2018 Understanding “Facts” Three Situations Market Information The SAT The “real” story of John Dillinger November 9, 2018

3.95 Is the number 3.95 copyrightable? November 9, 2018

Price Determination on Exchanges Hypo? Company, call it the New York Mercantile Exchange, runs a market on which contracts are traded It is required pursuant to CFTC regulations (see 17 CFR 16.01) to determine daily settlement prices for contracts November 9, 2018

Price Determination on Exchanges Depending on trading volume, this is not a purely mechanical exercise and so, at least in some circumstances, Company uses its independent judgment in recording the closing price Are those prices copyrightable? Does Company author those prices or does it just discover prices? November 9, 2018

Market Surveys Hypo? Copyright infringement? Bankco surveys banks across the country to calculate an average interest rate for particular terms Second firm, call it Costco, quotes one of those rates in its own ads Copyright infringement? November 9, 2018

Market Surveys Does it matter how Bankco does the survey? How it calculates the average? November 9, 2018

Market Predictions Hypo? Corp publishes a guide to used car prices. Although Corp surveys actual market transactions, it doesn’t report mere averages but instead offers forecasts (predictions) of what prices will be like over the next six weeks November 9, 2018

Market Predictions “We predict that a 2008 Red Honda Accord with 70,000 miles on it will sell for $19,500 over the 6 weeks.” Copyrightable? Does it matter if the predictions match exactly the market averages calculated from market surveys? November 9, 2018

Answers 1. Market Exchange Price 2. Interest Rate Average No 2. Interest Rate Average 3. Used Car Value Forecast Yes November 9, 2018

Cases: Price Determination on Exchanges New York Mercantile Exchange Inc. v. IntercontinentalExchange, Inc., 497 F.3d 109 (2nd Cir. 2007) “The question then, is one of characterization: does the Committee create the settlement prices, or is it more accurate to view the Committee’s task as like that of a census taker, copying the market's valuation of futures contracts?” November 9, 2018

Cases: Price Determination on Exchanges “While the line between creation and discovery is often clear-cut, we recognize that it is a difficult line to draw in this case. For reasons we explain below, we believe there is a strong argument that, like the census taker, NYMEX does not ‘author’ the settlement prices as the term is used in copyright law.” November 9, 2018

Cases: Market Surveys Banxcorp v. Costco Wholesale Corp., 978 F.Supp.2d 280 (SDNY 2013) “… [T]he Court determines that, even drawing all reasonable inferences from the evidence in Plaintiff's favor, the averages are unprotectable because they are uncopyrightable facts, because they are too short to be copyrighted, and because the so-called merger doctrine … bars copyright protection.” November 9, 2018

Cases: Market Predictions CCC Information Services, Inc. v. Maclean Hunter Market Reports, Inc., 44 F.3d 61 (2nd Cir. 1994) “The district court was simply mistaken in its conclusion that the Red Book valuations were, like the telephone numbers in Feist, pre-existing facts that had merely been discovered by the Red Book editors.” November 9, 2018

Cases: Market Predictions “To the contrary, Maclean’s evidence demonstrated without rebuttal that its valuations were neither reports of historical prices nor mechanical derivations of historical prices or other data. Rather, they represented predictions by the Red Book editors of future prices estimated to cover specified geographic regions. … The valuations themselves are original creations of Maclean.” November 9, 2018

Cases: Market Predictions “The balancing of interests … leads to the conclusion that we should reject CCC’s argument seeking the benefit of the merger doctrine. Because the ideas contained in the Red Book are of the weaker, suggestion-opinion category, a withholding of the merger doctrine would not seriously impair the policy of the copyright law that seeks to preserve free public access to ideas.” November 9, 2018

The SAT: Cultural Facts? 11/9/2018 The SAT: Cultural Facts? The Seinfeld Aptitude Test: Level 1 To impress a woman, George passes himself off as: (a) a doctor (b) a geologist (c) a marine biologist (d) a meteorologist November 9, 2018

Cases: Cultural Facts Castle Rock Entertainment v. Carol Publishing Group, Inc., 150 F.3d 132 (2nd Cir. 1998) “We conclude that The SAT unlawfully copies from Seinfeld and that its copying does not constitute fair use and thus is an actionable infringement.” November 9, 2018

Cases: Cultural Facts … [E]ach SAT trivia question is based directly upon original protectable expression in Seinfeld. … The SAT did not copy from Seinfeld unprotected facts, but, rather, creative expression.” November 9, 2018

The Fictional Dillinger 11/9/2018 The Fictional Dillinger Hypo Nash writes a novel setting forth an alternative fictional account of the notorious John Dillinger’s life CBS makes TV episode of that Nash alleges copyright infringement: does he win? November 9, 2018

11/9/2018 Answer Yes November 9, 2018

Nash v. CBS (7th Cir. 1990) Core Facts 11/9/2018 Nash v. CBS (7th Cir. 1990) Core Facts Nash publishes books describing what he believes actually happened to John Dillinger Claims this to be “fact;” “the truth” CBS broadcasts an episode of Simon and Simon that incorporates some of Nash’s facts Nash claims a copyright violation: does he win? November 9, 2018

11/9/2018 Answer No “The producers of Simon and Simon used Nash’s work as Nash has used others’: as a source of facts and ideas, to which they added their distinctive overlay. As the district court found, CBS did no more than § 102(b) permits. Because The Dillinger Print uses Nash's analysis of history but none of his expression, the judgment is AFFIRMED.” November 9, 2018

U.S. Copyright Office Compendium (3rd ed, 22 Dec 2014) November 9, 2018

November 9, 2018 Compendium (3rd ed)

November 9, 2018 Compendium (3rd ed)

Pantomimes and Choreographic Works Works of authorship include the following categories: (4) pantomimes and choreographic works; November 9, 2018

Pantomimes and Choreographic Works 106(4) Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; November 9, 2018

Pantomimes and Choreographic Works 106(5) (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; November 9, 2018

New Poem I Hypo: “An Ode to Copyright” Copyrightable? Compilation? A 26-word poem about copyright Copyrightable? Compilation? November 9, 2018

Answer Yes Ordinary original work of authorship Not created from preexisting material, there not a compilation Individual words shouldn’t could qualify as preexisting material November 9, 2018

New Poem II Hypo: “An Ode to Copyright” Does that change anything? A 26-word poem about copyright I claim reading the poem will help you achieve a state of inner peace fMRI test shows physical response in brain to reading poem Does that change anything? November 9, 2018

Answer Don’t know for sure but We should expect engagement with copyrighted works to produce physical reactions The point of the work is to induce something (laughter, tears, etc.) If existence of physical response bars copyright, copyright won’t be very meaningful November 9, 2018

Answer Don’t know for sure but Poem should remain within copyright What we should worry about is the ability to monopolize function through copyright The fact that my poem induces a physical reaction won’t block you from producing the same physical reaction with a different poem Poem should remain within copyright November 9, 2018

New Book I Hypo: “The 26 Facts Every Law Student Must Know” “John Roberts is the chief justice of the U.S. Supreme Court.” Plus 25 more. Copyrightable? Compilation? November 9, 2018

Answer Yes This is a compilation of preexisting materials The key issue for copyrightability is selection, coordination and arrangement This should qualify as an original copyrighted work November 9, 2018

New Book II Hypo: “The 26 Facts Every Law Student Must Know” Book as before. My claim: “Knowing these facts will help you achieve an inner calm. And I have the blood pressure measurements to prove it.” Still copyrightable? November 9, 2018

Answer Same as the poem before; shouldn’t change anything November 9, 2018

New Dance I Hypo: “Searching for Copyright” Twenty six dance steps, repeated. Interpretive dance, not a social dance Copyrightable? Compilation? November 9, 2018

Answer Consult the Compendium? Section 805 on Choreographic Works 14.5 pages of analysis Section 806 on Pantomimes 6.5 pages of analysis November 9, 2018

November 9, 2018 Compendium (3rd ed)

November 9, 2018 Compendium (3rd ed)

Answer Done Correctly Covered by 102(a)(4) Enjoys the rights set out in 106(4), 106(5) Treat individual dance steps as equivalent to words in poem, so not a compilation November 9, 2018

New Dance II Hypo: “Searching for Copyright” Still copyrightable? Twenty six dance steps, repeated, as before. My claim: “Doing this dance will be good for your cardiovascular system. And I have the blood pressure measurements to prove it.” Still copyrightable? November 9, 2018

Answer Replay of before Existence of physical response to work shouldn’t block copyright if the work would otherwise qualify Again, not concerned here about grabbing unique control over functionality November 9, 2018

November 9, 2018 Compendium (3rd ed)

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Bikram Teacher Training Agreement November 9, 2018

Bikram Teacher Training Agreement November 9, 2018

Bikram Teacher Training Agreement November 9, 2018

Bikram Teacher Training Agreement November 9, 2018

Bikram Teacher Training Agreement November 9, 2018

Bikram Teacher Training Agreement November 9, 2018

Bikram Teacher Training Agreement November 9, 2018

New Yoga I Hypo: The Picker Yoga Method Copyrightable? Compilaton? A sequence of twenty six yoga poses. Copyrightable? Compilaton? November 9, 2018

New Yoga I Hypo: The Picker Yoga Method Does that change anything? A sequence of twenty six yoga poses. I claim health benefits from doing it Does that change anything? November 9, 2018