Labor Day is the wrong time to think about copyright law, especially in 2016, because this year marks the twenty fifth anniversary of the Supreme Court’s decision in Feist Publications v. Rural Telephone Service, 499 U.S. 340 (1991). That’s the case that took the “labor” out of copyright jurisprudence by ending the “sweat of the brow” doctrine.
Why was “labor” a factor in the first place? The answer starts with the sine qua non of copyright law: originality. An authored work must express a modicum of originality in order to be protected by a copyright. Therefore, facts don’t get protected, because they don’t spring from an act of original authorship.
But here is where it gets tricky. What about a compilation of facts, such as a directory or certain almanacs? Can that be protected by copyright? Yes, in theory, but the protection is “thin;” it applies only to an original “selection and arrangement” of those facts. Someone can come along and copy the facts from your compilation (which are not original), provided they don’t use your original selection and arrangement of those facts.
However, this distinction between compiled fact and original selection and arrangement was not always expressly stated in the federal copyright statutes. Some courts (including both the Second and Ninth Circuits) interpreted the Copyright Act of 1909 as providing copyright protection for fact compilations irrespective of originality. These courts justified their interpretation as rewarding the “sweat of the brow” or the “industrious collection” that went into the compilation process. Under this doctrine, a subsequent compiler could not copy facts from the first compiler, but rather “had to independently work out the matter for himself, so as to arrive at the same result from the same common sources of information.”
Feist and the Death of the “Sweat of the Brow”
The “sweat of the brow” doctrine had been abandoned by many courts prior to Feist, but it was Feist that put the final nail in its coffin. In that case, the plaintiff was a telephone company that produced its own phone book, and the defendant was a publishing company that wanted to produce a competing phone book. The defendant offered to pay the plaintiff for the use of its listings, but the plaintiff refused, so the defendant simply copied those listings without permission. This prompted the plaintiff to bring a copyright infringement action.
The Supreme Court, in an opinion by Justice Sandra Day O’Connor, ruled in favor of the defendant and held that the phone book was not protected by copyright. The raw data — the names, addresses and telephone numbers — were facts that were not copyrightable. And, although the selection and arrangement of those facts were in theory copyrightable if original, the Court held that there was no originality here. The plaintiff had not truly “selected” its listings at all, but simply had included all of its telephone service subscribers as required by law. As to “arrangement,” a simple alphabetical arrangement by subscriber last name was hardly original. Therefore, the defendant was free to copy the plaintiff’s work.
Justice O’Connor admitted that allowing copiers to benefit from the fruits of a fact compiler’s labor may seem unfair but, citing to Article I, Section 8, Clause 8 of the Constitution (the “Copyright Clause”), she held that “the essence of copyright is not to reward the labor of authors, but to promote the progress of science and the useful arts.” Since Feist, the creators of unoriginal fact compilations have had to turn to other legal theories, such as unfair competition, to protect their work.