CITE: 499 U.S. 340
CMON: March 1991
PLAIN: Feist Publications
DEFND: Rural Telephone Service
COURT: United States Supreme Court
DATE: March 27, 1991
HISTORY:
Certiorari to the United States Court of Appeals for the Tenth Circuit.
A telephone company that was a certified public utility providing telephone
service to several communities in Kansas, and that was subject to a state
regulation requiring all telephone companies operating in the state to issue
annually an updated telephone directory, published a typical telephone
directory, consisting of white pages and yellow pages. The white pages
listed in alphabetical order the names of the telephone company's
subscribers, together with their towns and telephone numbers. The telephone
company obtained the data for its white pages from the company's subscribers,
who were required to provide their names and addresses when applying for
telephone service from the company. A publishing company, which specialized
in areawide telephone directories covering a much larger geographical range
than did directories such as that of the telephone company, offered to pay
the telephone company for the right to use its white pages listings, but
the telephone company refused to license its listings to the publishing
company. Subsequently, the publishing company used the telephone company's
white pages listings without the telephone company's consent. Although the
publishing company sought to obtain additional information, such as street
addresses, for the listings that it took from the telephone company's white
pages, many of the listings in the publishing company's areawide directory
that covered part of the telephone company's service area were identical
to listings in the telephone company's white pages.
In a copyright infringement suit brought by the telephone company against
the publishing company, the United States District Court for the District
of Kansas, explaining that courts had consistently held that telephone
directories were copyrightable, granted summary judgment to the telephone
company (663 F Supp 214). The United States Court of Appeals for the Tenth
Circuit, in an unpublished opinion, affirmed the District Court judgment
for substantially the reasons given by the District Court (916 F.2d 718).
916 F. 2d 718, reversed.
SUMMARY:
Facts are not copyrightable for not being authored. Original
compilations of facts are copyrightable where selection and
arrangement of facts occurs. "Original" means independent creation,
not novelty. One can copy facts from compilation if expressed differently.
The primary objective of copyright is not to reward the labor
of authors, but to promote the progress of science and useful arts.
Copyright is not a reward for "sweat of the brow" compilations.
JUDGE: O'Connor, Justice
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.
DECISION:
This case requires us to clarify the extent of copyright protection
available to telephone directory white pages.
I
Rural Telephone Service Company, Inc., 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 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
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 (P 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 "courts 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, judgment
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 "no author may copyright his ideas or the facts he narrates". Harper
& Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556 (1985).
Rural wisely concedes this point, noting in its brief that "facts 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 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 Sections
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.,
Section 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, 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, Section 8, cl. 8, of the
Constitution, which authorizes Congress to "secure 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 94. The Court explained that originality requires
independent creation plus a modicum of creativity: "While 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 58 (internal quotation marks 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", 111 U.S., at 58, and stressed the importance
of requiring an author who accuses another of infringement to prove "the
existence of those facts of originality, of intellectual production, of
thought, and conception." Id., at 59-60.
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, 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 Section 1.06[A] ("Originality
is a statutory as well as a constitutional requirement"); id., Section
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., Section 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
58. "The discoverer merely finds and records.". Nimmer Section 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 Section 2.03[E]. The same is true of
all facts -- scientific, historical, biographical, and news of the day.
"They 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 Sections 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 547. Accord, Nimmer Section 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 556-557, but that he could prevent others
from copying his "subjective descriptions and portraits of public figures".
Id., at 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: "No matter
how much original authorship the work displays, the facts and ideas it
exposes are free for the taking. . . . The 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 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 "to promote the Progress of Science and useful Arts". Art. I,
Section 8, cl. 8. Accord, Twentieth Century Music Corp. v. Aiken,
422 U.S. 151, 156 (1975). To this end, copyright assures authors the right
to their original expression, but encourages others to build freely upon
the ideas and information conveyed by a work. Harper & Row, supra, at
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, 103 (1880). We reiterated this point in
Harper & Row:
"No 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.
"Copyright 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 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 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 Section 2.01. The subject matter of copyright
was set out in Sections 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, Section 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 . . . creator, originator' it follows that a work is not
the product of an author unless the work is original." Nimmer Section 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 Sections 3 and 4, focusing their attention instead on Section 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 "books, including
composite and cyclopaedic works, directories, gazetteers, and other
compilations." Section 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 is defined in section four." Nevertheless, the fact that
factual compilations were mentioned specifically in Section 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
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 work 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
"ensuring 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 Section 5 of the Act specifically mentioned "'periodicals,
including newspapers,'" Section 5(b), the Court acknowledged that news
articles were copyrightable. Id., at 234. It flatly rejected, however,
the notion that the copyright in an article extended to the factual
information it contained: "The 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. {n1}
Without a doubt, the "sweat of the brow" doctrine flouted basic copyright
principles. Throughout history, copyright law has "recognized a greater
need to disseminate factual works than works of fiction or fantasy."
Harper & Row, 471 U.S., at 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, "it 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 Section 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, 159 (1985), the Copyright Office promptly recommended
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 requisite"
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.
Section 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) (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., pt. 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, Section 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 those component parts that were copyrightable
from those that were not. The 1976 Act deleted this section and replaced
it with Section 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." Section 102(b) is
universally understood to prohibit any copyright in facts. Harper &
Row, supra, at 547, 556. Accord, Nimmer Section 2.03[E] (equating facts
with "discoveries"). As with Section 102(a), Congress emphasized that
Section 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.
Congress took another step to minimize confusion by deleting the specific
mention of "directories . . . and other compilations" in Section 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 Section 103.
The definition of "compilation" is found in Section 101 of the 1976 Act.
It defines a "compilation" in the copyright sense as "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" (emphasis added).
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 pre-existing 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. "This 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 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 pre-existing 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
Section 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.
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 straight-forward 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, 109-110 (1990) (internal quotation marks 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, 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, 251 (1903) (referring to "the narrowest and most obvious
limits"). Such works are incapable of sustaining a valid copyright.
Nimmer Section 2.01[B].
Even if a work qualifies as a copyrightable compilation, it receives
only limited protection. This is the point of Section 103 of the Act.
Section 103 explains that "the subject matter of copyright . . . includes
compilation", Section 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." Section 103(b).
As Section 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. 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 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, Section 102(a); that facts are never original,
Section 102(b); that the copyright in a compilation does not extend to
the facts it contains, Section 103(b); and that a compilation is
copyrightable only to the extent that it features an original selection,
coordination, or arrangement, Section 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
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 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 "'owe
its origin'" to Rural. Burrow-Giles, 111 U.S., at 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
"rules 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 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 quotation marks
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 94; and an author who claims infringement
must prove "the existence of . . . intellectual production, of thought,
and conception." Burrow-Giles, supra, at 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
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
acts. 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. Section 101 does not afford protection 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 105.
The judgment of the Court of Appeals is Reversed.
Justice Blackmun concurs in the judgment.
FOOTNOTES:
{n1} The Court ultimately rendered judgment for Associated Press on
non-copyright grounds that are not relevant here. See 248 U.S., at 235,
241-242.