FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE CO., 499 U.S.

340 reported by Rural and sought to obtain additional information. As a result, a typical Feist listing includes
(1991) the individual's street address; most of Rural's listings do not. Notwithstanding these additions,
O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and however, 1,309 of the 46,878 listings in Feist's 1983 directory were identical to listings in Rural's 1982-
WHITE, MARSHALL, STEVENS, SCALIA, KENNEDY, and SOUTER, JJ., joined. 1983 white pages. App. 54 (para. 15-16), 57. Four of these were fictitious listings that Rural had
BLACKMUN, J., concurred in the judgment. inserted into its directory to detect copying.

[7] Rural sued for copyright infringement in the District Court for the District of Kansas taking the
[p*342] JUSTICE O'CONNOR delivered the opinion of the Court. 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
[1] This case requires us to clarify the extent of copyright protection available to telephone directory telephone survey to discover the same information for themselves. Feist responded that such efforts
white pages. 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
I 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 In an unpublished opinion, the Court of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
[2] Rural Telephone Service Company is a certified public utility that provides telephone service to Pet. for Cert. 4a, judgt. order reported at 916 F. 2d 718 (1990). We granted certiorari, 498 U.S. 808
several communities in northwest Kansas. It is subject to a state regulation that requires all telephone (1990), to determine whether the copyright in Rural's directory protects the names, towns, and
companies operating in Kansas to issue annually an updated telephone directory. Accordingly, as a telephone numbers copied by Feist.
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, II
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. A

[3] Feist Publications, Inc., is a publishing company that specializes in area-wide telephone directories. [8] This case concerns the interaction of two well-established propositions. The first is that facts are not
Unlike a typical [p*343] directory, which covers only a particular calling area, Feist's area-wide copyrightable; the other, that compilations of facts generally are. Each of these propositions possesses
directories cover a much larger geographical range, reducing the need to call directory assistance or an impeccable pedigree. That there can be no valid copyright in facts is universally understood. The
consult multiple directories. The Feist directory that is the subject of this litigation covers 11 different most fundamental axiom of copyright law is that [p*345] "no author may copyright his ideas or the facts
telephone service areas in 15 counties and contains 46,878 white pages listings -- compared to Rural's he narrates." Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556 (1985). Rural
approximately 7,700 listings. Like Rural's directory, Feist's is distributed free of charge and includes wisely concedes this point, noting in its brief that "facts and discoveries, of course, are not themselves
both white pages and yellow pages. Feist and Rural compete vigorously for yellow pages advertising. 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.
[4] 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 [9] There is an undeniable tension between these two propositions. Many compilations consist of
one with monopoly status, and therefore lacks independent access to any subscriber information. To nothing but raw data -- i. e., wholly factual information not accompanied by any original written
obtain white pages listings for its area-wide directory, Feist approached each of the 11 telephone expression. On what basis may one claim a copyright in such a work? Common sense tells us that 100
companies operating in northwest Kansas and offered to pay for the right to use its white pages listings. 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.
[5] 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 [10] The key to resolving the tension lies in understanding why facts are not copyrightable. The sine qua
that which we review here, the District Court determined that this was precisely the reason Rural non of copyright is originality. To qualify for copyright protection, a work must be original to the author.
refused to license its listings. The refusal was motivated by an unlawful purpose "to extend its monopoly See Harper & Row, supra, at 547-549. Original, as the term is used in copyright, means only that the
in telephone service to a monopoly in yellow pages advertising." Rural Telephone Service Co. v. Feist work was independently created by the author (as opposed to copied from other works), and that it
Publications, Inc., 737 F. Supp. 610, 622 (Kan. 1990). possesses at least some minimal degree of creativity. 1 M. Nimmer & D. Nimmer, Copyright §§ 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
[6] Unable to license Rural's white pages listings, Feist used them without Rural's consent. Feist began creative spark, "no matter how crude, humble or obvious" it might be. Id., § 1.08[C][1]. Originality does
by removing several thousand listings that fell outside the geographic range of its area-wide directory, not signify novelty; a work may be original even though it closely resembles other works so long as the
then hired personnel to investigate the 4,935 that remained. These employees verified [p*344] the data similarity is fortuitous, not the result of copying. To illustrate, [p*346] assume that two poets, each
ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, [16] Factual compilations, on the other hand, may possess the requisite originality. The compilation
copyrightable. See Sheldon v. Metro-Goldwyn Pictures Corp., 81 F. 2d 49, 54 (CA2 1936). 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
[11] Originality is a constitutional requirement. The source of Congress' power to enact copyright laws is arrangement, so long as they are made independently by the compiler and entail a minimal degree of
Article I, § 8, cl. 8, of the Constitution, which authorizes Congress to "secure for limited Times to creativity, are sufficiently original that Congress may protect such compilations through the copyright
Authors . . . the exclusive Right to their respective Writings." In two decisions from the late 19th Century laws. Nimmer §§ 2.11[D], 3.03; Denicola 523, n. 38. Thus, even a directory that contains absolutely no
-- The Trade-Mark Cases, 100 U.S. 82 (1879); and Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. protectible written expression, only facts, meets the constitutional minimum for copyright protection if it
53 (1884) -- this Court defined the crucial terms "authors" and "writings." In so doing, the Court made it features an original selection or arrangement. See Harper & Row, 471 U.S., at 547. Accord Nimmer §
unmistakably clear that these terms presuppose a degree of originality. 3.03.

[12] In The Trade-Mark Cases, the Court addressed the constitutional scope of "writings." For a [17] This protection is subject to an important limitation. The mere fact that a work is copyrighted does
particular work to be classified "under the head of writings of authors," the Court determined, "originality not mean that every element of the work may be protected. Originality remains the sine qua non of
is required." 100 U.S., at 94. The Court explained that originality requires independent creation plus a copyright; accordingly, copyright protection may extend only to those components of a work that are
modicum of creativity: "While the word writings may be liberally construed, as it has been, to include original to the author. Patterson & Joyce 800-802; Ginsburg, Creation and Commercial Value: Copyright
original designs for engraving, prints, &c., it is only such as are original, and are founded in the creative Protection of Works of Information, 90 Colum. L. Rev. 1865, 1868, and n. 12 (1990) (hereinafter
powers of the mind. The writings which are to be protected are the fruits of intellectual labor, embodied Ginsburg). Thus, if the compilation author clothes facts with an original collocation of words, he or she
in the form of books, prints, engravings, and the like." Ibid. (emphasis in original). 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
[13] In Burrow-Giles, the Court distilled the same requirement from the Constitution's use of the word autobiography, see 471 U.S., at 556-557, but that he could prevent others from copying his "subjective
"authors." The Court defined "author," in a constitutional sense, to mean "he to whom anything owes its descriptions and portraits of public figures." [p*349] Id., at 563. Where the compilation author adds no
origin; originator; maker." 111 U.S., at 58 (internal quotations omitted). As in The Trade-Mark Cases, written expression but rather lets the facts speak for themselves, the expressive element is more
the Court emphasized the creative component of originality. It described copyright as being limited to elusive. The only conceivable expression is the manner in which the compiler has selected and
"original intellectual conceptions of the author," ibid., and stressed the importance of requiring an author arranged the facts. Thus, if the selection and arrangement are original, these elements of the work are
who accuses another of infringement to prove "the existence [p*347] of those facts of originality, of eligible for copyright protection. See Patry, Copyright in Compilations of Facts (or Why the "White
intellectual production, of thought, and conception." Id., at 59-60. 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
[14] The originality requirement articulated in The Trade-Mark Cases and Burrow-Giles remains the Patterson & Joyce 776.
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 [18] This inevitably means that the copyright in a factual compilation is thin. Notwithstanding a valid
1981). Leading scholars agree on this point. As one pair of commentators succinctly puts it: "The copyright, a subsequent compiler remains free to use the facts contained in an another's publication to
originality requirement is constitutionally mandated for all works." Patterson & Joyce, Monopolizing the aid in preparing a competing work, so long as the competing work does not feature the same selection
Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L. Rev. and arrangement. As one commentator explains it: "No matter how much original authorship the work
719, 763, n. 155 (1989) (emphasis in original) (hereinafter Patterson & Joyce). Accord id., at 759-760, displays, the facts and ideas it exposes are free for the taking . . . . The very same facts and ideas may
and n. 140; Nimmer § 1.06[A] ("originality is a statutory as well as a constitutional requirement"); id., § be divorced from the context imposed by the author, and restated or reshuffled by second comers, even
1.08[C][1] ("a modicum of intellectual labor . . . clearly constitutes an essential constitutional element"). if the author was the first to discover the facts or to propose the ideas." Ginsburg 1868.

[15] It is this bedrock principle of copyright that mandates the law's seemingly disparate treatment of [19] It may seem unfair that much of the fruit of the compiler's labor may be used by others without
facts and factual compilations. "No one may claim originality as to facts." Id., § 2.11[A], p. 2-157. This is compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen
because facts do not owe their origin to an act of authorship. The distinction is one between creation byproduct of a statutory scheme." Harper & Row, 471 U.S., at 589 (dissenting opinion). It is, rather, "the
and discovery: the first person to find and report a particular fact has not created the fact; he or she has essence of copyright," ibid., and a constitutional requirement. The primary objective of copyright is not
merely discovered its existence. To borrow from Burrow-Giles, one who discovers a fact is not its to reward the labor of authors, but "to promote the Progress of Science and useful Arts." Art. I, § 8, cl. 8.
"maker" or "originator." 111 U.S., at 58. "The discoverer merely finds and records." Nimmer § 2.03[E]. Accord Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). To this end, copyright
Census-takers, for example, do not "create" the population figures that emerge from their efforts; in a assures authors the right to their original [p*350] expression, but encourages others to build freely upon
sense, they copy these figures from the world around them. Denicola, Copyright in Collections of Facts: the ideas and information conveyed by a work. Harper & Row, supra, at 556-557. This principle, known
A Theory for the Protection of Nonfiction Literary Works, 81 Colum. L. Rev. 516, 525 (1981) (hereinafter as the idea-expression or fact-expression dichotomy, applies to all works of authorship. As applied to a
Denicola). Census data therefore do not trigger copyright because these data are not "original" in the factual compilation, assuming the absence of original written expression, only the compiler's selection
constitutional sense. Nimmer [p*348] § 2.03[E]. The same is true of all facts -- scientific, historical, and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor
biographical, and news of the day. "They may not be copyrighted and are part of the public domain unfortunate. It is the means by which copyright advances the progress of science and art.
available to every person." Miller, supra, at 1369.
[20] This Court has long recognized that the fact-expression dichotomy limits severely the scope of [26] But some courts misunderstood the statute. See, e. g., Leon v. Pacific Telephone & Telegraph Co.,
protection in fact-based works. More than a century ago, the Court observed: "The very object of 91 F. 2d 484 (CA9 1937); Jeweler's Circular Publishing Co. v. Keystone Publishing Co., 281 F. 83 (CA2
publishing a book on science or the useful arts is to communicate to the world the useful knowledge 1922). These courts ignored § 3 and § 4, focusing their attention instead on § 5 of the Act. Section 5,
which it contains. But this object would be frustrated if the knowledge could not be used without however, was purely technical in nature: it provided that a person seeking to register a work should
incurring the guilt of piracy of the book." Baker v. Selden, 101 U.S. 99, 103 (1880). We reiterated this indicate on the application the type of work, and it listed 14 categories under which the work might fall.
point in Harper & Row: One of these categories was “books, including composite and cyclopedic works, directories, gazetteers,
and other compilations.” § 5(a). Section 5 did not purport to say that all compilations were automatically
"No author may copyright facts or ideas. The copyright is limited to those aspects of the work -- termed copyrightable. Indeed, it expressly disclaimed any such function, pointing out that “the subject-matter of
'expression' -- that display the stamp of the author's originality. copyright is defined in section four.” Nevertheless, the fact that factual compilations were mentioned
specifically in § 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.
“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 [27] Making matters worse, these courts developed a new theory to justify the protection of factual
omitted). 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:
[21] 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 “The right to copyright a book upon which one has expended labor in its preparation does not depend
arrangement of facts, but the copyright is limited to [p*351] the particular selection or arrangement. In upon whether the materials which he has collected consist or not of matters which are publici juris, or
no event may copyright extend to the facts themselves. whether such materials show literary skill or originality, either in thought or in language, or anything
more than industrious [p*353] 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
B material of which he is the author” (emphasis added).

[22] As we have explained, originality is a constitutionally mandated prerequisite for copyright [28] The “sweat of the brow” doctrine had numerous flaws, the most glaring being that it extended
protection. The Court's decisions announcing this rule predate the Copyright Act of 1909, but copyright protection in a compilation beyond selection and arrangement -- the compiler's original
ambiguous language in the 1909 Act caused some lower courts temporarily to lose sight of this contributions -- to the facts themselves. Under the doctrine, the only defense to infringement was
requirement. 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
[23] The 1909 Act embodied the originality requirement, but not as clearly as it might have. See Nimmer the same result from the same common sources of information.” Id., at 88-89 (internal quotations
§ 2.01. The subject matter of copyright was set out in § 3 and § 4 of the Act. Section 4 stated that omitted). “Sweat of the brow” courts thereby eschewed the most fundamental axiom of copyright law --
copyright was available to “all the writings of an author.” 35 Stat. 1076. By using the words “writings” that no one may copyright facts or ideas. See Miller v. Universal City Studios, Inc., 650 F. 2d, at 1372
and “author” -- the same words used in Article I, § 8 of the Constitution and defined by the Court in The (criticizing “sweat of the brow” courts because “ensuring that later writers obtain the facts independently
Trade-Mark Cases and Burrow-Giles -- the statute necessarily incorporated the originality requirement . . . is precisely the scope of protection given . . . copyrighted matter, and the law is clear that facts are
articulated in the Court's decisions. It did so implicitly, however, thereby leaving room for error. not entitled to such protection”).

[24] Section 3 was similarly ambiguous. It stated that the copyright in a work protected only “the [29] Decisions of this Court applying the 1909 Act make clear that the statute did not permit the “sweat
copyrightable component parts of the work.” It thus stated an important copyright principle, but failed to of the brow” approach. The best example is International News Service v. Associated Press, 248 U.S.
identify the specific characteristic -- originality -- that determined which component parts of a work were 215 (1918). In that decision, the Court stated unambiguously that the 1909 Act conferred copyright
copyrightable and which were not. protection only on those elements of a work that were original to the author. Associated Press had
conceded taking news reported by International News Service and publishing it in its own newspapers.
[25] Most courts construed the 1909 Act correctly, notwithstanding the less-than-perfect statutory Recognizing that § 5 of the Act specifically mentioned “periodicals, including newspapers,” § 5(b), the
Court acknowledged that news articles were copyrightable. Id., at 234. It flatly rejected, however, the
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 notion that the copyright in an article extended to [p*354] the factual information it contained: “The news
defined originality, nor even expressly required that a work be 'original' in order to command protection. element -- the information respecting current events contained in the literary production -- is not the
However, the courts uniformly inferred the requirement from the fact that copyright protection may only creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day.”
[n1]
Ibid.
be claimed by 'authors' . . . . It was reasoned that since an author is 'the . . . [p*352] creator, originator' it
follows that a work is not the product of an author unless the work is original.” Nimmer § 2.01 (footnotes
omitted) (citing cases). 1[30] 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 . . that the basic dichotomy between expression and idea remains unchanged.” H. R. Rep., at 57; S.
Copyright, 29 J. Copyright Soc. 560, 563 (1982). But “sweat of the brow” courts took a contrary view; Rep., at 54.
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 [34] Congress took another step to minimize confusion by deleting the specific mention of “directories . .
effort that the proscription against the copyright of ideas and facts . . . [is] designed to prevent.” . and other compilations” in § 5 of the 1909 Act. As mentioned, this section had led some courts to
Rosemont Enterprises, Inc. v. Random House, Inc., 366 F. 2d 303, 310 (CA2 1966), cert. denied, 385 conclude that directories were copyrightable per se and that every element of a directory was protected.
U.S. 1009 (1967). “Protection for the fruits of such research . . . may in certain circumstances be In its place, Congress enacted two new provisions. First, to make clear that compilations were not
available under a theory of unfair competition. But to accord copyright protection on this basis alone copyrightable per se, Congress provided a definition of the term “compilation.” Second, to make clear
distorts basic copyright principles in that it creates a monopoly in public domain materials without the that the copyright in a compilation did not extend to the facts themselves, Congress enacted 17 U.S.C.
necessary justification of protecting and encouraging the creation of 'writings' by 'authors.'” Nimmer § § 103.
3.04, p. 3-23 (footnote omitted).
[35] The definition of “compilation” is found in § 101 of the 1976 Act. It defines a “compilation” in the
1 copyright sense as “a work formed by the collection and assembly of preexisting materials or of data
that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes
C an original work of authorship” (emphasis added).

[31] “Sweat of the brow” decisions did not escape the attention of the Copyright Office. When Congress 1[36] The purpose of the statutory definition is to emphasize that collections of facts are not
decided to overhaul the copyright statute and asked the Copyright Office to study existing problems, copyrightable per se. It conveys this message through its tripartite structure, as emphasized above by
see Mills Music, Inc. v. Snyder, 469 U.S. 153, 159 (1985), the Copyright Office promptly recommended the italics. The statute identifies three distinct elements and requires each to be met for a work to qualify
that Congress clear up the confusion in the lower courts as to the basic standards of copyrightability. as a copyrightable compilation: (1) the collection and assembly of pre-existing material, facts, or data;
The Register of Copyrights explained in his first report to Congress that “originality” was a “basic (2) the selection, coordination, or arrangement of those materials; and (3) the creation, by virtue of the
requisite” of copyright under the 1909 Act, but that “the absence of any reference to [originality] in the particular selection, coordination, or arrangement, of an “original” work of authorship. “This tripartite
statute seems to have led to misconceptions as to what is copyrightable matter.” Report of the Register conjunctive structure is self-evident, and should be assumed to 'accurately express the legislative
of Copyrights on the General Revision of the U.S. Copyright Law, 87th Cong., 1st Sess., p. 9 (H. purpose.'” Patry 51, quoting Mills Music, 469 U.S., at 164.
Judiciary Comm. Print 1961). The Register suggested making the originality requirement explicit. Ibid.
1[37] At first glance, the first requirement does not seem to tell us much. It merely describes what one
[32] Congress took the Register's advice. In enacting the Copyright Act of 1976, Congress dropped the normally thinks of as a compilation -- a collection of pre-existing material, facts, or data. What makes it
reference to “all the writings of an author” and replaced it with the phrase “original works of authorship.” significant is that it is not the sole requirement. It is not enough for copyright purposes that an author
17 U.S.C. § 102(a). In making explicit the originality requirement, Congress announced that it was collects and assembles facts. To satisfy the statutory definition, the work must get over two additional
merely clarifying existing law: “The two fundamental criteria of copyright protection [are] originality and hurdles. In this way, the plain language indicates that not every collection of facts receives copyright
fixation in tangible form . . . . The phrase 'original works of authorship,' which is purposely left undefined, protection. Otherwise, there would be a period after “data.”
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 1[38] The third requirement is also illuminating. It emphasizes that a compilation, like any other work, is
H. R. Rep.); S. Rep. No. 94-473, p. 50 (1975) (emphasis added) (hereinafter S. Rep.). This sentiment copyrightable only if it satisfies the originality requirement (“an original work of authorship”). Although §
was echoed by the Copyright Office: “Our intention here is to maintain the established standards of 102 states plainly that the originality requirement applies to all works, the point was emphasized with
originality . . . .” Supplementary Report of the Register of Copyrights on the General Revision of U.S. regard to compilations to ensure that courts would not repeat the mistake of the “sweat of the brow”
Copyright Law, 89th Cong., 1st Sess., Part 6, p. 3 (H. Judiciary Comm. Print 1965) (emphasis added). 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
[33] To ensure that the mistakes of the “sweat of the brow” courts would not be repeated, Congress matter stated in section 102 apply with full force to works . . . containing preexisting material.” H. R.
took additional measures. For example, § 3 of the 1909 Act had stated that copyright protected only the Rep., at 57; S. Rep., at 55.
“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 1[39] The key to the statutory definition is the second requirement. It instructs courts that, in determining
deleted this section and replaced it with § 102(b), which identifies specifically those elements of a work whether a fact-based work is an original work of authorship, they should focus on the manner in which
for which copyright is not available: “In no case does copyright protection for an original work of the collected facts have been selected, coordinated, and arranged. This is a straightforward application
authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or of the originality requirement. Facts are never original, so the compilation author can claim originality, if
discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such at all, only in the way the facts are presented. To that end, the statute dictates that the principal focus
work.” § 102(b) is universally understood to prohibit any copyright in facts. Harper & Row, supra, at 547, should be on whether the selection, coordination, and arrangement are sufficiently original to merit
556. Accord Nimmer § 2.03[E] (equating facts with “discoveries”). As with § 102(a), Congress protection.
emphasized that § 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 .
1 facts it contains, § 103(b); and that a compilation is copyrightable only to the extent that it features an
original selection, coordination, or arrangement, § 101.
[40] 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 1[45] The 1976 revisions have proven largely successful in steering courts in the right direction. A good
to render the work as a whole original. This implies that some “ways” will trigger copyright, but that example is Miller v. Universal City Studios, Inc., 650 F. 2d, at 1369-1370: “A copyright in a directory . . .
others will not. See Patry 57, and n. 76. Otherwise, the phrase “in such a way” is meaningless and is properly viewed as resting on the originality of the selection and arrangement of the factual material,
Congress should have defined “compilation” simply as “a work formed by the collection and assembly of rather than on the industriousness of the efforts to develop the information. Copyright protection does
preexisting materials or data that are selected, coordinated, or arranged.” That Congress did not do so not extend to the facts themselves, and the mere use of information contained in a directory without a
is dispositive. In accordance with “the established principle that a court should give effect, if possible, to substantial copying of the format does not constitute infringement” (citation omitted). Additionally, the
every clause and word of a statute,” Moskal v. United States, 498 U.S. 103, 109-110 (1990) (internal Second Circuit, which almost 70 years ago issued the classic formulation of the “sweat of the brow”
quotations omitted), we conclude that the statute envisions that there will be some fact-based works in doctrine in Jeweler's Circular Publishing Co., has now fully repudiated the reasoning of that decision.
which the selection, coordination, and arrangement are not sufficiently original to trigger copyright See, e. g., Financial Information, Inc. v. Moody's Investors Service, Inc., 808 F. 2d 204, 207 (CA2
protection. 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
[41] As discussed earlier, however, the originality requirement is not particularly stringent. A compiler F. 2d 972, 979 (CA2 1980). Even those scholars who believe that “industrious collection” should be
may settle upon a selection or arrangement that others have used; novelty is not required. Originality rewarded seem to recognize that this is beyond the scope of existing copyright law. See Denicola 516
requires only that the author make the selection or arrangement independently (i. e., without copying (“the very vocabulary of copyright [p*361] is ill suited to analyzing property rights in works of nonfiction”);
that selection or arrangement from another work), and that it display some minimal level of creativity. id., at 520-521, 525; Ginsburg 1867, 1870.
Presumably, [p*359] 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 III
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 [46] There is no doubt that Feist took from the white pages of Rural's directory a substantial amount of
copyright. Nimmer § 2.01[B]. 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
[42] Even if a work qualifies as a copyrightable compilation, it receives only limited protection. This is elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of
the point of § 103 of the Act. Section 103 explains that “the subject matter of copyright . . . includes the work that are original. See Harper & Row, 471 U.S., at 548. The first element is not at issue here;
compilations,” § 103(a), but that copyright protects only the author's original contributions -- not the facts Feist appears to concede that Rural's directory, considered as a whole, is subject to a valid copyright
or information conveyed: 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 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 [47] The question is whether Rural has proved the second element. In other words, did Feist, by taking
right in the preexisting material.” § 103(b). 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
[43] As § 103 makes clear, copyright is not a tool by which a compilation author may keep others from been the first to discover and report the names, towns, and telephone numbers of its subscribers, but
using the facts or data he or she has collected. “The most important point here is one that is commonly this data does not “'owe its origin'” to Rural. Burrow-Giles, 111 U.S., at 58. Rather, these bits of
misunderstood today: copyright . . . has no effect one way or the other on the copyright or public domain information are uncopyrightable facts; they existed before Rural reported them and would have
status of the preexisting material.” H. R. Rep., at 57; S. Rep., at 55. The 1909 Act did not require, as continued to exist if Rural had never published a telephone directory. The originality requirement “rules
“sweat of the brow” courts mistakenly assumed, that each subsequent compiler must start from scratch out protecting . . . names, addresses, and telephone numbers of which the plaintiff by no stretch of the
and is precluded from relying on research undertaken by another. See, e. g., Jeweler's Circular imagination could be called the author.” Patterson & Joyce 776.
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, [48] Rural essentially concedes the point by referring to the names, towns, and telephone numbers as
coordination, and arrangement of facts. “preexisting material.” Brief for Respondent 17. Section 103(b) states explicitly [p*362] that the copyright
in a compilation does not extend to “the preexisting material employed in the work.”
1[44] In summary, the 1976 revisions to the Copyright Act leave no doubt that originality, not “sweat of
the brow,” is the [p*360] touchstone of copyright protection in directories and other fact-based works. [49] The question that remains is whether Rural selected, coordinated, or arranged these
Nor is there any doubt that the same was true under the 1909 Act. The 1976 revisions were a direct uncopyrightable facts in an original way. As mentioned, originality is not a stringent standard; it does not
response to the Copyright Office's concern that many lower courts had misconstrued this basic require that facts be presented in an innovative or surprising way. It is equally true, however, that the
principle, and Congress emphasized repeatedly that the purpose of the revisions was to clarify, not selection and arrangement of facts cannot be so mechanical or routine as to require no creativity
change, existing law. The revisions explain with painstaking clarity that copyright requires originality, § whatsoever. The standard of originality is low, but it does exist. See Patterson & Joyce 760, n. 144
102(a); that facts are never original, § 102(b); that the copyright in a compilation does not extend to the (“While this requirement is sometimes characterized as modest, or a low threshold, it is not without
effect”) (internal quotations omitted; citations omitted). As this Court has explained, the Constitution [56] Reversed.
mandates some minimal degree of creativity, see The Trade-Mark Cases, 100 U.S., at 94; and an JUSTICE BLACKMUN concurs in the judgment.
author who claims infringement must prove “the existence of . . . intellectual production, of thought, and
conception.” Burrow-Giles, supra, at 59-60.
* Briefs of amici curiae urging reversal were filed for the Association of North American Directory
[50] The selection, coordination, and arrangement of Rural's white pages do not satisfy the minimum Publishers et al. by Theodore Case Whitehouse; for the International Association of Cross Reference
constitutional standards for copyright protection. As mentioned at the outset, Rural's white pages are Directory Publishers by Richard D. Grauer and Kathleen McCree Lewis; and for the Third-Class Mail
entirely typical. Persons desiring telephone service in Rural's service area fill out an application and Association by Ian D. Volner.
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 Briefs of amici curiae urging affirmance were filed for Ameritech et al. by Michael K. Kellogg, Charles
white pages directory, devoid of even the slightest trace of creativity. Rothfeld, Douglas J. Kirk, Thomas P. Hester, and Harlan Sherwat for Association of American
Publishers, Inc., by Robert G. Sugarman and R. Bruce Rich for GTE Corp. by Kirk K. Van Tine, Richard
[51] Rural's selection of listings could not be more obvious: it publishes the most basic information -- M. Cahill, and Edward R. Sublett; for the National Telephone Cooperative Association by L. Marie
name, town, and telephone number -- about each person who applies to it for telephone service. This is Guillory and David Cosson for the United States Telephone Association by Richard J. Rappaport and
“selection” of a sort, but it lacks the modicum of creativity necessary to transform mere selection into Keith P. Schoeneberger and for West Publishing Co. by Vance K. Opperman and James E. Schatz.
copyrightable expression. Rural expended sufficient effort [p*363] to make the white pages directory
useful, but insufficient creativity to make it original. Briefs of amici curiae were filed for Bellsouth Corp. by Anthony B. Askew, Robert E. Richards, Walter H.
Alford, and Vincent L. Sgrosso for Direct Marketing Association, Inc., by Robert L. Sherman for Haines
[52] We note in passing that the selection featured in Rural's white pages may also fail the originality and Co., Inc., by Jeremiah D. McAuliffe, Bernard A. Barken, and Eugene Gressman; and for the
requirement for another reason. Feist points out that Rural did not truly “select” to publish the names Information Industry Association et al. by Steven J. Metalitz and Angela Burnett.
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 1. The Court ultimately rendered judgment for International News Service on noncopyright grounds that
plausibly conclude that this selection was dictated by state law, not by Rural. are not relevant here. See 248 U.S., at 235, 241-242.

[53] Nor can Rural claim originality in its coordination and arrangement of facts. The white pages do Joaquin v. Drilon (Case Digest)
nothing more than list Rural's subscribers in alphabetical order. This arrangement may, technically Intellectual Property – Law on Copyright – Game Show – Ideas and Concepts Not Covered by
speaking, owe its origin to Rural; no one disputes that Rural undertook the task of alphabetizing the Copyright
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 BJ Productions Inc. (BJPI) was the holder of copyright over the show Rhoda and Me. It holds rights over
Curiae 10 (alphabetical arrangement “is universally observed in directories published by local exchange the show’s format and style of presentation. In 1991, BJPI’s president Francisco Joaquin saw on TV
telephone companies”). It is not only unoriginal, it is practically inevitable. This time-honored tradition RPN 9’s show It’s a Date, which is basically the same as Rhoda and Me. He eventually sued Gabriel
does not possess the minimal creative spark required by the Copyright Act and the Constitution. Zosa, the manager of the show It’s a Date. Zosa later sought a review of the prosecutor’s resolution
before the Secretary of Justice (Drilon). Drilon reversed the findings of the fiscal and directed him to
dismiss the case against Zosa.
[54] 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 ISSUE: Whether or not the decision of Drilon is valid.
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. § 101 HELD: Yes. The essence of copyright infringement is the copying, in whole or in part, of copyrightable
does not afford protection [p*364] from copying to a collection of facts that are selected, coordinated, materials as defined and enumerated in Section 2 of PD. No. 49 (Copyright Law). Apart from the
and arranged in a way that utterly lacks originality. Given that some works must fail, we cannot imagine manner in which it is actually expressed, however, the idea of a dating game show is a non-
a more likely candidate. Indeed, were we to hold that Rural's white pages pass muster, it is hard to copyrightable material. Ideas, concepts, formats, or schemes in their abstract form clearly do not fall
believe that any collection of facts could fail. within the class of works or materials susceptible of copyright registration as provided in PD. No.
49. What is covered by BJPI’s copyright is the specific episodes of the show Rhoda and Me.
[55] 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 Further, BJPI should have presented the master videotape of the show in order to show the linkage
its directory, but rather as making clear that copyright rewards originality, not effort. As this Court noted between the copyright show (Rhoda and Me) and the infringing show (It’s a Date). This is based on the
th
more than a century ago, “'great praise may be due to the plaintiffs for their industry and enterprise in ruling in 20 Century Fox vs CA (though this has been qualified by Columbia Pictures vs CA, this is still
publishing this paper, yet the law does not contemplate their being rewarded in this way.'” Baker v. good law). Though BJPI did provide a lot of written evidence and description to show the linkage
Selden, 101 U.S., at 105. The judgment of the Court of Appeals is between the shows, the same were not enough. A television show includes more than mere words can
describe because it involves a whole spectrum of visuals and effects, video and audio, such that no Fish & Neave, New York City (Donald E. Degling, Susan Progoff, Eric M. Lee, New York City, of
similarity or dissimilarity may be found by merely describing the general copyright/format of both dating counsel), for defendant-appellee.
game shows. Before OAKES and WINTER, Circuit Judges, and ZAMPANO, District Judge.

Filscap v. Tan (issues) OAKES, Circuit Judge:

FILSCAP v. Tan In passing the Copyright Act of 1976 Congress attempted to distinguish between protectable "works of
[L-36402, Mar. 16, 1987]
applied art" and "industrial designs not subject to copyright protection." See H.R.Rep. No. 1476, 94th
Cong., 2d Sess. 54, reprinted in 1976 U.S.Code Cong. & Admin.News 5659, 5667 (hereinafter
The principal issues in this case are whether or not the playing and singing of musical compositions
H.R.Rep. No. 1476). The courts, however, have had difficulty framing tests by which the fine line
which have been copyrighted under the provisions of the Copyright Law inside the establishment of the
defendant-appellee constitute a public performance for profit within the meaning and contemplation of establishing what is and what is not copyrightable can be drawn. Once again we are called upon to
the Copyright Law of the Philippines; and assuming that there were indeed public performances for draw such a line, this time in a case involving the "RIBBON Rack," a bicycle rack made of bent tubing
profit, whether or not appellee can be held liable therefor. that is said to have originated from a wire sculpture. (A photograph of the rack is contained in the
appendix to this opinion.) We are also called upon to determine whether there is any trademark
In the case at bar, it is admitted that the patrons of the restaurant in question pay only for the food and protection available to the manufacturer of the bicycle rack, appellant Brandir International, Inc. The
drinks and apparently not for listening to the music. As found by the trial court, the music provided is for Register of Copyright, named as a third-party defendant under the statute, 17 U.S.C. § 411, but electing
the purpose of entertaining and amusing the customers in order to make the establishment more not to appear, denied copyrightability. In the subsequent suit brought in the United States District Court
attractive and desirable. It will be noted that for the playing and singing the musical compositions for the Southern District of New York, Charles S. Haight, Jr., Judge, the district court granted summary
involved, the combo was paid as independent contractors by the appellant. It is therefore obvious that
judgment on both the copyright and trademark claims to defendant Cascade Pacific Lumber Co., d/b/a
the expenses entailed thereby are added to the overhead of the restaurant which are either eventually
charged in the price of the food and drinks or to the overall total of additional income produced by the Columbia Cascade Co., manufacturer of a similar bicycle rack. We affirm as to the copyright claim, but
bigger volume of business which the entertainment was programmed to attract. Consequently, it is reverse and remand as to the trademark claim.
beyond question that the playing and singing of the combo in defendant-appellee's restaurant
constituted performance for profit contemplated by the Copyright Law. Against the history of copyright protection well set out in the majority opinion in Carol Barnhart Inc. v.
Economy Cover Corp., 773 F.2d 411, 415-18 (2d Cir.1985), and in Denicola, Applied Art and Industrial
Nevertheless, appellee cannot be said to have infringed upon the Copyright Law. Appellee's allegation Design: A Suggested Approach to Copyright in Useful Articles, 67 Minn.L.Rev. 707, 709-17 (1983),
that the composers of the contested musical compositions waived their right in favor of the general
Congress adopted the Copyright Act of 1976. The "works of art" classification of the Copyright Act of
public when they allowed their intellectual creations to become property of the public domain before
applying for the corresponding copyrights for the same is correct. 1909 was omitted and replaced by reference to "pictorial, graphic, and sculptural works," 17 U.S.C. §
102(a)(5). According to the House Report, the new category was intended to supply "as clear a line as
Indeed, if the general public has made use of the object sought to be copyrighted for thirty (30) days possible between copyrightable works of applied art and uncopyrighted works of industrial design."
prior to the copyright application the law deems the object to have been donated to the public domain H.R.Rep. No. 1476, at 55, U.S.Code Cong. & Admin.News 1976, p. 5668. The statutory definition of
and the same can no longer be copyrighted. Under the circumstances, it is clear that the musical "pictorial, graphic, and sculptural works" states that "the design of a useful article, as defined in this
compositions in question had long become public property, and are therefore beyond the protection of section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that,
the Copyright Law. such design incorporates pictorial, graphic, or sculptural features that can be identified separately from,
and are capable of existing independently of, the utilitarian aspects of the article." 17 U.S.C. § 101.1
BRANDIR INTERN., INC. v. CASCADE PACIFIC LUMBER CO.NO. 828, DOCKET 86-6260. The legislative history added gloss on the criteria of separate identity and independent existence in
saying:
834 F.2d 1142 (1987)
BRANDIR INTERNATIONAL, INC., Plaintiff-Appellant,
v. On the other hand, although the shape of an industrial product may be aesthetically satisfying and
CASCADE PACIFIC LUMBER CO., d/b/a Columbia Cascade Co., Defendant-Appellee, and valuable, the Committee's intention is not to offer it copyright protection under the bill. Unless the shape
David L. Ladd, Register of Copyrights, United States Copyright Office, Third-Party Defendant. of an automobile, airplane, ladies' dress, food processor, television set, or any other industrial product
United States Court of Appeals, Second Circuit. contains some element that, physically or conceptually, can be identified as separable from the
Argued March 2, 1987. utilitarian aspects of that article, the design would not be copyrighted under the bill.
Decided December 2, 1987.
Blum Kaplan, New York City (Lawrence Rosenthal, Laura E. Goldbard, Anita K. Yeung, New York City, H.R.Rep. No. 1476, at 55, U.S.Code Cong. & Admin.News 1976, p. 5668.
of counsel), for plaintiff-appellant.
As courts and commentators have come to realize, however, the line Congress attempted to draw separate from the concept evoked by its utilitarian function." Id. at 422. This approach has received
between copyrightable art and noncopyrightable design "was neither clear nor new." Denicola, supra, favorable endorsement by at least one commentator, W. Patry, Latman's The Copyright Law 43-45 (6th
67 Minn.L.Rev. at 720. One aspect of the distinction that has drawn considerable attention is the ed. 1986), who calls Judge Newman's test the "temporal displacement" test. It is to be distinguished
reference in the House Report to "physically or conceptually" (emphasis added) separable elements. from other possible ways in which conceptual separability can be tested, including whether the primary
The District of Columbia Circuit in Esquire, Inc. v. Ringer, 591 F.2d 796, 803-04 (D.C.Cir.1978) (holding use is as a utilitarian article as opposed to an artistic work, whether the aesthetic aspects of the work
outdoor lighting fixtures ineligible for copyright), cert. denied, 440 U.S. 908, 99 S.Ct. 1217, 59 L.Ed.2d can be said to be "primary," and whether the article is marketable as art, none of which is very
456 (1979), called this an "isolated reference" and gave it no significance. Professor Nimmer, however, satisfactory. But Judge Newman's test was rejected outright by the majority as "a standard so ethereal
seemed to favor the observations of Judge Harold Leventhal in his concurrence in Esquire, who stated as to amount to a `nontest' that would be extremely difficult, if not impossible, to administer or apply."
that "the overall legislative policy ... sustains the Copyright Office in its effort to distinguish between the 773 F.2d at 419 n. 5.
instances where the aesthetic element is conceptually severable and the instances where the aesthetic
element is inextricably interwoven with the utilitarian aspect of the article." 591 F.2d at 807; see 1 Perhaps the differences between the majority and the dissent in Carol Barnhart might have been
Nimmer on Copyright § 2.08[B] at 2-93 to 2-96.2 (1986). But see Gerber, Book Review, 26 resolved had they had before them the Denicola article on Applied Art and Industrial Design: A
U.C.L.A.L.Rev. 925, 938-43 (1979) (criticizing Professor Nimmer's view on conceptual separability). Suggested Approach to Copyright in Useful Articles, supra. There, Professor Denicola points out that
Looking to the section 101 definition of works of artistic craftsmanship requiring that artistic features be although the Copyright Act of 1976 was an effort "`to draw as clear a line as possible,'" in truth "there is
"capable of existing independently of the utilitarian aspects," Professor Nimmer queries whether that no line, but merely a spectrum of forms and shapes responsive in varying degrees to utilitarian
requires physical as distinguished from conceptual separability, but answers his query by saying "[t]here concerns." 67 Minn.L.Rev. at 741. Denicola argues that "the statutory directive requires a distinction
is reason to conclude that it does not." See 1 Nimmer on Copyright § 2.08[B] at 2-96.1. In any event, in between works of industrial design and works whose origins lie outside the design process, despite the
Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 993 (2d Cir.1980), this court accepted the utilitarian environment in which they appear." He views the statutory limitation of copyrightability as "an
idea that copyrightability can adhere in the "conceptual" separation of an artistic element. Indeed, the attempt to identify elements whose form and appearance reflect the unconstrained perspective of the
court went on to find such conceptual separation in reference to ornate belt buckles that could be and artist," such features not being the product of industrial design. Id. at 742. "Copyrightability, therefore,
were worn separately as jewelry. Kieselstein-Cord was followed in Norris Industries, Inc. v. International should turn on the relationship between the proffered work and the process of industrial design." Id. at
Telephone & Telegraph Corp., 696 F.2d 918, 923-24 (11th Cir.), cert. denied, 464 U.S. 818, 104 S.Ct. 741. He suggests that "the dominant characteristic of industrial design is the influence of nonaesthetic,
78, 78 L.Ed.2d 89 (1983), although there the court upheld the Register's refusal to register automobile utilitarian concerns" and hence concludes that copyrightability "ultimately should depend on the extent
wire wheel covers, finding no "conceptually separable" work of art. See also Transworld Mfg. Corp. v. Al to which the work reflects artistic expression uninhibited by functional considerations."2 Id. To state the
Nyman & Sons, Inc., 95 F.R.D. 95 (D.Del.1982) (finding conceptual separability sufficient to support Denicola test in the language of conceptual separability, if design elements reflect a merger of aesthetic
copyright in denying summary judgment on copyrightability of eyeglass display cases). and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable
from the utilitarian elements. Conversely, where design elements can be identified as reflecting the
In Carol Barnhart Inc. v. Economy Cover Corp., 773 F.2d 411 (2d Cir.1985), a divided panel of this designer's artistic judgment exercised independently of functional influences, conceptual separability
circuit affirmed a district court grant of summary judgment of noncopyrightability of four life-sized, exists.
anatomically correct human torso forms. Carol Barnhart distinguished Kieselstein-Cord, but it surely did
not overrule it. The distinction made was that the ornamented surfaces of the Kieselstein-Cord belt We believe that Professor Denicola's approach provides the best test for conceptual separability and,
buckles "were not in any respect required by their utilitarian functions," but the features claimed to be accordingly, adopt it here for several reasons. First, the approach is consistent with the holdings of our
aesthetic or artistic in the Carol Barnhart forms were "inextricably intertwined with the utilitarian feature, previous cases. In Kieselstein-Cord, for example, the artistic aspects of the belt buckles reflected purely
the display of clothes." 773 F.2d at 419. But cf. Animal Fair, Inc. v. Amfesco Indus., Inc., 620 F.Supp. aesthetic choices, independent of the buckles' function, while in Carol Barnhart the distinctive features
175, 186-88 (D.Minn.1985) (holding bear-paw design conceptually separable from the utilitarian of the torsos — the accurate anatomical design and the sculpted shirts and collars — showed clearly
features of a slipper), aff'd mem., 794 F.2d 678 (8th Cir.1986). As Judge Newman's dissent made clear, the influence of functional concerns. Though the torsos bore artistic features, it was evident that the
the Carol Barnhart majority did not dispute "that `conceptual separability' is distinct from `physical designer incorporated those features to further the usefulness of the torsos as mannequins. Second,
separability' and, when present, entitles the creator of a useful article to a copyright on its design." 773 the test's emphasis on the influence of utilitarian concerns in the design process may help, as Denicola
F.2d at 420. notes, to "alleviate the de facto discrimination against nonrepresentational art that has regrettably
accompanied much of the current analysis." Id. at 745.3 Finally, and perhaps most importantly, we think
"Conceptual separability" is thus alive and well, at least in this circuit. The problem, however, is Denicola's test will not be too difficult to administer in practice. The work itself will continue to give "mute
determining exactly what it is and how it is to be applied. Judge Newman's illuminating discussion in testimony" of its origins. In addition, the parties will be required to present evidence relating to the
dissent in Carol Barnhart, see 773 F.2d at 419-24, proposed a test that aesthetic features are design process and the nature of the work, with the trier of fact making the determination whether the
conceptually separable if "the article ... stimulate[s] in the mind of the beholder a concept that is aesthetic design elements are significantly influenced by functional considerations.
Turning now to the facts of this case, we note first that Brandir contends, and its chief owner David Applying Professor Denicola's test to the RIBBON Rack, we find that the rack is not copyrightable. It
Levine testified, that the original design of the RIBBON Rack stemmed from wire sculptures that Levine seems clear that the form of the rack is influenced in significant measure by utilitarian concerns and
had created, each formed from one continuous undulating piece of wire. These sculptures were, he thus any aesthetic elements cannot be said to be conceptually separable from the utilitarian elements.
said, created and displayed in his home as a means of personal expression, but apparently were never This is true even though the sculptures which inspired the RIBBON Rack may well have been — the
sold or displayed elsewhere. He also created a wire sculpture in the shape of a bicycle and states that issue of originality aside — copyrightable.
he did not give any thought to the utilitarian application of any of his sculptures until he accidentally
juxtaposed the bicycle sculpture with one of the self-standing wire sculptures. It was not until November Brandir argues correctly that a copyrighted work of art does not lose its protected status merely
1978 that Levine seriously began pursuing the utilitarian application of his sculptures, when a friend, G. because it subsequently is put to a functional use. The Supreme Court so held in Mazer v. Stein, 347
Duff Bailey, a bicycle buff and author of numerous articles about urban cycling, was at Levine's home U.S. 201, 74 S.Ct. 460, 98 L.Ed. 630 (1954), and Congress specifically intended to accept and codify
and informed him that the sculptures would make excellent bicycle racks, permitting bicycles to be Mazer in section 101 of the Copyright Act of 1976. See H.R.Rep. No. 1476 at 54-55. The district court
parked under the overloops as well as on top of the underloops. Following this meeting, Levine met thus erred in ruling that, whatever the RIBBON Rack's origins, Brandir's commercialization of the rack
several times with Bailey and others, completing the designs for the RIBBON Rack by the use of a disposed of the issue of its copyrightability.
vacuum cleaner hose, and submitting his drawings to a fabricator complete with dimensions. The
Brandir RIBBON Rack began being nationally advertised and promoted for sale in September 1979. Had Brandir merely adopted one of the existing sculptures as a bicycle rack, neither the application to a
utilitarian end nor commercialization of that use would have caused the object to forfeit its copyrighted
In November 1982 Levine discovered that another company, Cascade Pacific Lumber Co., was selling status. Comparison of the RIBBON Rack with the earlier sculptures, however, reveals that while the
a similar product. Thereafter, beginning in December 1982, a copyright notice was placed on all rack may have been derived in part from one of more "works of art," it is in its final form essentially a
RIBBON Racks before shipment and on December 10, 1982, five copyright applications for registration product of industrial design. In creating the RIBBON Rack, the designer has clearly adapted the original
were submitted to the Copyright Office. The Copyright Office refused registration by letter, stating that aesthetic elements to accommodate and further a utilitarian purpose. These altered design features of
the RIBBON Rack did not contain any element that was "capable of independent existence as a the RIBBON Rack, including the spacesaving, open design achieved by widening the upper loops to
copyrightable pictorial, graphic or sculptural work apart from the shape of the useful article." An appeal permit parking under as well as over the rack's curves, the straightened vertical elements that allow in-
to the Copyright Office was denied by letter dated March 23, 1983, refusing registration on the above and above-ground installation of the rack, the ability to fit all types of bicycles and mopeds, and the
ground and alternatively on the ground that the design lacked originality, consisting of "nothing more heavy-gauged tubular construction of rustproof galvanized steel, are all features that combine to make
than a familiar public domain symbol." In February 1984, after the denial of the second appeal of the for a safe, secure, and maintenance-free system of parking bicycles and mopeds. Its undulating shape
examiner's decision, Brandir sent letters to customers enclosing copyright notices to be placed on racks is said in Progressive Architecture, January 1982, to permit double the storage of conventional bicycle
sold prior to December 1982. racks. Moreover, the rack is manufactured from 2 3/8-inch standard steam pipe that is bent into form,
the six-inch radius of the bends evidently resulting from bending the pipe according to a standard
Between September 1979 and August 1982 Brandir spent some $38,500 for advertising and promoting formula that yields bends having a radius equal to three times the nominal internal diameter of the pipe.
the RIBBON Rack, including some 85,000 pieces of promotional literature to architects and landscape
architects. Additionally, since October 1982 Brandir has spent some $66,000, including full-, half-, and Brandir argues that its RIBBON Rack can and should be characterized as a sculptural work of art within
quarter-page advertisements in architectural magazines such as Landscape Architecture, Progressive the minimalist art movement. Minimalist sculpture's most outstanding feature is said to be its clarity and
Architecture, and Architectural Record, indeed winning an advertising award from Progressive simplicity, in that it often takes the form of geometric shapes, lines, and forms that are pure and free of
Architecture in January 1983. The RIBBON Rack has been featured in Popular Science, Art and ornamentation and void of association. As Brandir's expert put it, "The meaning is to be found in, within,
Architecture, and Design 384 magazines, and it won an Industrial Designers Society of America design around and outside the work of art, allowing the artistic sensation to be experienced as well as
award in the spring of 1980. In the spring of 1984 the RIBBON Rack was selected from 200 designs to intellectualized." People who use Foley Square in New York City see in the form of minimalist art the
be included among 77 of the designs exhibited at the Katonah Gallery in an exhibition entitled "The "Tilted Arc," which is on the plaza at 26 Federal Plaza. Numerous museums have had exhibitions of
Product of Design: An Exploration of the Industrial Design Process," an exhibition that was written up in such art, and the school of minimalist art has many admirers.
the New York Times.
It is unnecessary to determine whether to the art world the RIBBON Rack properly would be considered
Sales of the RIBBON Rack from September 1979 through January 1985 were in excess of $1,367,000. an example of minimalist sculpture. The result under the copyright statute is not changed. Using the test
Prior to the time Cascade Pacific began offering for sale its bicycle rack in August 1982, Brandir's sales we have adopted, it is not enough that, to paraphrase Judge Newman, the rack may stimulate in the
were $436,000. The price of the RIBBON Rack ranges from $395 up to $2,025 for a stainless steel mind of the reasonable observer a concept separate from the bicycle rack concept. While the RIBBON
model and generally depends on the size of the rack, one of the most popular being the RB-7, selling Rack may be worthy of admiration for its aesthetic qualities alone, it remains nonetheless the product of
for $485. industrial design. Form and function are inextricably intertwined in the rack, its ultimate design being as
much the result of utilitarian pressures as aesthetic choices. Indeed, the visually pleasing proportions not one-piece undulating bicycle racks specifically. See id. at 330-32; see also In re DC Comics, Inc.,
and symmetricality of the rack represent design changes made in response to functional concerns. 689 F.2d 1042, 1045 (C.C.P.A.1982) (dolls generally and not Superman dolls are the class by which
Judging from the awards the rack has received, it would seem in fact that Brandir has achieved with the functionality is determined). We reverse and remand as to the trademark and unfair competition claims.
RIBBON Rack the highest goal of modern industrial design, that is, the harmonious fusion of function
and aesthetics. Thus there remains no artistic element of the RIBBON Rack that can be identified as Judgment affirmed as to the copyright claim; reversed and remanded as to the trademark and unfair
separate and "capable of existing independently, of, the utilitarian aspects of the article." Accordingly, competition claims.
we must affirm on the copyright claim.
APPENDIX
As to whether the configuration of Brandir's bicycle rack can be protected under either section 43(a) of
the Lanham Act, 15 U.S.C. § 1125(a), or New York State unfair competition law, we are reminded that WINTER, Circuit Judge, concurring in part and dissenting in part:
the design of a product itself may function as its packaging or protectable trade dress. See LeSportsac,
Inc. v. K mart Corp., 754 F.2d 71, 75 (2d Cir.1985). The district court dismissed Brandir's claims, saying
Although I concur in the reversal of the district court's grant of summary judgment on the trademark and
that its analysis of the copyright issue was sufficient to dispose of the Lanham Act and common law unfair competition claims, I respectfully dissent from the majority's discussion and disposition of the
claims. The court stated "the design feature of the Ribbon Racks is clearly dictated by the function to be copyright claim.
performed, namely, holding up bicycles. If the steam pipes were not bent into the design, but instead
remained flat, the bicycles would not stand up, they would fall down." But as Judge Newman noted in
My colleagues, applying an adaptation of Professor Denicola's test, hold that the aesthetic elements of
his dissent in Carol Barnhart, 773 F.2d at 420 n. 1, the principle of conceptual separability of functional
the design of a useful article are not conceptually separable from its utilitarian aspects if "[f]orm and
design elements in copyright law is different from the somewhat similar principle of functionality as
function are inextricably intertwined" in the article, and "its ultimate design [is] as much the result of
developed in trademark law. For trademark purposes, he pointed out, a design feature "has been said
utilitarian pressures as aesthetic choices." Applying that test to the instant matter, they observe that the
to be functional if it is `essential to the use or purpose of the article' or `affects the cost or quality of the
dispositive fact is that "in creating the Ribbon Rack, [Levine] has clearly adapted the original aesthetic
article.'" Id. (quoting Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 850 n. 10, 102
elements to accommodate and further a utilitarian purpose." (emphasis added). The grounds of my
S.Ct. 2182, 2187 n. 10, 72 L.Ed.2d 606 (1982)); see LeSportsac, Inc. v. K mart Corp., 754 F.2d at 75-76
disagreement are that: (1) my colleagues' adaptation of Professor Denicola's test diminishes the
(trade dress of a product is eligible for protection if it has acquired a secondary meaning and is
statutory concept of "conceptual separability" to the vanishing point; and (2) their focus on the process
nonfunctional).4
or sequence followed by the particular designer makes copyright protection depend upon largely
fortuitous circumstances concerning the creation of the design in issue.
Here, the district court limited its inquiry to determining whether portions of the RIBBON Rack
performed the function of a bicycle rack. But the fact that a design feature performs a function does not
With regard to "conceptual separability," my colleagues deserve considerable credit for their efforts to
make it essential to the performance of that function; it is instead the absence of alternative
reconcile Carol Barnhart Inc. v. Economy Cover Corp., 773 F.2d 411 (2d Cir.1985) with Kieselstein-
constructions performing the same function that renders the feature functional. Thus, the true test of
Cord v. Accessories by Pearl, Inc., 632 F.2d 989 (2d Cir.1980). In my view, these cases are not
functionality is not whether the feature in question performs a function, but whether the feature "is
reconcilable. Carol Barnhart paid only lip service to the fact that the "conceptual separability" of an
dictated by the functions to be performed," Warner Bros. Inc. v. Gay Toys, Inc., 724 F.2d 327, 331 (2d
article's aesthetic utilitarian aspects may render the design of a "useful article" a copyrightable
Cir.1983) (quoted in LeSportsac, Inc. v. K mart Corp., 754 F.2d at 76), as evidenced by available
"sculptural work." 17 U.S.C. § 101 (1982). Actually, the Carol Barnhart majority applied a test of
alternative constructions. See Metro Kane Imports, Ltd. v. Rowoco, Inc., 618 F.Supp. 273, 275-76
physical separability. They thus stated:
(S.D.N.Y.1985), aff'd mem., 800 F.2d 1128 (2d Cir.1986) (finding high-tech design of orange juice
squeezer not dictated by function to be performed as there was no evidence that design permitted juicer
What distinguishes [the Kieselstein Cord] buckles from the Barnhart forms is that the ornamented
to be manufactured at lower price or with altered performance). There are numerous alternative bicycle
surfaces of the buckles were not in any respect required by their utilitarian functions; the artistic and
rack constructions. The nature, price, and utility of these constructions are material issues of fact not aesthetic features could thus be conceived of as having been added to, or superimposed upon, an
suitable for determination by summary judgment.5 For example, while it is true that the materials used otherwise utilitarian article. The unique artistic design was wholly unnecessary to performance of the
by Brandir are standard-size pipes, we have no way of knowing whether the particular size and weight utilitarian function. In the case of the Barnhart forms, on the other hand, the features claimed to be
of the pipes used is the best, the most economical, or the only available size and weight pipe in the aesthetic or artistic, e.g., the life-size configuration of the breasts and the width of the shoulders are
marketplace. We would rather think the opposite might be the case. So, too, with the dimension of the inextricably intertwined with the utilitarian feature, the display of clothes.
bends being dictated by a standard formula corresponding to the pipe size; it could be that there are
many standard radii and that the particular radius of Brandir's RIBBON Rack actually required new 773 F.2d at 419 (emphasis added). In contrast, Kieselstein-Cord focused on the fact that the belt
tooling. This issue of functionality on remand should be viewed in terms of bicycle racks generally and buckles at issue could be perceived as objects other than belt buckles:
We see in appellant's belt buckles conceptually separable sculptural elements, as apparently have the FOOTNOTES
buckles' wearers who have used them as ornamentation for parts of the body other than the waist.
* Of the United States District Court for the District of Connecticut, sitting by designation.
1. The statute also defines "useful article" as one "having an intrinsic utilitarian function that is not
632 F.2d at 993.
merely to portray the appearance of the article or to convey information. An article that is normally a part
of a useful article is considered a `useful article.'" 17 U.S.C. § 101.
My colleagues' adaptation of the Denicola test tracks the Carol Barnhart approach, whereas I would 2. Professor Denicola rejects the exclusion of all works created with some utilitarian application in view,
adopt that taken in Kieselstein-Cord, which allows for the copyrightability of the aesthetic elements of for that would not only overturn Mazer v. Stein, 347 U.S. 201, 74 S.Ct. 460, 98 L.Ed. 630 (1954), on
useful articles even if those elements simultaneously perform utilitarian functions.1 The latter approach which much of the legislation is based, but also "a host of other eminently sensible decisions, in favor of
an intractable factual inquiry of questionable relevance." 67 Minn.L.Rev. at 741. He adds that "[a]ny
received its fullest elaboration in Judge Newman's dissent in Carol Barnhart, where he explained that
such categorical approach would also undermine the legislative determination to preserve an artist's
"[f]or the [artistic] design features to be `conceptually separate' from the utilitarian aspects of the useful ability to exploit utilitarian markets." Id. (citing 17 U.S.C. § 113(a) (1976)).
article that embodies the design, the article must stimulate in the mind of the beholder a concept that is
separate from the concept evoked by its utilitarian function." 773 F.2d at 422 (Newman, J., dissenting). 3. We are reminded not only by Judge Gesell in the district court in Esquire, 414 F.Supp. 939, 941
(D.D.C.1976), but by Holmes in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52, 23
S.Ct. 298, 300-01, 47 L.Ed. 460 (1903), by Mazer v. Stein, 347 U.S. at 214, 74 S.Ct. at 468, and by
In other words, the relevant question is whether the design of a useful article, however intertwined with
numerous other opinions, that we judges should not let our own view of styles of art interfere with the
the article's utilitarian aspects, causes an ordinary reasonable observer to perceive an aesthetic decisionmaking process in this area. Denicola suggests that the shape of a Mickey Mouse telephone is
concept not related to the article's use. The answer to this question is clear in the instant case because copyrightable because its form is independent of function, and "[a] telephone shape owing more to Arp,
any reasonable observer would easily view the Ribbon Rack as an ornamental sculpture.2 Indeed, Brancusi, or Moore than Disney may be equally divorced from utilitarian influence." 67 Minn.L.Rev. at
there is evidence of actual confusion over whether it is strictly ornamental in the refusal of a building 746. This is true, of course, of the artist Christo's "Running Fence," approved (following Professor
manager to accept delivery until assured by the buyer that the Ribbon Rack was in fact a bicycle rack. Nimmer) as an example of conceptual separability in Keiselstein-Cord, 632 F.2d at 993.
Moreover, Brandir has received a request to use the Ribbon Rack as environmental sculpture, and has
4. Because the district court viewed the rack as entirely functional, it therefore did not reach the next
offered testimony of art experts who claim that the Ribbon Rack may be valued solely for its artistic step of determining whether Brandir's RIBBON Rack had acquired secondary meaning by the time
features. As one of those experts observed: "If one were to place a Ribbon Rack on an island without Cascade started to manufacture its bicycle rack.
access, or in a park and surround the work with a barrier, ... its status as a work of art would be beyond
dispute."3 5. Indeed, in addition to the numerous bicycle racks on the market, one may observe trees, awning
supports, parking meters, signs, fire plugs, and many other objects used as bicycle racks.
My colleagues also allow too much to turn upon the process or sequence of design followed by the 1. Indeed, Kieselstein-Cord approved Professor Nimmer's example of Christo's "Running Fence" as an
designer of the Ribbon Rack. They thus suggest that copyright protection would have been accorded object whose sculptural features were conceptually, but not physically, separable from its utilitarian
"had Brandir merely adopted ... as a bicycle rack" an enlarged version of one of David Levine's original aspects. 632 F.2d at 993; see 1 Nimmer on Copyright § 2.08[B] at 2-96.1 & n. 112.2 (1987). The fact
sculptures rather than one that had wider upper loops and straightened vertical elements. I cannot that the Running Fence's aesthetic features were "inextricably intertwined" with its functional aspects,
agree that copyright protection for the Ribbon Rack turns on whether Levine serendipitously chose the however, creates doubt as to whether it is a copyrightable "sculptural work" under Carol Barnhart or the
instant decision.
final design of the Ribbon Rack during his initial sculptural musings or whether the original design had
to be slightly modified to accommodate bicycles. Copyright protection, which is intended to generate 2. The reasonable observer may be forgiven, however, if he or she does not recognize the Ribbon Rack
incentives for designers by according property rights in their creations, should not turn on purely as an example of minimalist art.
fortuitous events. For that reason, the Copyright Act expressly states that the legal test is how the final
article is perceived, not how it was developed through various stages. It thus states in pertinent part: 3. The Copyright Office held that the Ribbon Rack was not copyrightable because it lacked originality.
There may be some merit in that view in light of the Ribbon Rack's use of standard radii. This issue,
however, was not raised in defendant's motion for summary judgment, was not addressed by the district
the design of a useful article ... shall be considered a ... sculptural work only if, and only to the extent court, and is not implicated here.
that, such design incorporates ... sculptural features that can be identified separately from, and are
capable of existing independently of, the utilitarian aspects of the article.

17 U.S.C. § 101 (1982) (emphasis added).

I therefore dissent from the decision so far as it relates to copyrightability but concur in its discussion
and holding as to the trademark and unfair competition claims.