Douglas C. Broeker, Fowler, White, Burnett, Hurley, Banick & 
Strickroot, P.A., Miami, FL, David L. Foster, Theodore Case
Whitehouse, Francis  J. Menton, Jr., Willkie, Farr & Gallagher,
Baila H. Celedonia, Roger L. Zissu,  Cowan, Liebowitz & Latman,
P.C., New York City, for appellants. Robert Richards, Anthony B.
Askew, Jones, Askew & Lunsford, Atlanta, GA, for  Bellsouth
Advertising.  John K. Roedel, Jr., Senniger, Powers, Leavitt &
Roedel, St. Louis, MO, for amicus ANADP.  Robert E. Marsh,
Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City,  MO,
for amicus--US WEST.  Robert Alan Garrett, Arnold & Porter,
Washington, DC, for amicus Bell Atlantic.

Appeal from the United States District Court for the Southern
District of Florida.

Before TJOFLAT, Chief Judge, FAY, HATCHETT, EDMONDSON, BIRCH,
BLACK and  CARNES, Circuit Judges 
(Honorable Phyllis A. Kravitch, Honorable R. Lanier Anderson,
III,  Honorable Emmett Ripley Cox and Honorable Joel F. Dubina
did not participate in this decision.)

BIRCH, Circuit Judge:

                         I. INTRODUCTION

     In this appeal, we must decide whether acts of copying
infringed the compilation copyright registered in a "yellow
pages" classified business directory.  The parties have
stipulated that the directory, which is a typical yellow pages
directory, qualifies for compilation copyright protection.  Thus, 
we are called upon to apply Feist Publications, Inc. v. Rural
Tel. Serv.  Co., 499 U.S. 340, 111 S.Ct. 1282, 113 L.Ed.2d 358
(1991), which addressed copyright protection for a "white pages"
telephone directory, to resolve the infringement claims presented
to us concerning a directory of a different color.

     The pivotal issue in this case is whether that which was
copied by the alleged infringer was protected by the registered
claim of compilation copyright.  The parties agree that the only
elements of a work entitled to compilation copyright protection
are the selection, arrangement or coordination as they appear in
the work as a whole.  The parties dispute what elements of a 
classified directory constitute such selection, arrangement or
coordination.  Mindful that the protection afforded to a whole
work by a compilation copyright is "thin," [FN1] the
determination as to whether an infringement of a compilation
copyright has occurred is particularly difficult where less than 
the entire work is copied.

                          II. BACKGROUND

     BellSouth Advertising & Publishing Corporation ("BAPCO") is
a wholly owned subsidiary of BellSouth Corporation ("BellSouth")
created for the purpose of preparing, publishing and distributing
telephone directories.  Using telephone listing information
supplied by Southern Bell Telephone and Telegraph Company 
("Southern Bell"), another wholly owned subsidiary of BellSouth,
BAPCO  publishes a classified, "yellow pages," advertising
directory for the Greater Miami area.  The BAPCO directory is
organized into an alphabetical list of business classifications. 
Each business-rate telephone service subscriber is listed in
alphabetical order under one appropriate heading without charge. 
A subscriber may purchase cross listings under different business
classifications or advertisements to appear along with its
business listing.   After BAPCO published its 1984 directory for
the Greater Miami area, Donnelley Information Publishing, Inc.
and Reuben H. Donnelley Corp. (collectively  "DONNELLEY") began
promoting and selling classified advertisements to be placed in a
competitive classified directory for the Greater Miami area.  To 
generate a list of business telephone subscribers to be solicited
for placement in its directory, DONNELLEY gave copies of BAPCO's
directory to Appalachian Computer Services, Inc. ("ACS"), a data
entry company.  DONNELLEY first marked each listing in the BAPCO
directory with one alphanumeric code indicating the size and type
of advertisement purchased by the subscriber [FN2]  and a similar
code indicating the type of business represented by the BAPCO 
heading under which the listing appeared.  For each listing
appearing in the BAPCO directory, ACS created a computer data
base containing the name, address, and telephone number of the
subscriber as well as the codes corresponding to business type
and unit of advertising.  From this data base, DONNELLEY printed 
sales lead sheets, listing this information for each subscriber,
to be used to contact business telephone subscribers to sell
advertisements and listings in the DONNELLEY directory.  Relying
on this information copied from the BAPCO directory, DONNELLEY
ultimately prepared its own competitive directory for the 
Greater Miami area.

     BAPCO sued DONNELLEY for alleged copyright infringement,
[FN3] trademark infringement, and unfair competition.  After the
district court denied BAPCO's motion for a preliminary
injunction, DONNELLEY answered and counterclaimed against BAPCO,
Southern Bell and BellSouth, for alleged violations of federal 
antitrust law.  On the copyright infringement claim, the district
court granted summary judgment to BAPCO and denied DONNELLEY'S
motion seeking partial summary judgment in its favor, [FN4]
BellSouth Advertising & Publishing Corp. v. Donnelly Info.
Publishing, Inc., 719 F.Supp. 1551 (S.D.Fla.1988). 

     The district court found, and DONNELLEY admitted, that BAPCO
owned a valid compilation copyright in its classified directory. 
DONNELLEY stipulated that, in preparing its data base and sales
lead sheets, it obtained from each listing in the BAPCO
directory, the telephone number, name, address, kind of business, 
and unit of advertising for the listed subscriber.  As further
evidence of copying, the district court relied on affidavits and
deposition testimony from DONNELLEY'S representatives and the
presence of a number of erroneous listings common to the BAPCO
and DONNELLEY directories.  From the process by which DONNELLEY
prepared its competitive yellow pages directory, the district
court identified three acts of copying:  (1) the entry of
subscriber information into the computer data base by ACS;  (2)
the printout of sales lead sheets from this data base;  and (3)
the publication of DONNELLEY'S directory.  Based on these acts of
copying, the court granted BAPCO's motion for summary judgment on
its copyright infringement claims. [FN5]  DONNELLEY appealed the
district court's resolution of the parties' motions on the
copyright claim. [FN6] 
                  
                         III. DISCUSSION

     A. FEIST Publications and the Requirement of Originality.  
In FEIST Publications, the Supreme Court clarified the scope of
copyright  protection afforded to factual compilations.  Rural
Telephone Service Company  ("Rural") claimed that FEIST
Publications, Inc. ("FEIST") infringed Rural's copyright by using
names and telephone number listings from Rural's white pages 
directory to compile its own white pages directory.  Observing
the inherent tension between the axiom of copyright law that
facts are not copyrightable [FN7] and the principle that
compilations of fact generally are copyrightable, the Court
identified those components of a factual compilation that may
receive copyright protection under certain circumstances.  499
U.S. at ----, 111  S.Ct. at 1287.

     The Court stressed that "[t]he sine qua non of copyright is
originality."  499 U.S. at ----, 111 S.Ct. at 1287. [FN8] 
"Facts, whether alone or as a part of a compilation, are not
original and therefore may not be copyrighted."  499 U.S. at
----, 111 S.Ct. at 1290.  Drawing upon the requirement of
originality and the definition of "compilation" in the Copyright 
Act, [FN9] the Court held that a compiler's selection,
arrangement and coordination, if original, are the only
protectable elements of a factual compilation.  499 U.S. at ----,
111 S.Ct. at 1289. [FN10] 

     Applying the requirement of originality to the directory
compiled by Rural, the Court noted that the listings, consisting
of subscribers' names, towns of residence, and telephone numbers,
were uncopyrightable facts.  Further, the selection,
coordination, and arrangement of Rural's white pages were not
sufficiently original to merit copyright protection. "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."  499 U.S.
at ----, 111 S.Ct. at 1296.  Rural failed to establish any
original elements of coordination or arrangement: "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."  499 U.S. at ----, 111 S.Ct. at
1297.  In short, "Rural expended sufficient effort to make the
white pages directory useful, but insufficient creativity to 
make it original."  499 U.S. at ----, 111 S.Ct. at 1296.

                 B. BAPCO's Claim of Infringement

     To establish its claim of copyright infringement, BAPCO must
prove:  "(1)  ownership of a valid copyright, and (2) copying of
constituent elements of the work that are original."  499 U.S. at
----, 111 S.Ct. at 1296.  The validity of BAPCO's copyright in
its directory, considered as a whole, was conceded by  DONNELLEY.
[FN11]  To demonstrate the second element of infringement,  BAPCO
must prove that DONNELLEY, by taking the material it copied from
the BAPCO directory, appropriated BAPCO's original selection,
coordination or arrangement.

     The district court found that BAPCO engaged in a number of
acts of selection in compiling its listings.  For example, BAPCO
determined the geographic scope of its directory and the closing
date after which no changes in listings would be included. 
BellSouth, 719 F.Supp. at 1557-58.  The district court erred,
however, in implicitly determining that these selective acts were
sufficiently original to merit copyright protection.  Rural
obviously established a geographic scope and a closing date for
its white pages, which were held uncopyrightable as a matter of
law in FEIST.  The district court's analysis would protect such
factual elements of every compilation;  any collection of facts
"fixed in any tangible medium of expression" [FN12] will by 
necessity have a closing date and, where applicable, a geographic
limit selected by the compiler.  The district court found that
BAPCO "selected" its listings by requiring its yellow pages
subscribers to use a business telephone service.  Id. at 1557. 
The district court also focused on a number of marketing
techniques employed by BAPCO to generate its listings, such as
the determination of the number of free listings offered to each
subscriber, the selection of which customers to contact by an
on-premise visit from sales personnel, the selection of the date
of commencement of its advertisement sales campaign, and the
procedure used to recommend the purchase of listings under 
multiple headings.  Id. at 1557.  The district court again failed
to consider whether these "acts of selection" met the level of
originality required to extend the protection of copyright to
BAPCO's selection.

     More fundamental, these acts are not acts of authorship, but 
techniques for the discovery of facts.  In FEIST, the Court
emphasized the distinction "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."  499
U.S. at ----, 111 S.Ct. at 1288.  By employing its sales
strategies, BAPCO discovered that certain subscribers describe
their businesses in a particular fashion and were willing to pay
for a certain number of listings under certain available business
descriptions.  To be sure, BAPCO employed a set of strategies or
techniques for discovering this data.  Any useful collection of
facts, however, will be structured by a number of decisions
regarding the optimal manner in which to collect the pertinent 
data in the most efficient and accurate manner.  If this were
sufficient, then the protection of copyright would extend to
census data, cited in FEIST as a paradigmatic example of a work
that lacks the requisite originality.  499  U.S. at ----, 111
S.Ct. at 1288.  Just as the Copyright Act does not protect 
"industrious collection," it affords no shelter to the
resourceful, efficient, or creative collector.  See Miller v.
Universal City Studios, Inc., 650 F.2d  1365, 1372 (5th Cir. July
1981) ("The valuable distinction in copyright law between facts
and the expression of facts cannot be maintained if research is 
held to be copyrightable.").  The protection of copyright must
inhere in a creatively original selection of facts to be reported
and not in the creative means used to discover those facts.  See
17 U.S.C. s 102(b) ("In no case  does copyright protection ...
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.").  Ultimately, the district court erred
by extending copyright protection to the collection of facts in
the BAPCO directory based on the uncopyrightable formative acts
used to generate those listings.

     In addition to these acts of selection, the district court 
found that BAPCO engaged in feats of coordination and arrangement
to generate its yellow pages directory.  The court explains that
BAPCO arranged its directory in an alphabetized list of business
types, with individual businesses listed in alphabetical order
under the applicable headings.  The Copyright Act protects
"original works of authorship."  17 U.S.C. s 102(a).  BAPCO's 
arrangement and coordination is "entirely typical" for a business
directory.  FEIST, 499 U.S. at ----, 111 S.Ct. at 1296. [FN13] 
With respect to business telephone directories, such an
arrangement "is not only unoriginal, it is practically
inevitable."  499 U.S. at ----, 111 S.Ct. at 1297.
 
     BAPCO's claim of copyright in the arrangement of its
directory also does not survive application of the "merger"
doctrine.  Under the merger doctrine, "expression is not
protected in those instances where there is only one or so few
ways of expressing an idea that protection of the expression
would effectively accord protection to the idea itself."  Kregos
v. Associated  Press, 937 F.2d 700, 705 (2d Cir.1991); [FN14] 
see also Baker v. Selden,  101 U.S. (11 Otto) 99, 25 L.Ed. 841
(1879).  Because this is the one way to  construct a useful
business directory, the arrangement has "merged" with the  idea
of a business directory, and thus is uncopyrightable. [FN15] 

     The district court's suggestion that BAPCO could have
arranged its headings according to the number of advertisers or
to list its subscribers under each heading according to the
length of time for which that subscriber had appeared under that
heading misapprehends the question.  The relevant inquiry is not
whether there is some imaginable, although manifestly less 
useful, method of arranging business telephone listings.  In
FEIST, Rural could have published multiple directories for its
service area or listed its numbers in numerical order, by age, or
by neighborhood within a single directory.  The pertinent inquiry
is whether the compiler has demonstrated originality, the "sine
qua non" of copyright, in its arrangement or coordination.  The
arrangement of BAPCO's yellow pages, like that of Rural's white
pages is "entirely typical" of its respective type.   

     The district court also identified acts of coordination and 
arrangement in the particular system of headings used in the
BAPCO directory.  The district court appears to find that, when
DONNELLEY entered the listing information from the BAPCO
directory, it also copied the particular heading under which that
listing appeared in the BAPCO directory.  719 F.Supp. at 
1558-59. [FN16]  BAPCO, however, failed to introduce evidence
sufficient to establish a genuine dispute of material fact as to
whether DONNELLEY copied the particular heading structure
employed by BAPCO.  DONNELLEY stipulated that it obtained the
"business type" for each listing from the BAPCO directory.  R1-8. 
The evidence submitted to the district court in the form of
affidavit, deposition, and witness testimony reveals that
DONNELLEY established its own system of headings and that, in
constructing its data base, DONNELLEY entered an alphanumeric
code that corresponded to the DONNELLEY heading with each BAPCO
listing.  5SR2, at 183-85;  1SR-434, at 76-77, 143-44;  1SR-435,
at 253- 54 and Ex. 278;  Deposition of John Notestein, at 10, 12,
14-15, 22.  Further,  the sales lead sheets generated by
DONNELLEY from its database, as well as pages of the respective
directories submitted to the district court, illustrate that
DONNELLEY selected a somewhat different category of headings to
describe the listings originally appearing in the BAPCO
directory. [FN17]  Considering  the extent to which the heading
structure of a classified business directory is  dictated by
functional considerations and common industry practice, the 
differences apparent in the glossary of headings employed by
DONNELLEY are sufficient to rebut any inference of copying that
otherwise might be drawn from those terms that are common to both
directories. [FN18]  In sum, the evidence before the district
court requires the conclusion that, by determining the type of
business of each subscriber by observation of the BAPCO directory 
and translating that business type into an encoded heading of its
own creation,  DONNELLEY extracted uncopyrightable information
regarding the business activities of BAPCO's subscribers without
appropriating any arguably original, protectable expressive
element in the BAPCO glossary of headings. 

     Additionally, BAPCO failed to present evidence that, even if
copied, its heading structure constitutes original expression 
warranting copyright protection.  Initially, many of the selected
headings, for example "Attorneys" or "Banks," represent such an
obvious label for the entities appearing under these headings as
to lack the requisite originality  for copyright protection.
[FN19]  BAPCO can claim no copyright in the idea of dividing
churches by denomination or attorneys by area of specialty. 
Further,  any expressive act in including a category such as
"Banks" or in dividing "Attorneys" into categories such as
"Bankruptcy" or "Criminal Law" would lose copyright protection
because it would merge with the idea of listing such entities as
a class of businesses in a business directory. [FN20]  The
evidence  submitted by DONNELLEY also establishes that many of
BAPCO's headings result from certain standard industry practices,
such as the recommendations of the National Yellow Pages Sales
Association, with regard to the selection and phrasing of
headings in business directories.  Finally, as established by the 
testimony of BAPCO's representatives, the ultimate appearance of
a particular subscriber under a certain heading is determined by
the subscriber's willingness to purchase those listings in the
BAPCO directory.  While BAPCO may select the headings that are
offered to the subscriber, it is the subscriber who selects from
those alternatives the headings under which the subscriber will
appear in the copyrighted directory.  The headings that actually
appear in the directory thus, do not owe their origin to BAPCO
and BAPCO has claimed no copyright in the larger universe of
headings that are offered to subscribers.  Thus, the elements of
selection, coordination and arrangement identified by the 
district court, and purportedly copied by DONNELLEY, as a matter
of law, do not display the originality required to merit
copyright protection. 

     Although purporting to consider whether DONNELLEY copied the
original elements of selection, arrangement or coordination from
the BAPCO directory, the opinion of the district court rests, at
least in part, on a comparison of  the appearance of
corresponding pages from both directories. [FN21]  For example,
the court concluded that "DONNELLEY used a format nearly
identical to that used by BAPCO" and that "although DONNELLEY'S
directory is not identical to BAPCO's directory, the material was
copied and used to produce a directory  substantially similar in
both content and format."  719 F.Supp. at 1559.  The district
court erred, however, by failing to consider the degree to which
the similarity between the two directories was because of 
DONNELLEY'S use of the uncopyrightable facts, such as name,
number, address, and business type, from the BAPCO directory. 
Further, to the extent that this similarity of format resulted
from was due to the common arrangement and coordination of the
two directories into alphabetized business classifications, with
alphabetized listings under each classification, the district
court erred by extending the scope of BAPCO's copyright to
capture the system of organization common to all classified
directories in the public domain.  Moreover, the other elements
of format common to the two directories, such as the organization
of listings into four columns, are also manifestly typical, 
obvious and unoriginal.

     By comparing the overall appearance of the two directories 
through its comparison of the corresponding pages, the district
court effectively failed to consider whether DONNELLEY copied the
"constituent elements of the work that are original."  FEIST, 499
U.S. at ----, 111 S.Ct.  at 1296.  In the case of a factual
compilation, a comparison of the copyright holder's work with
that of the alleged infringer must distinguish similarities 
attributable to ideas, which are unprotected per se, or to
expression not owned by the copyright holder, from those
similarities resulting from the copying of the compiler's
original elements. [FN22]  We consider this conclusion to be 
compelled by section 103(b) of the Copyright Act, which directs
that "[t]he copyright in a compilation or derivative work extends
only to the material contributed by the author of such work, as
distinguished from the preexisting material employed in the work,
and does not imply any exclusive right in the preexisting
material."  17 U.S.C. s 103(b).

     We note that DONNELLEY did not copy, nor was alleged to have
copied, the text or graphic material from the advertisements in
the BAPCO directory, the positioning of these advertisements, the
typeface, or the textual material included by BAPCO to assist the
user.  Unlike the infringer in Southern Bell  Tel. & Tel. Co. v.
Associated Tel. Directory Publishers, 756 F.2d 801 (11th 
Cir.1985), DONNELLEY did not photocopy, or reproduce by any
equivalent means, the page by page arrangement or appearance of
its competitor's directory in the process of creating its own
work.  Although the amount of material taken from the BAPCO
directory was substantial in a purely quantitative sense,
DONNELLEY did not, by this process, appropriate whatever original
elements might arguably inhere in the BAPCO directory.  Given
that the copyright protection of a factual compilation is "thin,"
a competitor's taking the bulk of the factual  material from a
preexisting compilation without infringement of the author's 
copyright is not surprising.  FEIST, 499 U.S. at ----, 111 S.Ct.
at 1289.  While it may seem unfair for a compiler's labor to be
used by a competitor without compensation, the Court noted in
FEIST that "[t]he primary objective of copyright is not to reward
the labor of authors, but '[t]o promote the Progress of Science
and useful Arts.' "  499 U.S. 1446 at ----, 111  S.Ct. at 1290
(quoting U.S. Const. art. I, s 8, cl. 8).  "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."  Id. (emphasis added);  see also
Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539,
545-46, 105 S.Ct. 2218, 2223, 85 L.Ed.2d 588 (1985).

                          IV. CONCLUSION

     By copying the name, address, telephone number, business
type, and unit of advertisement purchased for each listing in the
BAPCO directory, [FN23] DONNELLEY copied no original element of
selection, coordination or arrangement;  DONNELLEY thus was
entitled to summary judgment on BAPCO's claim of copyright
infringement. [FN24]  We REVERSE the judgment of the district 
court granting summary judgment to BAPCO on its claim of
copyright infringement and enter judgment in favor of DONNELLEY
on this claim.

                       APPENDIX IS OMMITED

                    MAJORITY OPINION FOOTNOTES

     FN1. Feist, 499 U.S. at ----, 111 S.Ct. at 1289.

     FN2. The code corresponding to the type of advertising
appearing in the BAPCO directory indicated only the unit of
advertising purchased.  DONNELLEY did not record, nor was alleged
to have recorded, information regarding the graphic appearance or
page location of the advertising material, nor did it copy facts
concerning individual businesses, such as product lines,
services, hours of operation, contained in the advertisements
themselves.

      FN3. BAPCO registered its claim of copyright (attached to
this opinion as Appendix A) for the "entire text and compilation"
of both volumes of its 1984 Miami yellow pages directory. 
R1-1-Ex. D.  It was upon this registration that BAPCO initiated
its action for infringement.  See 17 U.S.C. s 411(a) ("[N]o
action for infringement of the copyright in any work shall be
instituted until registration of the copyright claim has been
made in accordance with this title.").

      FN4. The district court granted BAPCO's motion for summary
judgment on DONNELLEY'S antitrust counterclaim, but denied
BellSouth and Southern Bell's motion for summary judgment on the
antitrust counterclaim.  The only issue presented by this appeal
is the district court's resolution of the copyright infringement
claims.

      FN5. In granting summary judgment in favor of BAPCO, the
district court rejected DONNELLEY'S fair use and antitrust, or
misuse of copyright, affirmative defenses as a matter of law. 
Because we hold that summary judgment should have been granted in
favor of DONNELLEY on BAPCO's copyright claim, we do not reach
the issue of whether DONNELLEY'S defenses were properly rejected
on summary judgment.

      FN6. The judgment of the district court was affirmed by a
panel of this court, but was subsequently vacated by a grant of
rehearing en banc.   Bellsouth Adv. & Pub. Corp. v. DONNELLEY
Info. Pub., Inc., 933 F.2d 952 (11th Cir.1991), vacated and reh'g
en banc granted, 977 F.2d 1435 (11th Cir.1992).

     FN7. See 17 U.S.C. s 102(b).

     FN8. Moreover, "[o]riginality is a constitutional
requirement" for copyright protection implicit in the grant of
power to Congress to "secur[e] for limited Times to Authors ...
the exclusive Right to their respective Writings."  FEIST, 499
U.S. at ----, 111 S.Ct. at 1288 (quoting U.S. Const. art. I, s 8,
cl. 8).

      FN9. Section 101 of the Copyright Act of 1976 defines acompilation 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."  17 U.S.C. s 101.

      FN10. In confirming originality as the focus of copyright
protection, the Court rejected an alternative theory to justify
the protection of factual compilations.  Relying upon a doctrine
known alternatively as "sweat of the brow" or "industrious
collection," some courts had extended copyright protection to
every element of a factual compilation based on the labor     
expended by the author in compiling the constituent facts.  By
extending copyright protection in a compilation beyond the
author's original selection, arrangement, and coordination, this
line of cases "eschewed the most fundamental axiom of copyright
law--that no one may copyright facts or ideas."  499 U.S. at
----, 111 S.Ct. at 1291.

      FN11. Because of the parties' concession, we do not
consider whether BAPCO's yellow pages directory, taken as a
whole, is copyrightable. 

      FN12. 17 U.S.C. s 102(a).

      FN13. While the listings in BAPCO's yellow pages required
somewhat more organization and arrangement than the white pages
directory considered in FEIST, BAPCO's claim of "originality"
must be resolved by comparison to other business telephone
directories.  BAPCO did not deviate from the arrangement of the
typical business directory, which employs an alphabetical list of
headings to describe the various types of business and then
alphabetizes the listings under the appropriate headings     
Applying FEIST, the Second Circuit declined to extend copyright   
protection to the selection and arrangement of certain charts
displaying the results of horse racing.  Victor Lalli Enters. v.
Big Red Apple,Inc., 936 F.2d 671, 673-74 (2d Cir.1991).  "The
format of the charts is a convention:  Lalli exercises neither
selectivity in what he reports nor creativity in how he reports
it."  Id. at 673.  Similarly, the Ninth Circuit rejected a claim
that two automobile catalogs listing replacement radiators and
associated parts were substantially similar.  Cooling Sys. &
Flexibles, Inc. v. Stuart Radiator, 777 F.2d 485, 491 (9th     
Cir.1985).  Although both works were arranged into three sections
(an illustrations section, an original equipment manufacturer
section, and an applications section), the court found that this
arrangement was obligatory for a useful radiator parts catalog. 
"[T]he fewer the methods of expressing an idea, the more the
allegedly infringing work must resemble the copyrighted work in
order to establish substantial similarity."  Id.  A subsequent
collector is not required to arrange its compilation in a fashion
not usable by those for whom it is intended.  Id. at 492.  The
format of a typical business telephone directory is even more
obvious and well established than the radiator catalogs at issue
in Cooling Systems.

      FN14. See Kern River Gas Transmission Co. v. Coastal Corp.,
899 F.2d 1458, 1463-64 (5th Cir.) (applying merger doctrine where
idea of locating pipeline along certain route was inseparable
from expression of the route on a topographical map), cert.
denied, 498 U.S. 952, 111 S.Ct. 374, 112, L.Ed.2d 336 (1990); 
see also Educational Testing Services v. Katzman, 793 F.2d 533,
539 (3d Cir.1986);  Toro Co. v. R & R Products Co., 787 F.2d
1208, 1212 (8th Cir.1986).

      FN15. In Matthew Bender & Co. v. Kluwer Law Book
Publishers, Inc., 672 F.Supp. 107 (S.D.N.Y.1987), the court
considered the application of the merger doctrine to a claim of
copyright in a system of charts displaying information regarding
the amount of recovery in previous personal injury cases.  Both
the plaintiff's work and that of the alleged infringer divided 
the cases into chapters corresponding to the part of the body
injured and further divided the cases within each chapter based
on whether the recovery was a result of a settlement, or an
"adequate," "inadequate," or "excessive" award.  672 F.Supp. at
108.  Each work listed the cases according to forum state,
arranging awards from the same state from largest to smallest
amount.  In both collections, information regarding each case     
was organized into categories for amount, case name, plaintiff,
event, injury, and further relevant data.  The court rejected the
plaintiff's claim of copyright, concluding that the plaintiff's
work employed one of the few practical and useful means of
organizing data regarding personal injury awards.  The idea and
the expression of such a work thus "merged."      Id. at 109-10. 
Further, the information selected for display about each     
case was obvious and did not demonstrate the original selection,  
arrangement or coordination required for copyright protection. 
Id. at 112;  see also Coates-Freeman Assocs., Inc. v. Polaroid
Corp., 792 F.Supp. 879, 883-84 (D.Mass.1992) (Placement of
decisionmaking steps on chart purporting to categorize leadership
styles was not a copyrightable feature where selection of those
particular steps out of a universe of very limited options
resulted in merger of any creativity into the basic idea of     
the chart).

      FN16. Significantly, BAPCO registered no claim of copyright
in the glossary of terms used to describe the types of businesses
represented by its listings.  BAPCO claims that DONNELLEY
infringed its putative copyright in its directory (the only claim
of copyright before the court) by somehow copying the directory
onto the sales lead sheets (Appendix B).  This argument
exemplifies the fundamental misconception of the nature and scope
of a compilation copyright.  A comparison of the DONNELLEY sales
lead sheets and the BAPCO directory pages (Appendix C) manifests
no substantial similarity as to those copyrightable elements of a
compilation.  The dissent continues to confuse and merge the
copying of uncopyrightable data with the replication of the
copyrightable elements of a compilation. 

      FN17. Despite the dissent's belief to the contrary, our
opinion is based on the evidence that was before the district
court, including a number of sales lead sheets (Appendix B) and
pages from both directories (Appendix C).

      FN18. Where the form of expression is largely prescribed by
functional constraints, the similarity of expression in a
subsequent work must be very close in order to establish
infringement.  "Factual works are different [from works of
fiction].  Subsequent authors wishing to express the ideas     
contained in a factual work often can choose from only a narrow
range of expression....  Therefore, similarity of expression may
have to amount to verbatim reproduction or very close
paraphrasing before a factual work will be deemed infringed." 
Landsberg v. Scrabble Crossword Game Players,Inc., 736 F.2d 485,
488 (9th Cir.1984).

      FN19. See Sem-Torq, Inc. v. K Mart Corp., 936 F.2d 851,
854-55 (6th Cir.1991) (Copyright law does not protect "forms of
expression dictated solely by functional considerations.").

      FN20. See Matthew Bender, 672 F.Supp. at 111 (Under merger
doctrine, plaintiff could claim no copyright protection in
headings used to display data regarding personal injury awards
where "terms employed are the most logical and clear way of
expressing the idea to be conveyed.... [and] these terms, or
synonyms for them, are the only way of conveying the desired     
information.").

      FN21. A comparison of corresponding pages from the two
directories, which were before the district court as set out in
Appendix C, reveals several obvious differences in typeface and
graphic layout.  DONNELLEY included different advertisements, not
only in content, but also in number and design.  BAPCO underlines
its headings while DONNELLEY marks its headings with a sideways
triangle.  DONNELLEY uses a different type face.  Whatever
original authorship is represented by these types of presentation
choices was clearly not copied by DONNELLEY.  Further, the sales
lead sheets (attached in Appendix B) produced from the ACS data
base are obviously not similar in appearance or arrangement to
BAPCO's directory, in which its claim of copyright was
registered.

      FN22. The Second Circuit has observed:  "Although the test
for infringement of original works and compilations is one of
"substantial similarity," the appropriate inquiry is narrowed in
the case of a compilation.  As noted, the components of a
compilation are generally in the public domain, and a finding of
substantial similarity or  even absolute identity as to matters
in the public domain will not suffice to prove infringement. 
What must be shown is substantial similarity between those
elements, and only those elements, that provide copyrightability
to the allegedly infringed compilation.  Key Publications, Inc.
v. Chinatown Today Publishing Enters., Inc., 945 F.2d 509, 514
(2d Cir.1991) (citations omitted);  see also Cooling Sys.,     
777 F.2d at 492-93 ("What is important is not whether there is
substantial similarity in the total concept and feel of the
works, but whether the very small amount of protectable
expression in Cooling Systems' catalog is substantially similar
to the equivalent portions of Stuart's catalog.") (citation
omitted).

      FN23. The common errors in the BAPCO and DONNELLEY listings
prove only that DONNELLEY admittedly copied the name, number,
address, and type of business from every BAPCO listing.  The
presence of common errors is not probative of whether the
portions of the BAPCO directory copied by DONNELLEY included the
copyrightable elements of original selection, coordination and
arrangement.  In FEIST, the alleged infringer copied every
listing from the compilers' white pages, including four erroneous 
listings.  499 U.S. at ----, 111 S.Ct. at 1287.  Because Rural
copied only uncopyrightable facts, however, the presence of
common errors was not relevant.  See also Shira Perlmutter, "The
Scope of Copyright in Telephone Directories:  Keeping Listing
Information in the Public Domain," 38 J.Copyright Society 1, 5-6
(Fall 1990) ("Where, as in FEIST, the defendant has admitted
copying, such evidence is simply irrelevant.  Copying of     
erroneous or fictitious entries has no bearing on the question of
whether material admittedly copied is protected by the
plaintiff's copyright, and if so, whether the taking is
substantial.");  Alan Latman, "Probative Similarity as Proof of
Copying:  Toward Dispelling Some Myths in Copyright
Infringement," 90 Columbia L.Rev. 1187, 1204-06 (1990)
(distinguishing use of common errors as proof of copying from use
as proof of substantial similarity of protected material).

      FN24. Summary judgment in favor of the defendant in an
infringement action is appropriate where the similarity between
the two works concerns only uncopyrightable elements of the
plaintiff's work.  Arica Inst., Inc. v. Palmer, 970 F.2d 1067,
1072 (2d Cir.1992);  Warner Bros., Inc. v. American Broadcasting
Cos., 720 F.2d 231, 240 (2d Cir.1983). 




                             DISSENT

     HATCHETT, Circuit Judge, dissenting:

     The majority's holding establishes a rule of law that
transforms the multi-billion dollar classified publishing
industry from a business requiring the production of a useful
directory based on multiple layers of creative decision-making,
into a business requiring no more than a successful race to a
data processing agency to copy another publisher's copyrighted
work-product.  In reaching this incredible result, the majority
forsakes thoughtful analysis of the evidence under the governing
principles articulated in FEIST, and leaps to a conclusion based
on nothing more than its collective judgment of what ought to be
copyrightable.

     Not only does the majority ignore the evidence presented in
the district court, but it also allows the appellant to obtain an
outright reversal of the district court with new arguments and
supplemental evidence that the district court never considered. 
In doing so, the majority transforms this en banc appellate court
into no more than a multiple judge trial court that allows 
unsuccessful litigants to have the proverbial 'second bite at the
apple.'  I  cannot join the majority in its disregard for the
well-established parameters of appellate review;  thus, I
respectfully dissent. [FN1] 

                            DISCUSSION

     In order to prevail on a claim of copyright infringement, a
plaintiff must prove two elements:  (1) that the plaintiff owns a
valid copyright in the work;  and (2) that the defendant copied
"constituent elements of the work that are original."  FEIST
Publications, Inc. v. Rural Telephone Service Co.,Inc., 499 U.S.
340, ----, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358, 379 (1991). 
DONNELLEY Information Publishing, Inc. and Reuben H. DONNELLEY
Corporation (collectively "DONNELLEY") concedes that Bellsouth
Advertising & Publishing Corporation ("BAPCO") possesses a valid
compilation copyright in the 1984 Greater Miami Yellow Pages
(1984 Yellow Pages ), taken as a whole.  DONNELLEY also
stipulated that it copied the following information from the 1984
Yellow Pages in preparing its "sales lead" sheets:  "1. 
telephone number--under the first column;  2.  name--under the
second column;  3.  address--under the third  column;  4.  kind
of business--under the fourth column;  and 5.  unit of 
advertising--under the fifth column."  Therefore, based on
DONNELLEY'S  concessions that BAPCO possesses a valid copyright
and its stipulation to copying information from the 1984 Yellow
Pages, this court is only asked to determine whether DONNELLEY
substantially copied constituent elements of the 1984 Yellow
Pages that are original.

               I. Copyrightability of Compilations

     It is settled that compilations of facts are copyrightable,
even though the facts themselves are not subject to copyright
protection.  FEIST Publications, 499 U.S. at ----, 111 S.Ct. at
1287, 113 L.Ed.2d at 368  (discussing the inherent tension
between these well-established propositions).  The Copyright Act
of 1976 defines a copyrightable compilation 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 an original work of
authorship."  17 U.S.C. s 101 (1988).  Therefore, section 101
identifies three requirements for a compilation to  qualify for
copyright protection:  "(1) the collection and assembly of 
preexisting 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."  FEIST, 499
U.S. at ----, 111 S.Ct. at 1293, 113 L.Ed.2d at  376.

     The Court in FEIST noted that the "selection, coordination,
or arrangement" requirement is the key to determining whether a
work qualifies as a copyrightable compilation.  See FEIST, 499
U.S. at ----, 111 S.Ct. at 1294, 113 L.Ed.2d at 377 (explaining
that "facts are never original, so the compilation author can
claim originality, if at all, only in the way that the facts are
presented").  The Court in FEIST emphasized that "the originality 
requirement is not particularly stringent."  See FEIST, 499 U.S. 
at ----, 111 S.Ct. at 1294, 113 L.Ed.2d at 377 (explaining that
originality means only that a compiler selects or arranges
independently and displays some minimal level of creativity, even
if the compiler settles upon a selection or arrangement that
others have used).  In addition, the Court in FEIST noted that a
copyrightable compilation is protected only to the extent of the 
author's "original" selection, coordination, or arrangement.  See
FEIST, 499  U.S. at ----, 111 S.Ct. at 1295, 113 L.Ed.2d at 378. 
Accordingly, this court must first determine what particular
elements of BAPCO's selection, coordination, and arrangement of
preexisting facts in the 1984 Yellow Pages are sufficiently
original to merit copyright protection.

       II. Original Selection, Coordination, or Arrangement

     Based on the undisputed facts, the district court concluded
that BAPCO performed the following acts of selection, 
coordination, or arrangement, which were sufficiently original to
merit copyright protection:  (1) the selection of the geographic
scope of businesses to be covered in the directory;  (2) the 
selection of the number of free listings for businesses in the
covered area;  (3) the selection of only businesses with business
telephone service for advertisements in the directory;  (4) the
selection of a menu of classified headings that would be
available for business listings;  (5) the selection of the
criteria for determining whether a business may advertise under a 
particular classified heading;  (6) the selection of the
classified headings that would be recommended to a particular
business customer;  (7) the selection of customers who would
receive on-premise sales contact, telephone sales  contact, or no
contact;  (8) the selection of the dates for the beginning and 
closing of the sales campaign for advertisements in the
directory;  and (9) the arrangement of all of the business
listings under a particular heading, in alphabetical order.  See
BellSouth Advertising & Publishing Corp. v. DONNELLEY Information
Publishing, Inc., 719 F.Supp. 1551, 1557-58  (S.D.Fla.1988).

     The panel agreed that the 1984 Yellow Pages constituted a
copyrightable compilation, identifying the following acts of
selection, coordination, or arrangement as sufficiently original: 
(1) selection of the geographic scope of businesses to be
included in the directory;  (2) selection of a directory close 
date as a limit on modifications that would be reflected in a
pending directory  publication;  (3) the creation or selection of
numerous classified headings that would be available for business
listings;  (4) the coordination of all the informational
components--name, address, and telephone number--of a particular 
business into one complete business listing;  and (5) the
arrangement of all coordinated business listings under the
appropriate classified headings.  See: Bellsouth Advertising &
Publishing Corp. v. DONNELLEY Information Publishing, Inc., 933
F.2d 952, 957-58 (11th Cir.1991), vacated and reh'g en  banc
granted, 977 F.2d 1435 (11th Cir.1992).

     DONNELLEY challenges the district court's and panel's
holding that BAPCO  performed sufficiently original acts of
selection, coordination, or arrangement to merit copyright
protection for the 1984 Yellow Pages.  DONNELLEY argues that the
district court erred in identifying BAPCO's alphabetizing of the
listings and classified headings as contributing to the
originality of the directory.  DONNELLEY also argues that the
district court erred in characterizing BAPCO's decisions to offer
one free listing, to include only business telephone service 
subscribers, and decisions on soliciting advertisements as acts
of selection "fixed" in the 1984 Yellow Pages, as opposed to
invisible business decisions.  In addition, DONNELLEY argues that
the panel erred in identifying BAPCO's coordination of the
informational components--name, address, and telephone 
number--of a particular business as an original act of
coordination.  Moreover, DONNELLEY argues that both the district
court and the panel erred in identifying BAPCO's selection of a
geographic scope, selection of classified  headings, and
arrangement of all business listings under a particular 
classified heading as "original" acts of selection or
arrangement.   BAPCO responds that the district court and panel
correctly concluded that BAPCO's acts of selection, coordination,
or arrangement were sufficiently original to be copyrightable. 
BAPCO analogizes the so-called "business decisions" with the
techniques that a photographer uses in taking a picture.  As the
techniques of the photographer affect the photograph, BAPCO 
argues that the published 1984 Yellow Pages would have been
completely different if BAPCO had selected a different geographic
scope, permitted residential telephone service subscribers to be
listed, chosen a different closing date, elected not to provide a
free listing, changed its available menu of classified headings,
engaged in different marketing efforts to sell business listings,
excluded businesses listings from nearby communities such as Fort 
Lauderdale, excluded listings of national businesses, or
permitted different arrangements between the available classified
headings and business listings.   DONNELLEY is correct to assert
that the holding in FEIST precludes this court from concluding
that BAPCO satisfied the originality requirement based on the
mere alphabetizing of business listings and classified headings, 
or based on the mere coordination of the name, address, and
telephone number of a particular business into one complete
business listing.  See FEIST, 499  U.S. at ----, 111 S.Ct. at
1297, 113 L.Ed.2d at 380-81 (holding that a  telephone company's
white pages lack the requisite originality for copyright 
protection where the telephone company merely published basic
subscriber information--name, town, and telephone number--and
arranged it alphabetically  based on surnames).

     DONNELLEY is also correct to assert that the district court
erred in characterizing BAPCO's decision to offer one free
listing and decisions on the dates and procedures for soliciting
advertisements as original acts of  "selection."  "Selection
implies the exercise of judgment in choosing which facts from a
given body of data to include in a compilation."  Key
Publications v. Chinatown Today Publishing Enterprises, Inc., 945
F.2d 509,  513 (2d Cir.1991) (citations omitted).  BAPCO's
decisions regarding a free listing and solicitation procedures
did not entail the exercise of judgment in choosing among facts
to be included in its directories.  "Selection" is not an 
appropriate term to describe the choices to include all of the
data in a given body of data, on a given date.  Instead of acts
of selection, these BAPCO's decisions are more closely analogous
to ideas or procedures for reliably and profitably collecting
facts.  As ideas or procedures, BAPCO's decision to offer a free
listing and its decisions regarding soliciting advertisements,
are not  copyrightable.  See 17 U.S.C. s 102(b) (providing that
no copyright protection for an original work of authorship
extends 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").

     However, even ignoring these erroneously identified acts of
selection, coordination, or arrangement, BAPCO's other acts of
selection and arrangement in compiling the 1984 Yellow Pages were
sufficient originality to merit copyright protection under FEIST.

               A. Selection of Classified Headings

     The clearest example of BAPCO's original selection is its
choice of the classified headings that would be included in the
1984 Yellow Pages.  Accord Key Publications, 945 F.2d at 514
(holding that a publisher's selection of 260 different
categories, even if including particular categories that have 
been used in other directories, involved sufficient creativity to
contribute to the overall originality of a classified directory). 
BAPCO selected the approximate 7,000 classified heading in the
1984 Yellow Pages from the 4,700  primary headings and
approximately 34,000 related headings in the BAPCO headings book. 
BAPCO presented the undisputed testimony of Gerald Brown that 
the BAPCO headings book is not standardized to coincide with the
menu of classified headings used in National Yellow Page Sales
Association (NYPSA) publications.  Moreover, even if BAPCO's
selection of classified headings is similar to other NYPSA
publications, it would still be copyrightable under FEIST so long
as BAPCO selected independently.  See FEIST, 499 U.S.  at ----,
111 S.Ct. at 1287, 113 L.Ed.2d at 369 (holding that "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"). [FN2]

     In addition, the testimony of DONNELLEY'S own witness
supports the  district court's conclusion that BAPCO's selection
of headings constituted an original act of selection. 
DONNELLEY'S corporate representative, Jon Notestein, responded to
a question about whether DONNELLEY created its headings
especially for the DONNELLEY Miami directory, with the following
statement:  "What we have learned in this business after 99 years
is that individual markets may have local terminology that
reflect differently in different parts of the country.  So, yes,
I'm sure we have created some headings, classifications to
represent types of business that we didn't normally use in
DONNELLEY in the Mid-west, for example."  See Deposition of Jon
Notestein, p.50.  In further describing the process of
particularizing headings for a specific directory, Notestein
explained that DONNELLEY maintains a list of over 7,000 headings
that are generally applied across the country, but "in the end 
the type of business appears in our directory is a reflection of
the marketing and needs of the market and users of the product. 
It is an ongoing process changing every day."  See Deposition of
Jon Notestein, p. 51 (also stating that  DONNELLEY probably
selected its headings for Miami from "looking at" the 1984 
Yellow Pages ).

     On appeal, DONNELLEY appears to concede that copyright
protection extends to a publisher's selection of which headings
to include in a particular classified directory, arguing instead
that it did not copy BAPCO's selection of classified headings. 
DONNELLEY asserts that its 1985 Miami North directory contains 
approximately 4,000 headings and that its 1985 Miami South
directory contains approximately 4,300 headings, as compared to
the 7,000 headings in BAPCO's 1984 Yellow Pages.  Even though
more relevant to the separate issue of substantial copying,
DONNELLEY'S assertion that it independently selected a
substantially smaller and distinct "universe" of classified
headings underscores the originality, and thus copyrightability
of BAPCO's selection of headings. [FN3] 

       B. Categorizing Businesses Under Classified Headings

     The originality of BAPCO's arrangement of business listings
under a particular classified heading is also clear under the
standard definition of "arrangement" in the copyright laws. 
"Arrangement' refers to the ordering or grouping of data into
lists or categories that go beyond the mere mechanical grouping
of data as such, for example, the alphabetical, chronological, or
sequential listings of data.'"  Key Publications, 945 F.2d at
513-14 (quoting  Copyright Office, Guidelines for Registration of
Fact-Based Compilations 1 (Rev. Oct. 11, 1989)).  In this case,
BAPCO presented the undisputed affidavit testimony of its General
Manager-Publishing, Bob Johnson, regarding BAPCO's  grouping of
listings under a particular classified heading.  See Exhibit A to 
DONNELLEY'S En Banc Brief (copy of Affidavit of Bob Johnson). 
Because most business subscribers offer multiple product lines,
goods, and services, Johnson testified that BAPCO sales
representatives were responsible for itemizing the products or
services of a business subscriber, determining the degree of
importance or profitability to the business, and recommending an 
appropriate classified heading for listing the business in the
1984 Yellow  Pages.  Johnson further testified that BAPCO
annually updates and publishes its heading book in order to
provide sales representatives with a quick-reference of the
approximately 34,000 authorized BAPCO "related headings" for
making recommendations to businesses about additional listings.

     Moreover, Johnson's statements about the skill and judgment
that BAPCO sales representatives exercise in recommending
appropriate related headings is supported in the statistics that
he provided about the 1984 Yellow Pages.  Johnson testified that
the resulting 1984 Yellow Pages included 56,459 free business
listings and 49,939 paid listings from a total of 32,559 local, 
foreign, and national business subscribers.  These statistics on
total listings and advertisers highlight the fundamental error in
the majority's conclusion that BAPCO's grouping of business
listings under classified headings is not an original act of
arrangement.  Using DONNELLEY'S figure of approximately 7,000 
classified headings in the 1984 Yellow Pages, it defies logic to
conclude that BAPCO's grouping of over 106,398 business listings
from 32,559 different businesses, under approximately 7,000
classified headings amounts to no more than mechanical grouping
of data.  The numbers alone indicate that BAPCO had numerous
options for grouping the 106,398 listings among the 7,000
classified  headings.

     Beyond statistics, however, BAPCO presented the district
court with conclusive evidence concerning the originality of its
groupings of business listings under classified headings.  BAPCO
attached to Johnson's affidavit a sample page from its heading
book, which includes the primary heading of "Bakers-Retail" and 
related headings including "Biscuits," "Cakes," "Pastries,"
"Bagels," "Candy &  Confectionery," "Caterers," "Cookies &
Crackers," "Delicatessens," "Donuts,"  "Food Products,"
"Foods-Carry Out," "Grocers-Retail," "Health & Diet Food 
Products-Retail," "Pies," "Pretzels," "Restaurants,"
"Sandwiches," "Snack  Products," "Wedding Supplies & Services." 
Although some primary entries on the sample page contain less
related headings than the "Bakers-Retail" example, other primary
headings contain more related heading options.  Hence, the 
"Bakers-Retail" example provides a representative illustration of
the wide- ranging choices that BAPCO sales representatives made
in categorizing the 32,559 businesses under the appropriate
related headings from the approximately 34,000 options in the
heading book.  With so many related headings to describe a
business principally known as a bakery, BAPCO's arrangement of
the listing of a particular bakery under one, two, three, four,
or more headings is neither "obvious" nor "practically
inevitable" as defined in FEIST.  See FEIST,  499 U.S. at ----,
111 S.Ct. at 1297, 113 L.Ed.2d at 380.  Accordingly, the 
evidence is clear that BAPCO's arrangement was in no sense
mechanical.  On the contrary, the 1984 Yellow Pages reflects
several layers of BAPCO choices on grouping 106,398 business
listings under approximately 7,000 classified headings, which
BAPCO selected from a heading book containing 4,700 primary 
entries and 34,000 related headings.  Accord Key Publications,
945 F.2d at  514 (holding that a classified publisher's grouping
of over 9,000 listings into approximately 260 different
categories constituted original arrangement  entitled to
copyright protection).

     DONNELLEY challenges BAPCO's evidence of an original
arrangement with repeated assertions that the businesses
themselves, not BAPCO, selected the appropriate classified
heading or headings with which to describe their businesses.  In
its reply brief to the panel, DONNELLEY conceded that if BAPCO 
supported its "belated allegation that BAPCO selects the
headings, there would result a material issue of fact, making
summary judgment improper on the issue of infringement." 
DONNELLEY Panel Reply Brief at p. 13.  The evidence before the
district court not only supports BAPCO's so-called "belated
allegation,"  but the only evidence presented to the district
court conclusively establishes that BAPCO makes the final
decisions on whether to list a business  under a particular
classified heading. [FN4]

     DONNELLEY does not point to any independent evidence that it
presented on the issue, but relies on testimony that it elicited
from BAPCO's General Manager-Directory, Gerald Brown, during the
October, 1985, preliminary injunction hearing.  Specifically,
DONNELLEY relies on Brown's statements that customers generally
select additional classified headings in the course of a sales 
presentation by a BAPCO employee, and his statement that the
owner of Havana Welding made the decision to be listed under ten
different headings, including  "Exporter," with the guidance of a
BAPCO sales person.  Based on Brown's testimony about a business
owner's role and the fact that business owners pay BAPCO for the
additional listings, DONNELLEY argues that "it defies logic to 
even suppose that [businesses] would leave to a directory
publisher any  discretion to decide what business they are in."

     DONNELLEY'S argument completely ignores the undisputed
evidence that BAPCO presented on the editorial role of its
Heading Committee in arranging business listings under a
particular classified heading. [FN5]  In addition to discussing
the role of a BAPCO sales representative in recommending related 
headings to businesses, Gerald Brown testified via deposition
that BAPCO's Heading Committee had the final responsibility for
deciding whether a requested classified heading was appropriate
for inclusion in the 1984 Yellow Pages.  Brown further testified
that a business's willingness to pay for a listing under a
particular classified heading did not influence the Heading
Committee's decision on whether to approve the proposed new
heading.  Moreover, during the October, 1985, preliminary
injunction hearing, Brown responded to questions about whether
BAPCO allowed businesses to make final decisions on a particular 
heading based on their willingness to pay for the advertisement. 
In response to a question on redirect, Brown testified that BAPCO
would not allow businesses to select classified headings under a
particular category that is totally incorrect, responding to the
extreme example of a butcher who asked to  be listed as a
plumber.  See 5SR2-4, p. 133.  On recross-examination, Brown 
responded to a more subtle example stating that BAPCO would allow
a butcher to be listed as a delicatessen only if the butcher was
in fact a delicatessen, regardless of the butcher's willingness
to pay for a full-page ad under the "Delicatessen" heading.  See
5SR2-4, pp. 133-34.  DONNELLEY fails to point to any evidence
contradicting Brown's testimony regarding the final editorial 
authority of the Heading Committee on whether a business would be
grouped under a particular classified heading.

     Therefore, the uncontroverted testimony in this case proves
that BAPCO performed an original act of arrangement in deciding
how to group appropriately the 106,398 business listings from
32,559 businesses, under the approximate 7,000 classified
headings in the 1984 Yellow Pages.

C. Selection of Only Businesses with Business Telephone Service  
     BAPCO's selection of only businesses with business telephone
service, as opposed to residential service, is also an act of
selection contributing to the originality of the 1984 Yellow
Pages.  As noted earlier, selection involves "the exercise of
judgment in choosing which facts from a given body of data to 
include in a compilation."  See Key Publications, 945 F.2d at
513.  BAPCO exercised such judgment in choosing only business
service subscribers from the body of data including both business
and residential subscribers for inclusion in the 1984 Yellow
Pages.  The originality is BAPCO's choice is amply  demonstrated
in the fact that DONNELLEY, unlike BAPCO, would accept listings 
and advertising from residential telephone service subscribers in 
addition to business telephone service subscribers.  For example,
the Assistant Vice-President and General Manager of the Southeast
Operation of DONNELLEY Information Publishing, Louis Sudholz,
testified about the disparate treatment of a hypothetical
prospective customer, "John, the painter."  Sudholz testified 
that DONNELLEY, unlike BAPCO, would include "John, the painter"
in its directory, regardless of DONNELLEY'S discovery that John
does not have a business telephone and operates out of a shed in
his backyard.  See 5SR2-4, pp.  194-95.  Based on the different
choices of two competing classified publishers, it is clear that
BAPCO's selection of only businesses with business telephone 
service represents an exercise of judgment that is in no sense
automatic or dictated by functional considerations.  Hence, the
record also supports the district court's holding that BAPCO's
selection of only business telephone subscribers for inclusion in
its 1984 Yellow Pages constitutes an original act of selection
contributing to the copyrightability of its compilation.   D.
Selection of a Geographic Area to be Covered Comprehensively  
Although a closer question, BAPCO's geographic scoping also
represents an original act of selection.  BAPCO asserts that its
selection of a geographic scope refers to a choice about what
geographic region would be covered comprehensively in the 1984
Yellow Pages.  BAPCO argues that its selection of a geographic
area is not determined simply based on the scope of a white-page 
directory for the same community, but is instead selected based
on BAPCO's evaluation of the shopping habits and desired shopping
areas of consumers within a white-pages community.  DONNELLEY
responds that geographic scoping merely refers to BAPCO's
decision about the geographic area for free distribution of
copies of its 1984 Yellow Pages.  DONNELLEY further asserts that
BAPCO did not, in fact, limit advertisements in its directory to 
businesses in a particular area.  Based on Bob Johnson's
affidavit testimony that the 1984 Yellow Pages contains
advertisements from 1,772 businesses in  nearby cities and from
2,215 national businesses, the evidence supports  DONNELLEY'S
assertion that BAPCO did not limit classified listings to only 
businesses in a certain geographic area.  Johnson's testimony
also demonstrates  that BAPCO solicited, not selected, the
advertisements from national businesses and businesses in nearby
cities.  However, the fact that BAPCO did not limit its 1984
Yellow Pages exclusively to greater Miami businesses does not
dispose of the issue, because BAPCO's claim of copyrightability
is based on its selection of an area, not individual businesses,
to be covered comprehensively, not exclusively.

     The evidence before the district court supports its
conclusion that geographic scoping is an original act of
selection.  Besides BAPCO's evidence, DONNELLEY presented
evidence on the uniqueness of its different scoping choice to
cover the greater Miami area in two North and South Miami
regions.  In addition, DONNELLEY elicited testimony from Louis
Sudholz on DONNELLEY'S decision to cover the geographic region
between Dallas and Fort Worth in a "Mid-City" directory.  Based
on such evidence of how classified publishers could easily select
geographic regions that do not strictly follow the boundaries of
cities, it is clear that the selection of a geographic region is 
not "practically inevitable."  See FEIST, 499 U.S. at ----, 111
S.Ct. at  1297, 113 L.Ed.2d at 380 (recognizing that the
alphabetizing of names in a white pages is an age-old practice
that is unoriginal and practically inevitable).

     The evidence before the district court also compels a
conclusion that the geographic scoping of a classified directory
is not an "obvious" act of  selection.  See FEIST, 499 U.S. at
----, 111 S.Ct. at 1297, 113 L.Ed.2d at  380 (describing a
white-page publisher's selection of basic information--name, 
town, and telephone number--as "obvious" and lacking sufficient
creativity to  make it original).  On this point, BAPCO presented
"DONNELLEY Directory  Publishing Start-Up Business Plan October
21, 1984," which discussed  DONNELLEY'S own geographic scoping
decisions as being based on "extensive  research [leading
DONNELLEY] to scope differently from its competitors."  See 
6SR12-34, Volume IV--Appendix to Summary Memorandum of BellSouth
Advertising &  Publishing Corporation, p. DM207045 (stating that
DONNELLEY generally will scope to cover areas of two or more
telco directories, and stating that  "more logical scoping is
intended to be a key selling point for [DONNELLEY]").  Therefore,
even though DONNELLEY now argues that geographic scoping
represents an obvious decision lacking a modicum of creativity,
the evidence before the  district court was uncontroverted that
geographic scoping results from thoughtful analysis of research
on shopping habits and analysis of how to distinguish one
directory from its competitors. [FN6]  Such thoughtful  selection
is sufficient under FEIST to contribute to the originality of the 
1984 Yellow Pages.  See FEIST, 499 U.S. at ----, 111 S.Ct. at
1294, 113  L.Ed.2d at 377 (explaining that "the originality
requirement is not particularly stringent").

     In sum, the record on this case demonstrates that BAPCO
performed at least four original acts of selection and
arrangement:  (1) the selection of 7,000 classified headings; 
(2) the arrangement of 106,398 business listings, from 32,559
businesses under the 7,000 classified headings;  (3) the
selection of only businesses with business telephone service, as
opposed to businesses having either business service or
residential service;  and (4) the selection  of a geographic area
to be covered comprehensively in the 1984 Yellow Pages. 
Accordingly, I would hold that BAPCO performed four acts of
selection or arrangement which are sufficiently original to merit
copyright protection.  The analysis of BAPCO's infringement
claim, however, does not end with a finding of originality.  This
court must next determine whether DONNELLEY copied those 
constituent elements of selection and arrangement which are
copyrightable.   

               III. Substantial Copying of BAPCO's
                Original Selection or Arrangement

     Because the copyright in a factual compilation is "thin," a
plaintiff must prove "substantial similarity" between the
defendant's compilation and the original elements of the
plaintiff's compilation.  Key Publications, 945  F.2d at 514
(adopting the "substantial similarity" test for infringement, and 
rejecting arguments that FEIST requires a subsequent compiler to
produce an "exact replica" of the copyrighted compilation);  see
also Majority Opinion at  n. 21 (citing favorably the Key
Publications test);  Southern Bell Tel. &  Tel. Co. v. Associated
Tel. Directory Publishers, 756 F.2d 801, 810-11 (11th  Cir.1985)
(applying the "substantially similarity" test).  Therefore, in
order for BAPCO to prevail on its infringement claim, it must
prove that DONNELLEY substantially appropriated the particular
elements of selection or arrangement that are original.  Based on
the previous discussion identifying those elements of selection
or arrangement that are copyrightable, BAPCO must prove that 
DONNELLEY substantially appropriated BAPCO's selection of
classified headings, arrangement of business listings under
classified headings, selection of only businesses with business
telephone service, or selection of a geographic area to be
covered comprehensively.

     A proper analysis of whether DONNELLEY substantially
appropriated BAPCO's original selection or arrangement requires
this court to analyze separately each of the three acts of
copying at issue in this case.  The district court concluded that
DONNELLEY engaged in the following three acts of copying:  (1) 
hiring Appalachian Computer Services, Inc. (Appalachian), a data
entry company in London, Kentucky, to key BAPCO's compilation
into a computer database;  (2) using the computer database to
print out sales lead sheets that represented a reproduction of
substantially the entire 1984 Yellow Pages in inverted or 
crisscross form; and (3) publishing the 1985 Miami North and 1985
Miami South directories based on the information copied into the
computer database and onto the sales lead sheets.  See BellSouth,
719 F.Supp. at 1558-59.  Similarly, this court should evaluate
each alleged act of copying separately.  [FN7]

                       A. Computer Database

     DONNELLEY does not dispute that it obtained copies of the
1984 Yellow Pages, separated and mounted each sheet individually,
and assigned a classified heading code, advertising code, and
directory code for every business listing.  It is also undisputed
that Appalachian keyed the following information into a computer
database:  name, address, telephone number, code corresponding to
a classified heading, code corresponding to the unit of
advertising, and a code for the directory from which the listing
came.  Appalachian stored this information on magnetic tape and
sent it to DONNELLEY for reproduction in the form of sales lead
sheets.  The only factual dispute concerning the creation of the
computer database derives from DONNELLEY'S assertion that
Appalachian entered a code corresponding to a previously chosen
DONNELLEY classified heading, as opposed to a code corresponding
to the BAPCO heading directly next to each code.

     The record support's DONNELLEY'S version of the alleged
factual dispute.  Several DONNELLEY employees testified that
Appalachian keyed-in heading codes that corresponded to headings
in a DONNELLEY heading book.  For example, Gary Johnson explained
that if we found a heading on our database that had a heading
code which was similar or the same meaning as the BAPCO heading,
we used our heading, the DONNELLEY support file heading.  We
didn't directly copy the heading from the BAPCO book.  We used
our heading.  This heading code is a DONNELLEY heading code that
applies to a support file, mechanized support file, that we
maintain in Terre Haute [, Indiana, a DONNELLEY Publishing
Center].  Deposition of Gary Johnson, at p. 143.  Johnson further
testified that he sent Appalachian a "DONNELLEY heading book" and
"asked Appalachian to use [the DONNELLEY heading book] and find
alike [sic] or similar, in our book to the BAPCO book." 
Deposition of Gary Johnson, at p. 254.  Johnson's testimony, 
along with that of other DONNELLEY employees, resolves the
alleged factual dispute and makes it clear that Appalachian keyed
a heading code that corresponded to a heading in the DONNELLEY
heading book.  But, the mere fact that Appalachian entered codes
that corresponded to a heading in DONNELLEY'S own heading book
does not resolve the issue.

     The relevant question is whether Appalachian entered codes
that corresponded to DONNELLEY'S previously selected menu of
headings for particular use in its Miami directories, not whether
Appalachian entered codes corresponding to a heading in a
DONNELLEY heading book that DONNELLEY uses for compiling 
directories generally.  As discussed earlier, the evidence is
undisputed that BAPCO selected approximately 7,000 classified
headings from those in its heading book containing 4,700 primary
entries and approximately 34,000 authorized related headings. 
Therefore, the originality of BAPCO's selection of headings is
based on its selection of approximately 7,000 headings for 
inclusion in the 1984 Yellow Pages, not the selection of the
nearly 40,000 authorized headings in the BAPCO heading book.  In
considering whether DONNELLEY copied BAPCO's selection of
headings from the 1984 Yellow Pages, Johnson's testimony makes it
apparent that DONNELLEY did not previously select headings from
its own heading book for inclusion in its 1985 Miami North and
1985 Miami South directories.  Instead, Johnson testified that 
DONNELLEY merely sent Appalachian its heading book so that
Appalachian could assign a code to each BAPCO heading that
corresponded to a like or similar heading in the DONNELLEY
heading book.

     Johnson's testimony is bolstered in the testimony of Jon
Notestein, who made the following statement in response to a
question about how DONNELLEY selected classified headings that
reflected needs of the market and users in Miami:  "They were
probably created by looking at the directories representing
Miami,  [the BAPCO directory]."  See Deposition of Jon C.
Notestein, pp. 50-52;  see also DONNELLEY En Banc Reply Brief, p.
19 n. 14 (conceding that Notestein testified that DONNELLEY used
the 1984 Yellow Pages in order to refine its preexisting set of
headings for use in Florida).

     Therefore, even resolving the alleged factual dispute
regarding Appalachian's coding of headings in favor of
DONNELLEY'S version, Johnson's and Notestein's testimony makes it
clear that DONNELLEY did not previously select a universe of
headings for particular use in its Miami directories.  Instead, 
DONNELLEY copied BAPCO's selection of headings with what can only
be described as a high-tech copying process.  DONNELLEY'S
high-tech copying involved Appalachian keying codes rather than
the words of BAPCO headings into a database, from which the
wording of the BAPCO headings could be reconstructed later using
the DONNELLEY heading book as a decoder.

     Besides the evidence showing that DONNELLEY substantially
appropriated BAPCO's selection of headings, DONNELLEY'S
stipulation regarding what information Appalachian keyed into the
computer database leaves no factual dispute that DONNELLEY also
substantially appropriated BAPCO's other original acts of 
selection and arrangement.  As previously discussed, BAPCO's
original acts of selection or arrangement included the selection
of approximately 7,000 headings for particular use in the 1984
Yellow Pages; the arrangement of 106,398 listings from 32,559
businesses under the approximately 7,000 classified headings; 
the selection of only businesses with business telephone service; 
and the selection of a geographic area to be covered
comprehensively in the directory.  It is undisputed that
Appalachian keyed into the computer database every business
listing with a corresponding heading code and a code indicating 
the directory source for every listing in the 1984 Yellow Pages.  
Although the keying of each code in isolation would amount to the
lawful copying of facts, Appalachian's grouping of the business
listing with an associated heading code and a directory code
amounts to the appropriation of virtually all of BAPCO's original
acts of selection and arrangement.  That is, DONNELLEY copied
BAPCO's selection of headings based on Appalachian's keying of a
heading code, even if it corresponded to headings in DONNELLEY'S
own heading book, for virtually every heading used in the 1984
Yellow Pages.  DONNELLEY copied BAPCO's arrangement of business
listings under a particular classified heading based on
Appalachian's grouping of the business listing data with a 
heading code that corresponded to a heading like or similar to
BAPCO's.  DONNELLEY copied BAPCO's selection of only businesses
with business telephone service based on Appalachian's keying of
every business listed in the 1984 Yellow Pages.  In addition,
DONNELLEY copied BAPCO's selection of a geographic area based on
Appalachian's grouping of the business listing data and the code 
indicating the directory source.

     Because the keyed information was stored in or on some
material object until later printed on the sales lead sheets,
DONNELLEY'S creation of the computer database represents an act
of "copying" as defined in the Copyright Act.  See  17 U.S.C. s
101 (defining a copy as a material object "in which a work is 
fixed by any method now known or later developed, and from which
the work can  be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or
device").  Accordingly, I would hold that DONNELLEY'S 
substantial appropriation of BAPCO's original acts of selection
or arrangement in creating the computer database, represented an
act of copyright  infringement.

                       B. Sales Lead Sheets

     DONNELLEY'S substantial appropriation of BAPCO's original
act of selection or arrangement is also apparent in the printed
sales lead sheets.  As discussed previously, DONNELLEY stipulated
in the district court that it prepared the sales lead sheets from
the following information obtained from the 1984 Yellow Pages: 
(1) telephone number--under the first column;  (2) name--  under
the second column;  (3) address--under the third column;  (4)
kind of business--under the fourth column;  and (5) unit of
advertising--under the fifth column.  A visual examination of the
printed sales lead sheets shows that the sales lead sheets also
contain rate information under the sixth column and a directory
code under the seventh column.  Because it is uncontroverted that 
the sales lead sheets represented merely a printed version of the
same information that Appalachian keyed into the computer
database, the previous analysis of how DONNELLEY substantially
appropriated BAPCO's original selection or arrangement in
creating the database applies equally to its printing of the 
sales lead sheets.  Hence, I would also hold that DONNELLEY'S
printing sales lead sheets using the information already copied
into the computer database, represented a second act of copyright
infringement.

     Even though a discussion of the sales lead sheets
necessarily turns on analysis of the information keyed into the
computer database, the printed sales lead sheets have independent
significance because the sales lead sheets, not the actual
directories, constituted the chief visual evidence of copying in
the district court.  In the district court, DONNELLEY stipulated
that the seven lead sheets attached to BAPCO's motion for
preliminary injunction were representative of all the thousands
of sales lead sheets that DONNELLEY  created.  DONNELLEY now
attempts to retreat from its concession concerning the 
representativeness of the sales lead sheets and to retry this
case based on a visual comparison of the 1984 Yellow Pages and
the 1985 Miami North and 1985 Miami South directories.  In its En
Banc Reply Brief, DONNELLEY responds to BAPCO's assertions of
substantial similarity based on the seven lead sheets with the
following argument:  "BAPCO bases this assertion entirely on a
chart drawn from just seven of the thousands of lead sheets
produced by DONNELLEY for  Miami.  However, BAPCO's chart
'conclusively demonstrates' only that a small sample can produce
a misleading result."  See DONNELLEY En Banc Reply Brief, p. 22
(citations omitted).  DONNELLEY continues its response with its
newly created chart comparing the headings in the 1984 Yellow
Pages and those used in the 1985 Miami North and 1985 Miami South
directories.

     DONNELLEY'S arguments are fatally flawed in that they rely
on a visual comparison of the actual directories, which DONNELLEY
admits that it only recently, on January 27, 1993, moved for
leave to place physical copies of the three directories in the
record on appeal.  See DONNELLEY En Banc Reply Brief,  p. 22 n.
16.  Likewise, DONNELLEY failed to present the chart comparing
the headings in the three directories to the district court,
attaching it for the first time as an appendix in its En Banc
Reply Brief.  See DONNELLEY En Banc  Reply Brief, p. 22 n. 17
(explaining the results of its new analysis as indicated in
Appendix A of the En Banc Reply Brief). [FN8] 
     This court generally bases a reversal of a district court on
evidence that the district court considered.  The majority's
outright reversal of the district court based upon its original
'findings' from a visual comparison of selected pages from the
published directories, places this court in the novel position of
retrying this case rather than reviewing it.  Because DONNELLEY'S
own stipulation as to the representativeness of the sales lead    
sheets led the district court to reach what DONNELLEY now calls a 
"misleading result," this court must affirm the district court's
conclusion on the substantial similarity issue.  At a minimum,
this court is required to remand to the district court for
consideration of DONNELLEY'S new theory of the case which hinges
on a comparative analysis of pages from the published
directories.

     Unlike DONNELLEY, BAPCO did present the district court witha comparative analysis of the seven lead sheets showing the
virtual identity between BAPCO headings and DONNELLEY headings. 
BAPCO presented the affidavit testimony of Barbara Wiggs, who
explained her findings on the similarities between information on
the sales lead sheets and that in the 1984 Yellow  Pages.  Based
on line-by-line comparisons of the sales lead sheets to the 1984 
Yellow Pages, Wiggs concluded that "the listing information on
the attached DONNELLEY Sales Lead sheets were identical to the
1984 Yellow Pages directories, except for a small number of very
minor discrepancies."  See  6SR10-17, pp. 11-12, Affidavit of
Barbara J. Wiggs, in Volume 1--Appendix to Summary Memorandum of
Bellsouth Advertising & Publishing Corporation.  Specifically,
Wiggs listed her findings of complete identity except for the 
following entries:  (1) Evian associated with the heading "Water
Coolers"  instead of "Water Coolers-Renting";  (2) Star
Appliances being associated with  the heading "Air
Conditioning-Room Units" instead of "Air Conditioning 
Equipment--Room Units";  (3) Star Appliances being associated
with the heading  "Television Dealers--Retail" instead of
"Television & Radio--Dealers";  (4)  Star Appliances being
associated with the heading "Vacuum Cleaners--SYSTEM 
Household--Dealers" instead of "Vacuum
Cleaners--Household--Dealers";  (5) Star  Appliances being
associated with the heading "Vacuum Cleaners--S Household-- 
Dealers" instead of "Vacuum Cleaners--Household--Dealers";  and
(6) Audiotron-  High Fidelity Corp. being associated with the
address of "145 S.W. 52nd Avenue"  instead of "145-147 S.W. 52nd
Avenue Second Floor."  Wiggs's conclusion that  the discrepancies
were "minor" is entirely reasonable in light of the fact that 
the seven lead sheets contain information concerning seven
different  businesses, appearing under forty different headings
in the 1984 Yellow Pages, for a total of sixty-eight listings,
averaging five different headings and ten listings.  It is also
significant to note that the headings on the lead sheets ranged
from "Gas--Industrial & Medical Cylinder & Bulk" to "Antiques-- 
Repairing & Restoring."  The identity between the headings on the
lead sheets and those in the 1984 Yellow Pages included even the
hyphens and the ampersands.

     Based on DONNELLEY'S stipulation that the seven sales lead
sheets were representative and Wiggs's testimony on the virtual
identity between the headings and other information on the sales
lead sheets and that in the 1984 Yellow Pages, the chief visual
evidence in the district court conclusively shows that
DONNELLEY'S printing of the sales lead sheets represented a
second act of substantial appropriation of BAPCO's original acts
of selection or  arrangement.

                   C. The DONNELLEY Directories

     As previously discussed, only a small portion of the
arguments and evidence before the district court related to a
visual comparison of published copies of the actual directories. 
In its opinion, the district court references a comparison of the
directories only three times.  The first reference is the 
district court's statement that "a comparison of the two (2)
directories reveal that DONNELLEY used a format nearly identical
to that used by BAPCO.  See Exhibit P and P Enlarged to BAPCO's
Brief."  See BellSouth, 719 F.Supp. at  1559.  In their February,
1993, letters to the clerk of this court regarding requests for
certain portions of the record, both parties agreed that the 
district court did not refer to the BAPCO and DONNELLEY
directories when referencing Exhibit P and P Enlarged.
     In fact, Exhibit P and P Enlarged are copies of a sales 
solicitation form of Associated Telephone Directory Publishers
that this court reproduced as Appendix A in Southern Bell Tel. &
Tel. v. Associated Tel. Directory Publishers, 756 F.2d 801,
813-14 (11th Cir.1985).  DONNELLEY stated in its February 22,
1993, letter to the clerk that "Exhibits P and P enlarged do not
involve any yellow pages directory at issue in the present
appeal" and that the district court cited the exhibits
erroneously.  BAPCO responded that the district court correctly
referred to the exhibits from the Southern Bell opinion, but only
for the limited purposes of showing what the Southern Bell court
considered to be a copyrightable format, and showing that
DONNELLEY'S format as evidenced in the sales lead sheets was
nearly identical to that of BAPCO.  Regardless of why the
district court referenced Exhibits P and P Enlarged, the fact
that the parties agree that the district court was not 
referencing pages from the BAPCO or DONNELLEY directories makes
it uncontroverted that the district court was not stating that it
performed page-by-page visual comparison of the 1984 Yellow Pages
and the DONNELLEY  directories.

     The second suggestion that the district court visually
compared the disputed directories, is the district court's
discussion of the evidence of "common errors."  See BellSouth,
719 F.Supp. at 1559 & n. 23.  But, in discussing the common
errors in the three directories, the district court referenced
pages from the directories that BAPCO attached to the Second
Affidavit of Barbara J. Wiggs.  See BellSouth, 719 F.Supp. at
1559 n. 23.  The district court did not cite pages in complete
published copies of the directories.  Similarly, in concluding
that the directories are substantially similar, the district
court cites the Barbara Wiggs affidavit and Gerald Brown
testimony rather than pages from the published directories.  See
BellSouth, 719 F.Supp. at 1559-60.   Therefore, none of the
references in the district court's opinion provide a basis for
this court to engage in side-by-side comparisons of all pages in
the 1984 Yellow Pages with those in the 1985 Miami North and 1985
Miami South directories.  It is only possible to conclude that
the district court examined the pages of the directories that
BAPCO attached to the Second Affidavit of Barbara J. Wiggs. 
Because DONNELLEY failed to present its own comparative analysis
of pages from the actual directories and also failed to place
physical copies of the directories in the record until January,
1993, this court is required to limit its determination on the
substantial similarity of the directories to those pages attached
to the Second Affidavit of Barbara J.  Wiggs, and only to the
extent of Wiggs's comparative analysis.   The district court
relied on Wiggs's analysis of pages from the directories as
support for the following conclusion:  "Although DONNELLEY'S 
directory is not identical to BAPCO's directory, the material was
copied and used to produce a directory substantially similar in
both content and format."  See BellSouth, 719 F.Supp. at 1559-60
(citing Affidavit of Barbara Wiggs and October, 1985, testimony
of Gerald Brown).  In her affidavit, Wiggs identified 
twenty-five errors that were common to both the 1984 Yellow Pages
and the DONNELLEY directories.  See 6SR11-18, Second Affidavit of
Barbara J. Wiggs, pp.  2-19.  For example, Wiggs explained that
BAPCO incorrectly listed Fort Lauderdale News under the heading
"Balancing Equipment" in the 1984 Yellow Pages, and that
DONNELLEY'S 1985 Miami North directory also lists Fort 
Lauderdale News under a "Balancing Equipment" heading.  See
BellSouth, 719  F.Supp. at 1559 n. 23 (also noting the example of
the common erroneous listing of "Flash Courier Systems" even
though the subscriber's telephone was  disconnected before
January 1, 1984).

     The presence of common errors is "one of the most
significant evidences of infringement."  Callaghan v. Myers, 128
U.S. 617, 662, 9 S.Ct. 177, 190, 32  L.Ed. 547 (1888).  Based on
the earlier conclusions that the 1984 Yellow Pages constitutes an
original selection and arrangement of facts that is 
copyrightable, Wiggs's testimony regarding the presence of common
errors is relevant to rebut DONNELLEY'S repeated assertions that
it used the 1984 Yellow  Pages "only to ascertain the fact
revealed by BAPCO's heading--the kind of business carried on by
the listed firm--so as to enable DONNELLEY to classify that firm
in its own system of classification."  See DONNELLEY En Banc 
Reply Brief at p. 20;  see also, DONNELLEY En Banc Brief at p.
12.  DONNELLEY'S assertions that it independently classified
businesses using its own heading scheme is wholly unbelievable
when one considers the statistical improbability of two
publishers independently classifying the same newspaper as a
"Balancing  Equipment" dealer.  Therefore, the presence of the
common errors in the published directories is significant
evidence that DONNELLEY substantially  appropriated BAPCO's
original arrangement of business listings under particular 
classified headings.

     As further evidence of DONNELLEY'S substantial appropriation
of BAPCO's grouping of listings under particular headings,
Wiggs's affidavit included a heading comparison based on a random
selection of DONNELLEY headings and a comparison of the listings
appearing under those headings with the listings appearing under
the corresponding headings in the 1984 Yellow Pages.  BAPCO 
presented the district court with the following chart summarizing
Wiggs's findings regarding the percentage of correlation between
the listings under particular headings in the DONNELLEY
directories and those in the 1984 Yellow  Pages:

              Heading               North Miami  South Miami 
---------------------------------  ------------------------    
 "Bail Bonds"                           68%          55%
 "Boxes, Corrugated & Fiber"            86%         100%
 "Ceilings"                             64%          50%
 "Driving Instruction"                  72%          73%
 "Engineers--Civil"                     88%          86%
 "Furniture--Outdoors"                  63%          70%
 "Gold, Silver & Platinum Dealers"      95%          85%

                                   ----------
See 6SR5-3 Reply to DONNELLEY'S Memorandum in Opposition to
Motion for Partial Summary Judgment on Copyright Infringement by
Bellsouth Advertising & Publishing Corporation and Memorandum in
Opposition to DONNELLEY'S Copyright Partial Summary Judgment
Motion, p. 40 (March 6, 1986).

     As the chart indicates, Wiggs found a high (averaging
seventy-five percent) statistical correlation of listings under
particular headings when comparing the 1984 Yellow Pages with the
DONNELLEY directories.  DONNELLEY did not respond with its own
correlation analysis, and thus, Wiggs's findings represent 
further undisputed evidence that DONNELLEY'S published
directories contain a substantially similar arrangement of
business listings under particular classified headings.  Accord
see Key Publications, 945 F.2d at 515, 517  (finding no
substantial similarity based on the lack of any evidence that the 
defendant copied an entire category of the plaintiff's directory,
but explaining that a finding of infringement would succeed if
the defendant had exactly duplicated a substantial designated
portion of the plaintiff's directory such as all of the listings
of professionals such as medical doctors, lawyers, accountants,
engineers, and architects).

     To the extent that Wiggs's analysis of the directories was
misleading, it is an elementary rule on summary judgment that the
burden shifted to DONNELLEY to produce its own comparative
analysis of the published directories in order to rebut the
undisputed evidence of substantial similarity in Wiggs's
affidavit.  See United States v. Four Parcels of Real Property,
941 F.2d 1428, 1438  (11th Cir.1991) (recognizing that the burden
on summary judgment shifts to the non-moving party once the
moving party has met its initial responsibility of showing the
absence of a triable issue of fact, and that the moving party is 
entitled to summary judgment if the non-moving party fails to
make a sufficient showing on an essential element of the case); 
Fed.R.Civ.P. 56(e).  As a non-moving party opposing a motion for
summary judgment which BAPCO supported with  affidavits,
DONNELLEY could not simply rely on legal conclusions or evidence
which would be inadmissible at trial in order to meet its burden
of coming forward with relevant and competent evidence.  See
Avirgan v. Hull,  932 F.2d 1572, 1577 (11th Cir.1991).
 
     In the district court, DONNELLEY failed to respond to the
evidence in Wiggs's affidavit showing substantial similarity in
the arrangement of listings under headings in the published
directories.  Contrary to DONNELLEY'S assertions to the en banc
court, DONNELLEY also failed to present evidence to the district 
court that the selection of headings in its published directories
was substantially smaller and different from those in the 1984
Yellow Pages.  Compare DONNELLEY En Banc Brief at p. 12 and BAPCO
En Banc Brief at p. 3  (attaching as "Exhibit 2" those portions
of the record that DONNELLEY cites).  Instead of responding to
BAPCO's evidence in the district court, DONNELLEY  waited until
January, 1993, before moving to place the published directories
in the record.  See DONNELLEY En Banc Reply Brief p. 22 n. 16. 
DONNELLEY also waited until its En Banc Reply Brief before
presenting a comparative analysis of the heading structure in the
published directories.  See DONNELLEY En Banc Reply Brief, pp.
22-23 & n. 17.  Stated simply, DONNELLEY waited too late to meet
its burden of presenting competent evidence to oppose BAPCO's
motion for summary judgment.  Because Wiggs's affidavit
represented the only evidence before the district court
concerning the substantial similarity of the published
directories, I would affirm the district court's conclusion that 
DONNELLEY substantially appropriated BAPCO's original acts of
selection and arrangement when publishing the 1985 Miami North
and 1985 Miami South  directories. [FN9]

     In sum, the uncontroverted evidence before the district
court shows that DONNELLEY substantially appropriated BAPCO's
original selection and arrangement in the 1984 Yellow Pages with
three separate acts of copying: (1) keying-in that selection and
arrangement into the computer database; (2  printing the sales
lead sheets from the data in the computer database; and (3) using
the computer database and the sales lead sheets to publish the
DONNELLEY directories with a substantially similar selection of
headings and substantially similar arrangement or grouping of
listings under particular headings.  Accordingly, I would affirm
the judgment of the district court granting summary judgment in
favor of BAPCO on all three claims that DONNELLEY  infringed its
compilation copyright in the 1984 Yellow Pages. [FN10] 

     Because the majority reaches the opposite result based on an
utter failure to analyze the evidence presented to the district
court under the controlling legal principles announced in FEIST,
and also based on an unwarranted departure from well-established
rules limiting this court's review to arguments and evidence
presented in the district court, I must respectfully DISSENT.


                   DISSENTING OPINION FOOTNOTES

      FN1. During the discussion of the evidence presented to the
district court, I will also discuss the evidence presented and
the new theories advanced at the "en banc trial."

      FN2. In reasoning that BAPCO's selection of headings lack
originality because many resemble NYPSA headings, the majority
completely ignores the FEIST Court's holding that an independent
selection of data need not be "novel" in order to be deemed
original.  See Majority op. at p. 1443. 

      FN3. In reaching its over-broad conclusion that none of
BAPCO's selection, coordination, or arrangement is copyrightable,
the majority merges the issues of originality and substantial
copying.  In doing so, the majority allows DONNELLEY to defeat
BAPCO's claim of original selection, the first issue before this
court, based on new evidence presented for the first time on
appeal that relates mainly to the second, substantial similarity
issue.   Regarding the substantial similarity issue, the majority
concludes that DONNELLEY presented evidence showing that it
"established its own system of headings."  The majority relies on
citations to the record that DONNELLEY uses in support of its new
assertion that it selected "a smaller universe"  of classified
headings.  See Majority op. at 1443.  The majority's reliance     
on these citations is misplaced for two reasons.  First, as BAPCO
argues, none of DONNELLEY'S citations actually support the
"smaller universe" assertion.  See BAPCO En Banc Brief at p. 3
(compiling all portions of the record that DONNELLEY cites as
"Exhibit 2").  Moreover, as discussed fully in section III-A, the
relevant question is whether DONNELLEY proved that it selected a
menu of classified headings for particular use in compiling its   
South Florida directories, not whether DONNELLEY entered codes    
corresponding to a general universe of headings in the DONNELLEY
heading book.

      FN4. The majority summarily concludes that "it is the
subscriber who selects" a particular classified heading without
any discussion of BAPCO's evidence on this issue.  See Majority
op. at p. 1443. 

      FN5. The majority blindly accepts DONNELLEY'S argument that
BAPCO surrenders ultimate editorial authority to advertisers
without any consideration of BAPCO's obvious need to maintain
final editorial discretion in order to protect the integrity and
accuracy of its compilation.

      FN6. The majority reaches the conclusion that geographic
scoping is an obvious and inevitable act of selection based on
cursory analysis that analogizes the geographic scoping involved
in classified directories to the scoping of white pages. 
However, as the majority points out, this case concerns a
"directory of a different color."  That distinction requires     
this court to thoroughly analyze the evidence under the FEIST     
principles.  Instead of such analysis, the majority's holding
appears to be based on the mistaken notion that deciding
copyright cases requires no more than an application of the
collective common sense of judges. 

      FN7. The majority not only merges its analysis of the
originality and the substantial similarity issues, as previously
noted, the majority also intertwines its slight discussion of
DONNELLEY'S first two alleged acts of copying, the computer
database and sales lead sheets, with its exhaustive discussion of
the lack of similarity between the actual published directories. 
The majority's focus on the distinguishable features of
DONNELLEY'S published directories, with only slight mention of
the computer database and sales lead sheets, is not consistent
with the development of facts in this case.  That is, DONNELLEY'S
alleged copying of BAPCO's compilation into the computer database
and onto the sales lead sheets occurred before BAPCO filed this
action putting DONNELLEY on notice.  DONNELLEY'S actual
publication of the 1985 Miami North and 1985 Miami South     
Directories occurred after BAPCO filed this action and after the
district court denied BAPCO's motion for a preliminary
injunction.  Hence, it is not at all surprising that DONNELLEY'S
published directories contain a number of distinguishable
features.

      FN8. Contrary to settled principles of finality, the
majority permits DONNELLEY to back away from its stipulation in
the district court regarding the representativeness of the seven
lead sheets.  Instead of considering the seven sales lead sheets
and analysis of them as presented to the district court, the
majority relies heavily on a visual comparison of selected pages
from the three published directories.  Indeed, it is unusual     
that this copyright case proceeded from October, 1985, to
October, 1988, in the district court without the parties
submitting complete physical copies of the disputed publications. 
But, it was this court, not the district court, that admitted the
directories into the record in response to the parties' joint
motion of January, 1993.  The majority properly, albeit     
implicitly, declines DONNELLEY'S request that this en banc court
to engage in a side-by-side visual comparison of all pages in
three published directories.  See DONNELLEY En Ban Reply Brief,
p. 22 nn. 16 & 17.  However, the majority's visual comparison of
selected pages from the directories is equally unfounded.  As
discussed fully in section III-C, the record before the district
court consisted of a total of approximately forty pages from the
published directories.  Nothing in the district court opinion
indicates that the district court actually made a side-by-side  
visual comparison of those pages except possibly to verify the
conclusions in the Affidavit of Barbara J. Wiggs.

      FN9. Incredibly, the majority ignores the fact that
DONNELLEY failed to meet its burden of coming forward with
relevant and competent evidence to rebut BAPCO's affidavit
evidence.  In doing so, the majority departs from  the settled
rule that a non-moving party may lose at the summary judgment     
stage based on its failure to come forward with competent
evidence showing a genuine issue of material fact.  See Four
Parcels, 941 F.2d at 1438.  As a replacement for the established
rules concerning summary judgment, the majority's reliance on its
original fact-finding in a visual comparison of pages from the
published directories, establishes a new and absurd rule that a
non-moving party failing to meet its burden in the district court 
may nonetheless win outright judgment with evidence considered
for the first time on appeal.

      FN10. In addition, for the reasons stated in the now
vacated panel opinion, Bellsouth, 933 F.2d at 960-61, I would
affirm the district court's rejection of DONNELLEY'S "fair use"
and "antitrust misuse" defenses.