FEIST PUBLICATIONS, INC., Petitioner
v.
RURAL TELEPHONE SERVICE COMPANY, INC.
Argued Jan. 9, 1991.
Decided March 27, 1991.
CASE SYLLABUS
(The syllabus is not a of the opinion of the Court but has been prepared by the
Reporter of Decisions for the convenience of the reader)
Respondent Rural Telephone Service Company, Inc., is a certified public
utility providing telephone service to several communities in Kansas. Pursuant
to state regulation, Rural publishes a typical telephone directory, consisting
of white pages and yellow pages. It obtains data for the directory from
subscribers, who must provide their names and addresses to obtain
telephone service. Petitioner Feist Publications, Inc., is a
publishing company that specializes in area-wide telephone directories covering
a much larger geographic range than directories such as Rural's. When Rural
refused to license its white pages listings to Feist for a directory covering
11 different telephone service areas, Feist extracted the listings it needed
from Rural's directory without Rural's consent. Although Feist altered many of
Rural's listings, several were identical to listings in Rural's white pages.
The District Court granted summary judgment to Rural in its copyright
infringement suit, holding that telephone directories are copyrightable. The
Court of Appeals affirmed.
Held: Rural's white pages are not entitled to copyright, and therefore
Feist's use of them does not constitute infringement. Pp. 1287-1297.
(a) Article I, s 8, cl. 8, of the Constitution mandates originality as a
prerequisite for copyright protection. The constitutional requirement
necessitates independent creation plus a modicum of creativity. Since facts do
not owe their origin to an act of authorship, they are not original and, thus,
are not copyrightable. Although a compilation of facts may possess the
requisite originality because the author typically chooses which facts to
include, in what order to place them, and how to arrange the data so that
readers may use them effectively, copyright protection extends only to those
components of the work that are original to the author, not to the facts
themselves. This fact/expression dichotomy severely limits the scope of
protection in fact-based works. Pp. 1287-1290.
(b) The Copyright Act of 1976 and its predecessor, the Copyright Act of 1909,
leave no doubt that originality is the touchstone of copyright protection in
directories and other fact-based works. The 1976 Act explains that copyright
extends to "original works of authorship," 17 U.S.C. s 102(a), and that
there can be no copyright in facts, s 102(b). A compilation is not
copyrightable per se, but is copyrightable only if its facts have been
"selected, coordinated, or arranged in such a way that the resulting work as a whole
constitutes an original work of authorship." s 101. Thus, the statute envisions that
some ways of selecting, coordinating, and arranging data are not sufficiently original
to trigger copyright protection. Even a compilation that is copyrightable receives only
limited protection, for the copyright does not extend to facts contained in the
compilation. s 103(b). Lower courts that adopted a "sweat of the brow" or
"industrious collection" test--which extended a compilation's copyright protection
beyond selection and arrangement to the facts themselves--misconstrued the 1909
Act and eschewed the fundamental axiom of copyright law that no one may copyright
facts or ideas. Pp. 1290-1295.
(c) Rural's white pages do not meet the constitutional or statutory
requirements for copyright protection. While Rural has a valid copyright in
the directory as a whole because it contains some forward text and some
original material in the yellow pages, there is nothing original in Rural's
white pages. The raw data are uncopyrightable facts, and the way in which
Rural selected, coordinated, and arranged those facts is not original in any
way. Rural's selection of listings--subscribers' names, towns, and telephone
numbers--could not be more obvious and lacks the modicum of creativity
necessary to transform mere selection into copyrightable expression. In fact,
it is plausible to conclude that Rural did not truly "select" to publish its
subscribers' names and telephone numbers, since it was required to do so by
state law. Moreover, 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. Pp. 1295-1297.
> 916 F.2d 718 (CA 10 1990), reversed.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
THE OPINION OF THE COURT
O'CONNOR J., delivered the opinion of the Court, in which REHNQUIST,
C.J., and WHITE, MARSHALL, STEVENS, SCALIA, KENNEDY, and SOUTER, JJ.,
joined. BLACKMUN, J., concurred in the judgment.
Kyler Knobbe, Cimarron, Kan., for petitioner.
James M. Caplinger, Jr., Topeka, Kan., for respondent.
Justice O'CONNOR delivered the opinion of the Court.
This case requires us to clarify the extent of copyright protection available
to telephone directory white pages.
I.
Rural Telephone Service Company, Inc., is a certified public utility that
provides telephone service to several communities in northwest Kansas. It is
subject to a state regulation that requires all telephone companies operating
in Kansas to issue annually an updated telephone directory. Accordingly, as a
condition of its monopoly franchise, Rural publishes a typical telephone
directory, consisting of white pages and yellow pages. The white pages list in
alphabetical order the names of Rural's subscribers, together with their towns
and telephone numbers. The yellow pages list Rural's business subscribers
alphabetically by category and feature classified advertisements of various
sizes. Rural distributes its directory free of charge to its subscribers, but
earns revenue by selling yellow pages advertisements.
Feist Publications, Inc., is a publishing company that specializes in area-
wide telephone directories. Unlike a typical directory, which covers
only a particular calling area, Feist's area-wide directories cover a much
larger geographical range, reducing the need to call directory assistance or
consult multiple directories. The Feist directory that is the subject of this
litigation covers 11 different telephone service areas in 15 counties and
contains 46,878 white pages listings--compared to Rural's approximately 7,700
listings. Like Rural's directory, Feist's is distributed free of charge and
includes both white pages and yellow pages. Feist and Rural compete vigorously
for yellow pages advertising.
As the sole provider of telephone service in its service area, Rural
obtains subscriber information quite easily. Persons desiring telephone
service must apply to Rural and provide their names and addresses; Rural then
assigns them a telephone number. Feist is not a telephone company, let alone
one with monopoly status, and therefore lacks independent access to any
subscriber information. To obtain white pages listings for its area-wide
directory, Feist approached each of the 11 telephone companies operating in
northwest Kansas and offered to pay for the right to use its white pages
listings.
Of the 11 telephone companies, only Rural refused to license its listings to
Feist. Rural's refusal created a problem for Feist, as omitting these listings
would have left a gaping hole in its area-wide directory, rendering it less
attractive to potential yellow pages advertisers. In a decision subsequent to
that which we review here, the District Court determined that this was
precisely the reason Rural refused to license its listings. The refusal was
motivated by an unlawful purpose "to extend its monopoly in telephone service
to a monopoly in yellow pages advertising." Rural Telephone Service Co. v.
Feist Publications, Inc., 737 F.Supp. 610, 622 (Kan.1990).
Unable to license Rural's white pages listings, Feist used them without
Rural's consent. Feist began by removing several thousand listings that fell
outside the geographic range of its area-wide directory, then hired personnel
to investigate the 4,935 that remained. These employees verified the
data reported by Rural and sought to obtain additional information. As a
result, a typical Feist listing includes the individual's street address; most
of Rural's listings do not. Notwithstanding these additions, however,
1,309 of the 46,878 listings in Feist's 1983 directory were identical to
listings in Rural's 1982-1983 white pages. App. 54 (P 15-16), 57. Four of
these were fictitious listings that Rural had inserted into its directory to
detect copying.
Rural sued for copyright infringement in the District Court for the District
of Kansas taking the position that Feist, in compiling its own directory, could
not use the information contained in Rural's white pages. Rural asserted that
Feist's employees were obliged to travel door-to-door or conduct a telephone
survey to discover the same information for themselves. Feist responded that
such efforts were economically impractical and, in any event, unnecessary
because the information copied was beyond the scope of copyright protection.
The District Court granted summary judgment to Rural, explaining that "[c]ourts
have consistently held that telephone directories are copyrightable" and citing
a string of lower court decisions. 663 F.Supp. 214, 218 (1987). In an
unpublished opinion, the Court of Appeals for the Tenth Circuit affirmed "for
substantially the reasons given by the district court." App. to Pet. for Cert.
4a, judgt. order reported at 916 F.2d 718 (1990). We granted certiorari,
498 U.S. 808, 111 S.Ct. 40, 112 L.Ed.2d 17 (1990), to determine whether the
copyright in Rural's directory protects the names, towns, and telephone numbers
copied by Feist.
II.
A.
This case concerns the interaction of two well-established
propositions. The first is that facts are not copyrightable; the other, that
compilations of facts generally are. Each of these propositions possesses an
impeccable pedigree. That there can be no valid copyright in facts is
universally understood. The most fundamental axiom of copyright law is
that "[n]o author may copyright his ideas or the facts he narrates."
Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556,
105 S.Ct. 2218, 2228, 85 L.Ed.2d 588 (1985). Rural wisely concedes this point,
noting in its brief that "[f]acts and discoveries, of course, are not
themselves subject to copyright protection." Brief for Respondent 24. At the
same time, however, it is beyond dispute that compilations of facts are within
the subject matter of copyright. Compilations were expressly mentioned in the
Copyright Act of 1909, and again in the Copyright Act of 1976.
There is an undeniable tension between these two propositions. Many
compilations consist of nothing but raw data--i.e., wholly factual information
not accompanied by any original written expression. On what basis may one
claim a copyright in such a work? Common sense tells us that 100
uncopyrightable facts do not magically change their status when gathered
together in one place. Yet copyright law seems to contemplate that
compilations that consist exclusively of facts are potentially within its
scope.
The key to resolving the tension lies in understanding why facts are
not copyrightable. The sine qua non of copyright is originality. To qualify
for copyright protection, a work must be original to the author. See:
Harper & Row, supra, at 547-549, 105 S.Ct., at 2223-2224. Original, as the
term is used in copyright, means only that the work was independently created
by the author (as opposed to copied from other works), and that it possesses at
least some minimal degree of creativity. 1 M. Nimmer & D. Nimmer, Copyright ss
2.01[A], [B] (1990) (hereinafter Nimmer). To be sure, the requisite level of
creativity is extremely low; even a slight amount will suffice. The vast
majority of works make the grade quite easily, as they possess some creative
spark, "no matter how crude, humble or obvious" it might be. Id., s 1.08[C]
[1]. Originality does not signify novelty; a work may be original even though
it closely resembles other works so long as the similarity is fortuitous, not
the result of copying. To illustrate, assume that two poets,
each ignorant of the other, compose identical poems. Neither work is novel,
yet both are original and, hence, copyrightable. See: Sheldon v. Metro-
Goldwyn Pictures Corp., 81 F.2d 49, 54 (CA2 1936).
Originality is a constitutional requirement. The source of Congress' power to
enact copyright laws is Article I, s 8, cl. 8, of the Constitution, which
authorizes Congress to "secur[e] for limited Times to Authors ... the exclusive
Right to their respective Writings." In two decisions from the late 19th
century-- The Trade-Mark Cases, 100 U.S. 82, 25 L.Ed. 550 (1879); and
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 4 S.Ct. 279, 28 L.Ed.
349 (1884)--this Court defined the crucial terms "authors" and "writings." In
so doing, the Court made it unmistakably clear that these terms presuppose a
degree of originality.
In The Trade-Mark Cases, the Court addressed the constitutional scope
of "writings." For a particular work to be classified "under the head of
writings of authors," the Court determined, "originality is required." 100
U.S., at 94. The Court explained that originality requires independent
creation plus a modicum of creativity: "[W]hile the word writings may be
liberally construed, as it has been, to include original designs for engraving,
prints, &c., it is only such as are original, and are founded in the creative
powers of the mind. The writings which are to be protected are the fruits of
intellectual labor, embodied in the form of books, prints, engravings, and the
like." Ibid.
In Burrow-Giles, the Court distilled the same requirement from the
Constitution's use of the word "authors." The Court defined "author," in a
constitutional sense, to mean "he to whom anything owes its origin;
originator; maker." 111 U.S., at 58, 4 S.Ct., at 281 (internal quotation
marks omitted). As in The Trade-Mark Cases, the Court emphasized the
creative component of originality. It described copyright as being limited to
"original intellectual conceptions of the author," 111 U.S., at 58, 4 S.Ct.,
at 281, and stressed the importance of requiring an author who accuses another
of infringement to prove "the existence of those facts of originality,
of intellectual production, of thought, and conception." Id., at 59-60, 4
S.Ct., at 281-282.
The originality requirement articulated in The Trade-Mark Cases and
Burrow-Giles remains the touchstone of copyright protection today. See:
Goldstein v. California, 412 U.S. 546, 561-562, 93 S.Ct. 2303, 2312, 37
L.Ed.2d 163 (1973). It is the very "premise of copyright law." Miller v.
Universal City Studios, Inc., 650 F.2d 1365, 1368 (CA5 1981). Leading scholars
agree on this point. As one pair of commentators succinctly puts it: "The
originality requirement is constitutionally mandated for all works."
Patterson & Joyce, Monopolizing the Law: The Scope of Copyright Protection for
Law Reports and Statutory Compilations, 36 UCLA L.Rev. 719, 763, n. 155
(1989) (hereinafter Patterson & Joyce). Accord, id., at
759-760, and n. 140; Nimmer s 1.06[A] ("[O]riginality is a statutory as well
as a constitutional requirement"); id., s 1.08[C][1] ("[A] modicum of
intellectual labor ... clearly constitutes an essential constitutional
element").
It is this bedrock principle of copyright that mandates the law's seemingly
disparate treatment of facts and factual compilations. "No one may claim
originality as to facts." Id., s 2.11[A], p. 2-157. This is because facts do
not owe their origin to an act of authorship. The distinction is one between
creation and discovery: The first person to find and report a particular fact
has not created the fact; he or she has merely discovered its existence. To
borrow from Burrow-Giles, one who discovers a fact is not its "maker" or
"originator." 111 U.S., at 58, 4 S.Ct., at 281. "The discoverer merely
finds and records." Nimmer s 2.03[E]. Census takers, for example, do not
"create" the population figures that emerge from their efforts; in a
sense, they copy these figures from the world around them. Denicola,
Copyright in Collections of Facts: A Theory for the Protection of Nonfiction
Literary Works, 81 Colum.L.Rev. 516, 525 (1981) (hereinafter Denicola).
Census data therefore do not trigger copyright because these data are not
"original" in the constitutional sense. Nimmer s 2.03[E]. The same is
true of all facts--scientific, historical, biographical, and news of the day.
"[T]hey may not be copyrighted and are part of the public domain available to
every person." Miller, supra, at 1369.
Factual compilations, on the other hand, may possess the
requisite originality. The compilation author typically chooses which facts to
include, in what order to place them, and how to arrange the collected data so
that they may be used effectively by readers. These choices as to selection
and arrangement, so long as they are made independently by the compiler and
entail a minimal degree of creativity, are sufficiently original that Congress
may protect such compilations through the copyright laws. Nimmer ss 2.11[D],
3.03; Denicola 523, n. 38. Thus, even a directory that contains absolutely no
protectible written expression, only facts, meets the constitutional minimum
for copyright protection if it features an original selection or arrangement.
See: Harper & Row, 471 U.S., at 547, 105 S.Ct., at 2223. Accord, Nimmer s
3.03.
This protection is subject to an important limitation. The mere fact
that a work is copyrighted does not mean that every element of the work may be
protected. Originality remains the sine qua non of copyright; accordingly,
copyright protection may extend only to those components of a work that are
original to the author. Patterson & Joyce 800-802; Ginsburg, Creation and
Commercial Value: Copyright Protection of Works of Information, 90
Colum.L.Rev. 1865, 1868, and n. 12 (1990) (hereinafter Ginsburg). Thus, if the
compilation author clothes facts with an original collocation of words, he or
she may be able to claim a copyright in this written expression. Others may
copy the underlying facts from the publication, but not the precise words used
to present them. In Harper & Row, for example, we explained that President
Ford could not prevent others from copying bare historical facts from his
autobiography, see: 471 U.S., at 556-557, 105 S.Ct., at 2228-2229, but that
he could prevent others from copying his "subjective descriptions and portraits
of public figures." Id., at 563, 105 S.Ct., at 2232. Where the
compilation author adds no written expression but rather lets the facts speak
for themselves, the expressive element is more elusive. The only conceivable
expression is the manner in which the compiler has selected and arranged the
facts. Thus, if the selection and arrangement are original, these elements of
the work are eligible for copyright protection. See Patry, Copyright in
Compilations of Facts (or Why the "White Pages" Are Not Copyrightable), 12
Com. & Law 37, 64 (Dec. 1990) (hereinafter Patry). No matter how original the
format, however, the facts themselves do not become original through
association. See Patterson & Joyce 776.
This inevitably means that the copyright in a factual compilation is
thin. Notwithstanding a valid copyright, a subsequent compiler remains free to
use the facts contained in another's publication to aid in preparing a
competing work, so long as the competing work does not feature the same
selection and arrangement. As one commentator explains it: "[N]o matter how
much original authorship the work displays, the facts and ideas it exposes are
free for the taking.... [T]he very same facts and ideas may be divorced from
the context imposed by the author, and restated or reshuffled by second comers,
even if the author was the first to discover the facts or to propose the
ideas." Ginsburg 1868.
It may seem unfair that much of the fruit of the compiler's labor may be
used by others without compensation. As Justice Brennan has correctly
observed, however, this is not "some unforeseen byproduct of a statutory
scheme." Harper & Row, 471 U.S., at 589, 105 S.Ct., at 2245 (dissenting
opinion). It is, rather, "the essence of copyright," ibid., and a
constitutional requirement. The primary objective of copyright is not to
reward the labor of authors, but "[t]o promote the Progress of Science and
useful Arts." Art. I, s 8, cl. 8. Accord, Twentieth Century Music Corp. v.
Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975). To this
end, copyright assures authors the right to their original expression,
but encourages others to build freely upon the ideas and information conveyed
by a work. Harper & Row, supra, 471 U.S., at 556-557, 105 S.Ct., at 2228-
2229. This principle, known as the idea/expression or fact/expression
dichotomy, applies to all works of authorship. As applied to a factual
compilation, assuming the absence of original written expression, only the
compiler's selection and arrangement may be protected; the raw facts may be
copied at will. This result is neither unfair nor unfortunate. It is the
means by which copyright advances the progress of science and art.
This Court has long recognized that the fact/expression dichotomy limits
severely the scope of protection in fact-based works. More than a century ago,
the Court observed: "The very object of publishing a book on science or the
useful arts is to communicate to the world the useful knowledge which it
contains. But this object would be frustrated if the knowledge could not be
used without incurring the guilt of piracy of the book." Baker v. Selden,
101 U.S. 99, 103, 25 L.Ed. 841 (1880). We reiterated this point in Harper &
Row:
"[N]o author may copyright facts or ideas. The copyright is limited to those
aspects of the work--termed 'expression'--that display the stamp of the
author's originality.
"[C]opyright does not prevent subsequent users from copying from a prior
author's work those constituent elements that are not original--for example ...
facts, or materials in the public domain--as long as such use does not unfairly
appropriate the author's original contributions." 471 U.S., at 547-548, 105
S.Ct., at 2223-2224 (citation omitted).
This, then, resolves the doctrinal tension: Copyright treats facts and
factual compilations in a wholly consistent manner. Facts, whether alone or as
part of a compilation, are not original and therefore may not be copyrighted.
A factual compilation is eligible for copyright if it features an original
selection or arrangement of facts, but the copyright is limited to the
particular selection or arrangement. In no event may copyright extend to the
facts themselves.
B.
As we have explained, originality is a constitutionally mandated prerequisite
for copyright protection. The Court's decisions announcing this rule predate
the Copyright Act of 1909, but ambiguous language in the 1909 Act caused some
lower courts temporarily to lose sight of this requirement.
The 1909 Act embodied the originality requirement, but not as clearly as
it might have. See Nimmer s 2.01. The subject matter of copyright was set out
in ss 3 and 4 of the Act. Section 4 stated that copyright was available to
"all the writings of an author." 35 Stat. 1076. By using the words
"writings" and "author" -- the same words used in Article I, s 8, of the
Constitution and defined by the Court in The Trade-Mark Cases and Burrow-
Giles -- the statute necessarily incorporated the originality requirement
articulated in the Court's decisions. It did so implicitly, however, thereby
leaving room for error.
Section 3 was similarly ambiguous. It stated that the copyright in a work
protected only "the copyrightable component parts of the work." It thus stated
an important copyright principle, but failed to identify the specific
characteristic--originality--that determined which component parts of a work
were copyrightable and which were not.
Most courts construed the 1909 Act correctly, notwithstanding the less-than-
perfect statutory language. They understood from this Court's decisions that
there could be no copyright without originality. See Patterson & Joyce 760-
761. As explained in the Nimmer treatise: "The 1909 Act neither defined
originality, nor even expressly required that a work be 'original' in order to
command protection. However, the courts uniformly inferred the requirement
from the fact that copyright protection may only be claimed by 'authors'....
It was reasoned that since an author is 'the ... creator, originator'
it follows that a work is not the product of an author unless the work is
original." Nimmer s 2.01 (footnotes omitted) (citing cases).
But some courts misunderstood the statute. See, e.g., Leon v. Pacific
Telephone & Telegraph Co., 91 F.2d 484 (CA9 1937); Jeweler's Circular
Publishing Co. v. Keystone Publishing Co., 281 F. 83 (CA2 1922). These courts
ignored ss 3 and 4, focusing their attention instead on s 5 of the Act.
Section 5, however, was purely technical in nature: It provided that a person
seeking to register a work should indicate on the application the type of work,
and it listed 14 categories under which the work might fall. One of these
categories was "[b]ooks, including composite and cyclopaedic works,
directories, gazetteers, and other compilations." s 5(a). Section 5 did not
purport to say that all compilations were automatically copyrightable. Indeed,
it expressly disclaimed any such function, pointing out that "the subject-
matter of copyright [i]s defined in section four." Nevertheless, the fact that
factual compilations were mentioned specifically in s 5 led some courts to
infer erroneously that directories and the like were copyrightable per se,
"without any further or precise showing of original--personal--authorship."
Ginsburg 1895.
Making matters worse, these courts developed a new theory to justify the
protection of factual compilations. Known alternatively as "sweat of the brow"
or "industrious collection," the underlying notion was that copyright was a
reward for the hard work that went into compiling facts. The classic
formulation of the doctrine appeared in Jeweler's Circular Publishing Co.,
281 F., at 88:
"The right to copyright a book upon which one has expended labor in its
preparation does not depend upon whether the materials which he has collected
consist or not of matters which are publici juris, or whether such materials
show literary skill or originality, either in thought or in language, or
anything more than industrious collection. The man who goes through
the streets of a town and puts down the names of each of the inhabitants, with
their occupations and their street number, acquires material of which he is the
author."
The "sweat of the brow" doctrine had numerous flaws, the most glaring being
that it extended copyright protection in a compilation beyond selection and
arrangement--the compiler's original contributions--to the facts themselves.
Under the doctrine, the only defense to infringement was independent creation.
A subsequent compiler was "not entitled to take one word of information
previously published," but rather had to "independently wor[k] out the matter
for himself, so as to arrive at the same result from the same common sources of
information." Id., at 88-89 (internal quotations omitted). "Sweat of the
brow" courts thereby eschewed the most fundamental axiom of copyright law--that
no one may copyright facts or ideas. See Miller v. Universal City Studios,
Inc., 650 F.2d, at 1372 (criticizing "sweat of the brow" courts because "ensur
[ing] that later writers obtain the facts independently ... is precisely the
scope of protection given ... copyrighted matter, and the law is
clear that facts are not entitled to such protection").
Decisions of this Court applying the 1909 Act make clear that the statute did
not permit the "sweat of the brow" approach. The best example is
International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68,
63 L.Ed. 211 (1918). In that decision, the Court stated unambiguously that the
1909 Act conferred copyright protection only on those elements of a work that
were original to the author. International News Service had conceded taking
news reported by Associated Press and publishing it in its own newspapers.
Recognizing that s 5 of the Act specifically mentioned " 'periodicals,
including newspapers,' " s 5(b), the Court acknowledged that news articles were
copyrightable. Id., at 234, 39 S.Ct., at 70. It flatly rejected, however,
the notion that the copyright in an article extended to the factual
information it contained: "[T]he news element--the information respecting
current events contained in the literary production--is not the creation of the
writer, but is a report of matters that ordinarily are publici juris; it is
the history of the day." > Ibid. (FootNote: The Court ultimately rendered judgment for
Associated Press on noncopyright grounds that are not relevant here. See 248 U.S.,
at 235, 241-242, 39 S.Ct., at 71, 73-74.)
Without a doubt, the "sweat of the brow" doctrine flouted basic copyright
principles. Throughout history, copyright law has "recognize[d] a greater need
to disseminate factual works than works of fiction or fantasy." Harper &
Row, 471 U.S., at 563, 105 S.Ct., at 2232. Accord, Gorman, Fact or Fancy: The
Implications for Copyright, 29 J. Copyright Soc. 560, 563 (1982). But "sweat
of the brow" courts took a contrary view; they handed out proprietary
interests in facts and declared that authors are absolutely precluded from
saving time and effort by relying upon the facts contained in prior works. In
truth, "[i]t is just such wasted effort that the proscription against the
copyright of ideas and facts ... [is] designed to prevent." Rosemont
Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 310 (CA2 1966), cert.
denied 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967). "Protection for
the fruits of such research ... may in certain circumstances be available under
a theory of unfair competition. But to accord copyright protection on this
basis alone distorts basic copyright principles in that it creates a monopoly
in public domain materials without the necessary justification of protecting
and encouraging the creation of 'writings' by 'authors.' " Nimmer s 3.04, p.
3-23 (footnote omitted).
C.
"Sweat of the brow" decisions did not escape the attention of the
Copyright Office. When Congress decided to overhaul the copyright statute and
asked the Copyright Office to study existing problems, see Mills Music, Inc.
v. Snyder, 469 U.S. 153, 159, 105 S.Ct. 638, 642, 83 L.Ed.2d 556 (1985), the
Copyright Office promptly recommended that Congress clear up the
confusion in the lower courts as to the basic standards of copyrightability.
The Register of Copyrights explained in his first report to Congress that
"originality" was a "basic requisit[e]" of copyright under the 1909 Act, but
that "the absence of any reference to [originality] in the statute seems to
have led to misconceptions as to what is copyrightable matter." Report of the
Register of Copyrights on the General Revision of the U.S. Copyright Law, 87th
Cong., 1st Sess., p. 9 (H. Judiciary Comm. Print 1961). The Register suggested
making the originality requirement explicit. Ibid.
Congress took the Register's advice. In enacting the Copyright Act of 1976,
Congress dropped the reference to "all the writings of an author" and replaced
it with the phrase "original works of authorship." 17 U.S.C. s 102(a). In
making explicit the originality requirement, Congress announced that it was
merely clarifying existing law: "The two fundamental criteria of
copyright protection [are] originality and fixation in tangible
form.... The phrase 'original works of authorship,' which is purposely left
undefined, is intended to incorporate without change the standard of
originality established by the courts under the present [1909] copyright
statute." H.R.Rep. No. 94-1476, p. 51 (1976) (emphasis added) (hereinafter
H.R.Rep.); S.Rep. No. 94-473, p. 50 (1975), U.S.Code Cong. & Admin.News 1976,
pp. 5659, 5664 (emphasis added) (hereinafter S.Rep.). This sentiment was
echoed by the Copyright Office: "Our intention here is to maintain the
established standards of originality...." Supplementary Report of the Register
of Copyrights on the General Revision of U.S. Copyright Law, 89th Cong., 1st
Sess., pt. 6, p. 3 (H. Judiciary Comm. Print 1965) (emphasis added).
To ensure that the mistakes of the "sweat of the brow" courts would not be
repeated, Congress took additional measures. For example, s 3 of the 1909 Act
had stated that copyright protected only the "copyrightable component parts" of
a work, but had not identified originality as the basis for
distinguishing those component parts that were copyrightable from those
that were not. The 1976 Act deleted this section and replaced it with s
102(b), which identifies specifically those elements of a work for which
copyright is not available: "In no case does copyright protection for an
original work of authorship extend to any idea, procedure, process, system,
method of operation, concept, principle, or discovery, regardless of the form
in which it is described, explained, illustrated, or embodied in such work."
Section 102(b) is universally understood to prohibit any copyright in facts.
Harper & Row, supra, at 547, 556, 105 S.Ct., at 2223, 2228. Accord,
Nimmer s 2.03[E] (equating facts with "discoveries"). As with s 102(a),
Congress emphasized that s 102(b) did not change the law, but merely clarified
it: "Section 102(b) in no way enlarges or contracts the scope of copyright
protection under the present law. Its purpose is to restate ... that the basic
dichotomy between expression and idea remains unchanged." H.R.Rep., at 57;
S.Rep., at 54, U.S.Code Cong. & Admin.News 1976, p. 5670.
Congress took another step to minimize confusion by deleting the
specific mention of "directories ... and other compilations" in s 5 of the 1909
Act. As mentioned, this section had led some courts to conclude that
directories were copyrightable per se and that every element of a directory was
protected. In its place, Congress enacted two new provisions. First, to make
clear that compilations were not copyrightable per se, Congress provided a
definition of the term "compilation." Second, to make clear that the copyright
in a compilation did not extend to the facts themselves, Congress enacted s
103.
The definition of "compilation" is found in s 101 of the 1976 Act. It defines
a "compilation" in the copyright sense as "a work formed by the collection and
assembling of preexisting materials or of data that are selected, coordinated,
or arranged in such a way that the resulting work as a whole constitutes an
original work of authorship" (emphasis added).
The purpose of the statutory definition is to emphasize that
collections of facts are not copyrightable per se. It conveys this message
through its tripartite structure, as emphasized above by the italics. The
statute identifies three distinct elements and requires each to be met for a
work to qualify as a copyrightable compilation: (1) the collection and
assembly of pre-existing material, facts, or data; (2) the selection,
coordination, or arrangement of those materials; and (3) the creation, by
virtue of the particular selection, coordination, or arrangement, of an
"original" work of authorship. "[T]his tripartite conjunctive structure is
self-evident, and should be assumed to 'accurately express the legislative
purpose.' " Patry 51, quoting Mills Music, 469 U.S., at 164, 105 S.Ct., at
645.
At first glance, the first requirement does not seem to tell us much. It
merely describes what one normally thinks of as a compilation -- a collection of
pre-existing material, facts, or data. What makes it significant
is that it is not the sole requirement. It is not enough for copyright
purposes that an author collects and assembles facts. To satisfy the statutory
definition, the work must get over two additional hurdles. In this way, the
plain language indicates that not every collection of facts receives copyright
protection. Otherwise, there would be a period after "data."
The third requirement is also illuminating. It emphasizes that a compilation,
like any other work, is copyrightable only if it satisfies the originality
requirement ("an original work of authorship"). Although s 102 states plainly
that the originality requirement applies to all works, the point was emphasized
with regard to compilations to ensure that courts would not repeat the mistake
of the "sweat of the brow" courts by concluding that fact-based works are
treated differently and measured by some other standard. As Congress explained
it, the goal was to "make plain that the criteria of copyrightable subject
matter stated in section 102 apply with full force to works ... containing
preexisting material." H.R.Rep., at 57; S.Rep., at 55, U.S.Code Cong. &
Admin.News 1976, p. 5670.
The key to the statutory definition is the second requirement.
It instructs courts that, in determining whether a fact-based work is an
original work of authorship, they should focus on the manner in which the
collected facts have been selected, coordinated, and arranged. This is a
straightforward application of the originality requirement. Facts are never
original, so the compilation author can claim originality, if at all, only in
the way the facts are presented. To that end, the statute dictates that the
principal focus should be on whether the selection, coordination, and
arrangement are sufficiently original to merit protection.
Not every selection, coordination, or arrangement will pass muster.
This is plain from the statute. It states that, to merit protection, the facts
must be selected, coordinated, or arranged "in such a way" as to render the
work as a whole original. This implies that some "ways" will trigger
copyright, but that others will not. See Patry 57, and n. 76. Otherwise, the
phrase "in such a way" is meaningless and Congress should have defined
"compilation" simply as "a work formed by the collection and assembly of
preexisting materials or data that are selected, coordinated, or arranged."
That Congress did not do so is dispositive. In accordance with "the
established principle that a court should give effect, if possible, to every
clause and word of a statute," Moskal v. United States, 498 U.S. 103, 109-
110, 111 S.Ct. 461, 466, 112 L.Ed.2d 449 (1990) (internal quotation marks
omitted), we conclude that the statute envisions that there will be some fact-
based works in which the selection, coordination, and arrangement are not
sufficiently original to trigger copyright protection.
As discussed earlier, however, the originality requirement is not
particularly stringent. A compiler may settle upon a selection or arrangement
that others have used; novelty is not required. Originality requires only
that the author make the selection or arrangement independently (i.e., without
copying that selection or arrangement from another work), and that it display
some minimal level of creativity. Presumably, the vast majority of
compilations will pass this test, but not all will. There remains a narrow
category of works in which the creative spark is utterly lacking or so trivial
as to be virtually nonexistent. See generally Bleistein v. Donaldson
Lithographing Co., 188 U.S. 239, 251, 23 S.Ct. 298, 300, 47 L.Ed. 460
(1903) (referring to "the narrowest and most obvious limits"). Such works are
incapable of sustaining a valid copyright. Nimmer s 2.01[B].
Even if a work qualifies as a copyrightable compilation, it receives only
limited protection. This is the point of s 103 of the Act. Section
103 explains that "[t]he subject matter of copyright ... includes
compilations," s 103(a), but that copyright protects only the author's original
contributions--not the facts or information conveyed:
"The copyright in a compilation ... extends only to the material contributed
by the author of such work, as distinguished from the preexisting material
employed in the work, and does not imply any exclusive right in the preexisting
material." s 103(b).
As s 103 makes clear, copyright is not a tool by which a compilation
author may keep others from using the facts or data he or she has collected.
"The most important point here is one that is commonly misunderstood today:
copyright ... has no effect one way or the other on the copyright or public
domain status of the preexisting material." H.R.Rep., at 57; S.Rep., at 55,
U.S.Code Cong. & Admin. News 1976, p. 5670. The 1909 Act did not require, as
"sweat of the brow" courts mistakenly assumed, that each subsequent compiler
must start from scratch and is precluded from relying on research undertaken by
another. See, e.g., Jeweler's Circular Publishing Co., 281 F., at 88-89.
Rather, the facts contained in existing works may be freely copied because
copyright protects only the elements that owe their origin to the compiler--the
selection, coordination, and arrangement of facts.
In summary, the 1976 revisions to the Copyright Act leave no doubt that
originality, not "sweat of the brow," is the touchstone of copyright
protection in directories and other fact-based works. Nor is there any doubt
that the same was true under the 1909 Act. The 1976 revisions were a direct
response to the Copyright Office's concern that many lower courts had
misconstrued this basic principle, and Congress emphasized repeatedly that the
purpose of the revisions was to clarify, not change, existing law. The
revisions explain with painstaking clarity that copyright requires
originality, s 102(a); that facts are never original, s 102(b); that the
copyright in a compilation does not extend to the facts it contains, s 103(b);
and that a compilation is copyrightable only to the extent that it features an
original selection, coordination, or arrangement, s 101.
The 1976 revisions have proven largely successful in steering courts in the
right direction. A good example is Miller v. Universal City Studios, Inc.,
650 F.2d, at 1369-1370: "A copyright in a directory ... is properly viewed as
resting on the originality of the selection and arrangement of the factual
material, rather than on the industriousness of the efforts to develop the
information. Copyright protection does not extend to the facts themselves, and
the mere use of information contained in a directory without a substantial
copying of the format does not constitute infringement" (citation omitted).
Additionally, the Second Circuit, which almost 70 years ago issued the classic
formulation of the "sweat of the brow" doctrine in Jeweler's Circular
Publishing Co., has now fully repudiated the reasoning of that decision. See,
e.g., Financial Information, Inc. v. Moody's Investors Service, Inc., 808
F.2d 204, 207 (CA2 1986), cert. denied, 484 U.S. 820, 108 S.Ct. 79, 98
L.Ed.2d 42 (1987); Financial Information, Inc. v. Moody's Investors
Service, Inc., 751 F.2d 501, 510 (CA2 1984) (Newman, J., concurring);
Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (CA2 1980).
Even those scholars who believe that "industrious collection" should be
rewarded seem to recognize that this is beyond the scope of existing copyright
law. See Denicola 516 ("[T]he very vocabulary of copyright is ill
suited to analyzing property rights in works of nonfiction"); id., at
520-521, 525; Ginsburg 1867, 1870.
III.
There is no doubt that Feist took from the white pages of Rural's
directory a substantial amount of factual information. At a minimum, Feist
copied the names, towns, and telephone numbers of 1,309 of Rural's
subscribers. Not all copying, however, is copyright infringement. To
establish infringement, two elements must be proven: (1) ownership of a valid
copyright, and (2) copying of constituent elements of the work that are
original. See Harper & Row, 471 U.S., at 548, 105 S.Ct., at 2224. The
first element is not at issue here; Feist appears to concede that Rural's
directory, considered as a whole, is subject to a valid copyright because it
contains some foreword text, as well as original material in its yellow pages
advertisements. See Brief for Petitioner 18; Pet. for Cert. 9.
The question is whether Rural has proved the second element. In
other words, did Feist, by taking 1,309 names, towns, and telephone numbers
from Rural's white pages, copy anything that was "original" to Rural?
Certainly, the raw data does not satisfy the originality requirement. Rural
may have been the first to discover and report the names, towns, and telephone
numbers of its subscribers, but this data does not " 'ow[e] its origin' " to
Rural. Burrow-Giles, 111 U.S., at 58, 4 S.Ct., at 281. Rather, these bits
of information are uncopyrightable facts; they existed before Rural reported
them and would have continued to exist if Rural had never published a telephone
directory. The originality requirement "rule[s] out protecting ... names,
addresses, and telephone numbers of which the plaintiff by no stretch of the
imagination could be called the author." Patterson & Joyce 776.
Rural essentially concedes the point by referring to the names, towns, and
telephone numbers as "preexisting material." Brief for Respondent 17. Section
103(b) states explicitly that the copyright in a compilation does not
extend to "the preexisting material employed in the work."
The question that remains is whether Rural selected, coordinated,
or arranged these uncopyrightable facts in an original way. As mentioned,
originality is not a stringent standard; it does not require that facts be
presented in an innovative or surprising way. It is equally true, however,
that the selection and arrangement of facts cannot be so mechanical or routine
as to require no creativity whatsoever. The standard of originality is low,
but it does exist. See Patterson & Joyce 760, n. 144 ("While this requirement
is sometimes characterized as modest, or a low threshold, it is not without
effect") (internal quotation marks omitted; citations omitted). As this Court
has explained, the Constitution mandates some minimal degree of creativity,
see The Trade-Mark Cases, 100 U.S., at 94; and an author who claims
infringement must prove "the existence of ... intellectual production, of
thought, and conception." > Burrow-Giles, supra, 111 U.S., at 59-60, 4 S.Ct.,
at 281-282.
The selection, coordination, and arrangement of Rural's white pages do not
satisfy the minimum constitutional standards for copyright protection. As
mentioned at the outset, Rural's white pages are entirely typical. Persons
desiring telephone service in Rural's service area fill out an application and
Rural issues them a telephone number. In preparing its white pages, Rural
simply takes the data provided by its subscribers and lists it alphabetically
by surname. The end product is a garden-variety white pages directory, devoid
of even the slightest trace of creativity.
Rural's selection of listings could not be more obvious: It publishes the
most basic information--name, town, and telephone number--about each person who
applies to it for telephone service. This is "selection" of a sort, but it
lacks the modicum of creativity necessary to transform mere selection into
copyrightable expression. Rural expended sufficient effort to make the
white pages directory useful, but insufficient creativity to make it original.
We note in passing that the selection featured in Rural's white pages
may also fail the originality requirement for another reason. Feist points out
that Rural did not truly "select" to publish the names and telephone numbers of
its subscribers; rather, it was required to do so by the Kansas
Corporation Commission as part of its monopoly franchise. See 737 F.Supp.,
at 612. Accordingly, one could plausibly conclude that this selection was
dictated by state law, not by Rural.
Nor can Rural claim originality in its coordination and arrangement of
facts. The white pages do nothing more than list Rural's subscribers in
alphabetical order. This arrangement may, technically speaking, owe its origin
to Rural; no one disputes that Rural undertook the task of alphabetizing the
names itself. But there is nothing remotely creative about arranging names
alphabetically in a white pages directory. It is an age-old practice, firmly
rooted in tradition and so commonplace that it has come to be expected as a
matter of course. See Brief for Information Industry Association et al. as
Amici Curiae 10 (alphabetical arrangement "is universally observed in
directories published by local exchange telephone companies"). It is not only
unoriginal, it is practically inevitable. This time-honored tradition does not
possess the minimal creative spark required by the Copyright Act and the
Constitution.
We conclude that the names, towns, and telephone numbers copied by Feist were
not original to Rural and therefore were not protected by the copyright in
Rural's combined white and yellow pages directory. As a constitutional matter,
copyright protects only those constituent elements of a work that possess more
than a de minimis quantum of creativity. Rural's white pages, limited to basic
subscriber information and arranged alphabetically, fall short of the mark. As
a statutory matter, 17 U.S.C. s 101 does not afford protection from
copying to a collection of facts that are selected, coordinated, and arranged
in a way that utterly lacks originality. Given that some works must fail, we
cannot imagine a more likely candidate. Indeed, were we to hold that Rural's
white pages pass muster, it is hard to believe that any collection of facts
could fail.
Because Rural's white pages lack the requisite originality, Feist's use of the
listings cannot constitute infringement. This decision should not be construed
as demeaning Rural's efforts in compiling its directory, but rather as making
clear that copyright rewards originality, not effort. As this Court noted more
than a century ago, " 'great praise may be due to the plaintiffs for their
industry and enterprise in publishing this paper, yet the law does not
contemplate their being rewarded in this way.' " Baker v. Selden, 101 U.S.,
at 105.
The judgment of the Court of Appeals is Reversed.
Justice BLACKMUN concurs in the judgment.