Re: Copyright of lists

>So what would be a
>protectible "selection"  that results in an
alphabetized list being
>protectible?  I cant think of an example.  Can anyone
cite a relevant
>case?  What if I come up with an incredibly creative
parts numbering
>system for parts and I create a list of the parts by
their numbers
>assigned?  Protectible?

I think there's caselaw holding a business directory (Yellow
Pages) 
protectible; and also a case holding the AMA's diagnostic
codes 
protectible.

At 10:30 PM -0500 15/1/07, Webb, Jere wrote:
>I have always thought the "selection" part of
"selection and
>arrangement" is a very interesting and troubling
concept  In the Feist
>case (which surprised most copyright lawyers by holding
that the white
>pages of the phone book are not protectable), it didn't
matter how much
>sweat of the brow the publisher put into
"selecting" only real living
>individuals for the book.  Take this example:  you
decide to publish a
>list of everyone in a city that has green hair.  Many
hours are made
>implementing this selection.  Copyright protection?  I
don't think so.
>No creativity in the selection, although there might
have been a lot of
>creativity in implementing the selection.  I had a case
once where
>someone copied verbatim several hundred pages of my
clients government
>application for a license and filed it as a competing
application.  The
>application consisted mainly of maps that had been
prepared from
>government (i.e. public domain) maps
"selecting" certain features
>relevant to the license application.  Copyright
protection?  I decided
>this was a close call and found the cases confusing. 
Another example:
>what if through sheer creative genius someone comes up
with an algorithm
>to select from a database list a certain subset of data
of interest to
>some particular group or industry.  The result is then
presented as an
>alphabetical list?  Copyright protection?  I'm not sure.
 What if I go
>thru my college yearbook and "select" everyone
in my class by use of my
>amazing powers of recognition and then publish them in
an alphetical
>list.  Copyright protection?  I don't think so.  So what
would be a
>protectible "selection"  that results in an
alphabetized list being
>protectible?  I cant think of an example.  Can anyone
cite a relevant
>case?  What if I come up with an incredibly creative
parts numbering
>system for parts and I create a list of the parts by
their numbers
>assigned?  Protectible?  No according to one court which
observed that
>"clasifications schemes can in principle be
creative enough to satisfy
>the creativity requirement for copyright
protection" but that in the
>case before the court "all creative aspects of the
classification are
>just that: ideas".  The court said that the merger
doctrine and the
>originality doctrine kill copyright protection for this
sort of thing
>because "For almost all types of creativity claimed
[by the plaintiff}
>there is only one reasonable way to expess the
underlying idea".  This
>latter point would doom many if not most creative
selection cases.
>
>Jere
>
>Jere M. Webb
>Stoel Rives LLP
>Standard Insurance Building
>900 SW Fifth Ave., Suite 2600
>Portland, OR 97204
>
>Phone: 503-294-9460
>Fax:  503-220-2480
>Email:  jmwebbstoel.com
>
>Secretary: Nancy Campbell
>Phone:  503-294-9316
>Email: nacampbellstoel.com
>
>www.stoel.com
>
>
>
>
>-----Original Message-----
>From: CNI-COPYRIGHT -- Copyright & Intellectual
Property
>[mailto:CNI-COPYRIGHTcni.org] On Behalf Of
jfnblearthlink.com
>Sent: Friday, January 12, 2007 03:50 PM
>To: CNI-COPYRIGHT -- Copyright & Intellectual
Property
>Subject: [CNI-(C)] Re: Copyright of lists
>
>IBD is entitled to "very thin" copyright
protection for the selection
>and arrangement of its list of industry groups. In this
case, the
>arrangement -- alphabetical -- is unoriginal, almost
unavoidable, and
>undoubtedly unprotectible. The selection is another
matter. The range
>of available choices for a taxonomy of industry groups
is vast if not
>limitless. You say that "some of [your] names are
similar but not the
>same," and "in a few cases [your] names and
their names are the
>same." To the extent your example is representative
-- 3 of 4
>identical, and the fourth a slight variation -- you are
close to the
>virtually identical reproduction (right down to the use
of a matching
>abbreviation, Bldg) that would be required to establish
infringement
>of IBD's very thin copyright. You won't find it in the
statute or the
>caselaw, but in the real world this kind of subjective
judgment is
>often based on unstated equitable considerations. It
strikes me that
>it would be impossible to have arrived at your taxonomy
without
>having copied theirs -- for commercial advantage, with
strategic
>alterations to avoid a charge of slavish copying. In
other words, one
>gets the sense that you are trading on the good will
associated with
>their industry group listing.  If you are selling
subscriptions to a
>service that substitutes for theirs at half the price,
it calls to
>mind the knock-offs of Gucci purses sold by street
vendors. No
>offense intended. Maybe your product is superior. But it
smells like
>a knock-off. The "right" legal claim would be
unfair competition,
>except that the Copyright Act probably preempts the
unfair
>competition claim. If the Copyright Act's  preemption
provision
>deprives IBD of what would otherwise be a good state law
claim, then
>the court is going to be inclined to find a remedy in
the Copyright
>Act.
>
>Disclaimer: I'm not your lawyer, and you need one.
>
>John Noble
>
>At 4:05 PM -0500 9/1/07, HGS wrote:
>>My question is about copyright law regarding a list
of titles.
>>
>>I am a small business owner. I use a list of
industry group titles in
>my
>>business to classify stock market companies.  The
name of my industry
>group
>>list is "Industry Monitors 200".  The name
is not trademarked or
>>copyrighted. Here is a partial example of my list:
>>
>>Industry Monitors 200
>>    Banking-Foreign
>>    Banking-Midwest
>>    Banking-West
>>    Bldg-Hand Tools
>>
>>My Industry Monitors list has a total of 192
titles.
>>
>>Another company William O'Neil + Co. 197 Industry
Groups (tm) also has
>a
>>list that they call the IBD 197 Industry Groups. IBD
is "Investor's
>Business
>>Daily" a very large newspaper for investors.
>>
>>Here is a partial example of their list:
>>
>>IBD 197 Industry Groups
>>    Banks-Foreign
>>    Banks-Midwest
>>    Banks-West/Southwest
>>    Bldg-Hand Tools
>>
>>Some of my names are similar but not the same.  In a
few cases my names
>and
>>their names are the same.  They have 197 industry
groups, I have 192
>>industry groups.
>>
>>Is each name in their list copyrighted such that if
I have the exact
>same
>>name in my list I will be violating their copyright?
 Does a list that
>looks
>>similar come under copyright protection?
>>
>>They have recently contacted me with this
statement:
>>
>>The "HGSI Industry Group" list
impermissibly copies from IBD's
>copyrighted
>>industry group list and violates IBD copyright"
 (HGSI is the acronym
>used
>>for my product and website HighGrowthStock
Investor)
>>
>>Thank you for any assistance.
>>
>>Regards,
>>George Roberts
>>
>>
>>
>>
>>
>>####################################################
#########
>>This message is sent to you because you are
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>>       the mailing list <CNI-COPYRIGHTcni.org>.
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>><https
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>
>
>########################################################
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Classification:  UNCLASSIFIED 
Caveats: NONE

Well there could be many selection cases.  An alphabetical
list of the
100 most influential authors of the 20th century for
example.  It is
completely a judgement call as to who to include versus who
not to.
Whether the list is alphabeticaly arranged has little to do
with the
selection, that is the arrangement.  Selecting
"everything" isn't a
selection.  This was instrumental in the FEIST decision. 
They were
mandated by law to include every telephone subscriber in the
phone book.
I don't think that a purely mechanical selection, like
say,all books in
the OCLC with the word "diet" in the title is
protectable either.
However a list of "good diet books" probably is. 
As for classification
schemes, I think that che copyrightability of a list based
upon a
classification scheme would depend upon how much judgement
went into
placing items within the classification scheme, not upon the
complexity
of the classification scheme itself.  Even though
Bertillion
classification* is complex, there is little creativity in
where the
cards are filed.  However at least a modicum of judgement
(IMHO
sufficient for copyright protection) is called upon by those
who assign
descriptors from thesauri for bibliographic databases such
as INSPEC or
DTIC.

* a system of classification of people based upon
measurements of
different parts of their bodies, used extensively before
fingerprints.  
-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual
Property
[mailto:CNI-COPYRIGHTcni.org] On Behalf Of Webb, Jere
Sent: Monday, January 15, 2007 10:30 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: Copyright of lists

I have always thought the "selection" part of
"selection and
arrangement" is a very interesting and troubling
concept  In the Feist
case (which surprised most copyright lawyers by holding that
the white
pages of the phone book are not protectable), it didn't
matter how much
sweat of the brow the publisher put into
"selecting" only real living
individuals for the book.  Take this example:  you decide to
publish a
list of everyone in a city that has green hair.  Many hours
are made
implementing this selection.  Copyright protection?  I don't
think so.
No creativity in the selection, although there might have
been a lot of
creativity in implementing the selection.  I had a case once
where
someone copied verbatim several hundred pages of my clients
government
application for a license and filed it as a competing
application.  The
application consisted mainly of maps that had been prepared
from
government (i.e. public domain) maps "selecting"
certain features
relevant to the license application.  Copyright protection? 
I decided
this was a close call and found the cases confusing. 
Another example:
what if through sheer creative genius someone comes up with
an algorithm
to select from a database list a certain subset of data of
interest to
some particular group or industry.  The result is then
presented as an
alphabetical list?  Copyright protection?  I'm not sure. 
What if I go
thru my college yearbook and "select" everyone in
my class by use of my
amazing powers of recognition and then publish them in an
alphetical
list.  Copyright protection?  I don't think so.  So what
would be a
protectible "selection"  that results in an
alphabetized list being
protectible?  I cant think of an example.  Can anyone cite a
relevant
case?  What if I come up with an incredibly creative parts
numbering
system for parts and I create a list of the parts by their
numbers
assigned?  Protectible?  No according to one court which
observed that
"clasifications schemes can in principle be creative
enough to satisfy
the creativity requirement for copyright protection"
but that in the
case before the court "all creative aspects of the
classification are
just that: ideas".  The court said that the merger
doctrine and the
originality doctrine kill copyright protection for this sort
of thing
because "For almost all types of creativity claimed [by
the plaintiff}
there is only one reasonable way to expess the underlying
idea".  This
latter point would doom many if not most creative selection
cases.

Jere

Jere M. Webb
Stoel Rives LLP
Standard Insurance Building
900 SW Fifth Ave., Suite 2600
Portland, OR 97204

Phone: 503-294-9460
Fax:  503-220-2480
Email:  jmwebbstoel.com 

Secretary: Nancy Campbell
Phone:  503-294-9316
Email: nacampbellstoel.com

www.stoel.com
 



-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual
Property
[mailto:CNI-COPYRIGHTcni.org] On Behalf Of jfnblearthlink.com
Sent: Friday, January 12, 2007 03:50 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: Copyright of lists

IBD is entitled to "very thin" copyright
protection for the selection
and arrangement of its list of industry groups. In this
case, the
arrangement -- alphabetical -- is unoriginal, almost
unavoidable, and
undoubtedly unprotectible. The selection is another matter.
The range of
available choices for a taxonomy of industry groups is vast
if not
limitless. You say that "some of [your] names are
similar but not the
same," and "in a few cases [your] names and their
names are the same."
To the extent your example is representative -- 3 of 4
identical, and
the fourth a slight variation -- you are close to the
virtually
identical reproduction (right down to the use of a matching
abbreviation, Bldg) that would be required to establish
infringement of
IBD's very thin copyright. You won't find it in the statute
or the
caselaw, but in the real world this kind of subjective
judgment is often
based on unstated equitable considerations. It strikes me
that it would
be impossible to have arrived at your taxonomy without
having copied
theirs -- for commercial advantage, with strategic
alterations to avoid
a charge of slavish copying. In other words, one gets the
sense that you
are trading on the good will associated with their industry
group
listing.  If you are selling subscriptions to a service that
substitutes
for theirs at half the price, it calls to mind the
knock-offs of Gucci
purses sold by street vendors. No offense intended. Maybe
your product
is superior. But it smells like a knock-off. The
"right" legal claim
would be unfair competition, except that the Copyright Act
probably
preempts the unfair competition claim. If the Copyright
Act's
preemption provision deprives IBD of what would otherwise be
a good
state law claim, then the court is going to be inclined to
find a remedy
in the Copyright Act.

Disclaimer: I'm not your lawyer, and you need one.

John Noble

At 4:05 PM -0500 9/1/07, HGS wrote:
>My question is about copyright law regarding a list of
titles.
>
>I am a small business owner. I use a list of industry
group titles in
my
>business to classify stock market companies.  The name
of my industry
group
>list is "Industry Monitors 200".  The name is
not trademarked or 
>copyrighted. Here is a partial example of my list:
>
>Industry Monitors 200
>   Banking-Foreign
>   Banking-Midwest
>   Banking-West
>   Bldg-Hand Tools
>
>My Industry Monitors list has a total of 192 titles.
>
>Another company William O'Neil + Co. 197 Industry Groups
(tm) also has
a
>list that they call the IBD 197 Industry Groups. IBD is
"Investor's
Business
>Daily" a very large newspaper for investors.
>
>Here is a partial example of their list:
>
>IBD 197 Industry Groups
>   Banks-Foreign
>   Banks-Midwest
>   Banks-West/Southwest
>   Bldg-Hand Tools
>
>Some of my names are similar but not the same.  In a few
cases my names
and
>their names are the same.  They have 197 industry
groups, I have 192 
>industry groups.
>
>Is each name in their list copyrighted such that if I
have the exact
same
>name in my list I will be violating their copyright? 
Does a list that
looks
>similar come under copyright protection?
>
>They have recently contacted me with this statement:
>
>The "HGSI Industry Group" list impermissibly
copies from IBD's
copyrighted
>industry group list and violates IBD copyright" 
(HGSI is the acronym
used
>for my product and website HighGrowthStock Investor)
>
>Thank you for any assistance.
>
>Regards,
>George Roberts
>
>
>
>
>
>########################################################
#####
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Classification:  UNCLASSIFIED 
Caveats: NONE


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I can't think of cases off-hand, but I can certainly think
of examples 
where "selection" is more than a mechanical
process.

Suppose, for example, I compile a restaurant guide for a
town and decide 
to include only those restaurants that are, in my opinion,
any good. 
That "selection" would, I think, justify copyright
protection, whereas a 
selection of vegetarian restaurants or restaurants opening
late might not.

-- 
Edward Barrow
Copyright Consultant
edwardcopyweb.co.uk
***Important: see http://www.copyw
eb.co.uk/space/email for important 
information
about the legal status of this email


Webb, Jere wrote:
> I have always thought the "selection" part of
"selection and
> arrangement" is a very interesting and troubling
concept  In the Feist
> case (which surprised most copyright lawyers by holding
that the white
> pages of the phone book are not protectable), it didn't
matter how much
> sweat of the brow the publisher put into
"selecting" only real living
> individuals for the book.  Take this example:  you
decide to publish a
> list of everyone in a city that has green hair.  Many
hours are made
> implementing this selection.  Copyright protection?  I
don't think so.
> No creativity in the selection, although there might
have been a lot of
> creativity in implementing the selection.  I had a case
once where
> someone copied verbatim several hundred pages of my
clients government
> application for a license and filed it as a competing
application.  The
> application consisted mainly of maps that had been
prepared from
> government (i.e. public domain) maps
"selecting" certain features
> relevant to the license application.  Copyright
protection?  I decided
> this was a close call and found the cases confusing. 
Another example:
> what if through sheer creative genius someone comes up
with an algorithm
> to select from a database list a certain subset of data
of interest to
> some particular group or industry.  The result is then
presented as an
> alphabetical list?  Copyright protection?  I'm not
sure.  What if I go
> thru my college yearbook and "select"
everyone in my class by use of my
> amazing powers of recognition and then publish them in
an alphetical
> list.  Copyright protection?  I don't think so.  So
what would be a
> protectible "selection"  that results in an
alphabetized list being
> protectible?  I cant think of an example.  Can anyone
cite a relevant
> case?  What if I come up with an incredibly creative
parts numbering
> system for parts and I create a list of the parts by
their numbers
> assigned?  Protectible?  No according to one court
which observed that
> "clasifications schemes can in principle be
creative enough to satisfy
> the creativity requirement for copyright
protection" but that in the
> case before the court "all creative aspects of the
classification are
> just that: ideas".  The court said that the merger
doctrine and the
> originality doctrine kill copyright protection for this
sort of thing
> because "For almost all types of creativity
claimed [by the plaintiff}
> there is only one reasonable way to expess the
underlying idea".  This
> latter point would doom many if not most creative
selection cases.
> 
> Jere
> 
> Jere M. Webb
> Stoel Rives LLP
> Standard Insurance Building
> 900 SW Fifth Ave., Suite 2600
> Portland, OR 97204
> 
> Phone: 503-294-9460
> Fax:  503-220-2480
> Email:  jmwebbstoel.com 
> 
> Secretary: Nancy Campbell
> Phone:  503-294-9316
> Email: nacampbellstoel.com
> 
> www.stoel.com
>  
> 
> 
> 
> -----Original Message-----
> From: CNI-COPYRIGHT -- Copyright & Intellectual
Property
> [mailto:CNI-COPYRIGHTcni.org] On Behalf Of
jfnblearthlink.com
> Sent: Friday, January 12, 2007 03:50 PM
> To: CNI-COPYRIGHT -- Copyright & Intellectual
Property
> Subject: [CNI-(C)] Re: Copyright of lists
> 
> IBD is entitled to "very thin" copyright
protection for the selection 
> and arrangement of its list of industry groups. In this
case, the 
> arrangement -- alphabetical -- is unoriginal, almost
unavoidable, and 
> undoubtedly unprotectible. The selection is another
matter. The range 
> of available choices for a taxonomy of industry groups
is vast if not 
> limitless. You say that "some of [your] names are
similar but not the 
> same," and "in a few cases [your] names and
their names are the 
> same." To the extent your example is
representative -- 3 of 4 
> identical, and the fourth a slight variation -- you are
close to the 
> virtually identical reproduction (right down to the use
of a matching 
> abbreviation, Bldg) that would be required to establish
infringement 
> of IBD's very thin copyright. You won't find it in the
statute or the 
> caselaw, but in the real world this kind of subjective
judgment is 
> often based on unstated equitable considerations. It
strikes me that 
> it would be impossible to have arrived at your taxonomy
without 
> having copied theirs -- for commercial advantage, with
strategic 
> alterations to avoid a charge of slavish copying. In
other words, one 
> gets the sense that you are trading on the good will
associated with 
> their industry group listing.  If you are selling
subscriptions to a 
> service that substitutes for theirs at half the price,
it calls to 
> mind the knock-offs of Gucci purses sold by street
vendors. No 
> offense intended. Maybe your product is superior. But
it smells like 
> a knock-off. The "right" legal claim would be
unfair competition, 
> except that the Copyright Act probably preempts the
unfair 
> competition claim. If the Copyright Act's  preemption
provision 
> deprives IBD of what would otherwise be a good state
law claim, then 
> the court is going to be inclined to find a remedy in
the Copyright 
> Act.
> 
> Disclaimer: I'm not your lawyer, and you need one.
> 
> John Noble
> 
> At 4:05 PM -0500 9/1/07, HGS wrote:
>> My question is about copyright law regarding a list
of titles.
>>
>> I am a small business owner. I use a list of
industry group titles in
> my
>> business to classify stock market companies.  The
name of my industry
> group
>> list is "Industry Monitors 200".  The
name is not trademarked or
>> copyrighted. Here is a partial example of my list:
>>
>> Industry Monitors 200
>>   Banking-Foreign
>>   Banking-Midwest
>>   Banking-West
>>   Bldg-Hand Tools
>>
>> My Industry Monitors list has a total of 192
titles.
>>
>> Another company William O'Neil + Co. 197 Industry
Groups (tm) also has
> a
>> list that they call the IBD 197 Industry Groups.
IBD is "Investor's
> Business
>> Daily" a very large newspaper for investors.
>>
>> Here is a partial example of their list:
>>
>> IBD 197 Industry Groups
>>   Banks-Foreign
>>   Banks-Midwest
>>   Banks-West/Southwest
>>   Bldg-Hand Tools
>>
>> Some of my names are similar but not the same.  In
a few cases my names
> and
>> their names are the same.  They have 197 industry
groups, I have 192
>> industry groups.
>>
>> Is each name in their list copyrighted such that if
I have the exact
> same
>> name in my list I will be violating their
copyright?  Does a list that
> looks
>> similar come under copyright protection?
>>
>> They have recently contacted me with this
statement:
>>
>> The "HGSI Industry Group" list
impermissibly copies from IBD's
> copyrighted
>> industry group list and violates IBD
copyright"  (HGSI is the acronym
> used
>> for my product and website HighGrowthStock
Investor)
>>
>> Thank you for any assistance.
>>
>> Regards,
>> George Roberts
>>
>>
>>
>>
>>
>>
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An excerpt below from a case I handled where the plaintiff's
listings had been copied wholesale (including fake listings
inserted to trap copiers), but the defendant made some
changes in categories and additions to the listings.

The judge was impressed by the copier switching things
around and adding a few snippets, so the rule is you can
steal entire directories, but just switch them around a
little, tiny bit.

Might a jury have come to a different conclusion?

 Le Book Pub., Inc. v. Black Book Photography, Inc.
418 F.Supp.2d 305
S.D.N.Y.,2005.
August 16, 2005 (Approx. 12 pages) 

II. Copyright Infringement

[1] [2]  Plaintiff's basic claim is that defendants copied
listings from Le Book NY and included them in The Black Book
Directory. Plaintiff asserts that it hired a team of five
individuals who researched, selected and collected a vast
amount of information that were eventually included in Le
Book NY. (Am.Compl.¶ 22.) To detect any copying, Le Book NY
contains several mock company names and addresses (referred
to as "seeds"). These seed entries were then found
listed in The Black Book Directory. While plaintiff has
invested time, energy and money into collecting information
appropriate for its directory, it is a basic principle of
copyright law that facts cannot be copyrighted, no matter
how much effort has been put into discovering and compiling
these facts. See 17 U.S.C. § 102(b) ("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."). The rationale behind this
principle stems from the Constitution itself, which explains
that the primary objective of copyright is "[t]o
promote the Progress of Science and useful Arts,"
rather than reward the labor of authors. Feist Publ'ns, Inc.
v. Rural Tel. Service Co., 499 U.S. 340, 349, 111 S.Ct.
1282, 113 L.Ed.2d 358 (1991), quoting U.S. Const. Art. I, §
8, cl. 8. The key distinction is "one between creation
and discovery: The first person to find and report a fact
has not created the fact; he or she has merely discovered
its existence." Feist Publ'ns, 499 U.S. at 347, 111
S.Ct. 1282. To this day, the "originality requirement
··· remains the touchstone of copyright protection
today." Id. Therefore, plaintiff's listings of various
stylists, photographers, and agencies cannot be copyrighted
as they are purely facts and not original creations.

[3]  Plaintiff also argues that its directory deserves
copyright protection as a "factual compilation."
Indeed, "[f]actual compilations ··· may possess the
requisite originality" because 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 the readers."
Id. at 348, 111 S.Ct. 1282. Because the Supreme Court has
specifically rejected*309 the "sweat of the brow"
or "industrious collection" theories, where
copyright protection is a reward for the hard work that went
into compiling the facts, id. at 353, 111 S.Ct. 1282, any
copyright in a factual compilation is "thin," and
"only the compiler's selection and arrangement may be
protected; the raw facts may be copied at will." Id. at
350, 111 S.Ct. 1282.

[4] [5]  The Copyright Act of 1976 defines a copyrightable
compilation 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. § 101. To qualify as a factual
compilation, Le Book NY must include: "(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." Feist Publ'ns, 499 U.S.
at 347, 111 S.Ct. 1282. Plaintiff's directory clearly meets
the first two requirements. First, Le Book NY is a
collection of information about various individuals and
companies serving the fashion and creative industry. Second,
Plaintiff properly alleges that it selected and arranged the
materials for inclusion into the directory, employing a
detailed specific process by surveying existing clients,
conducting internet research to check "hit rates"
on websites, examining portfolios, and reviewing
individuals' client lists. (Am.Compl.¶¶ 120-126.) Plaintiff
has alleged that it had to select from a database of 35,000
of individuals and companies that would be of interest to
its audience. (Am.Compl.¶¶ 128-131.)

Plaintiff also satisfies the originality requirement of the
third prong. The requirement of originality "is not
particularly stringent," but it does exist. Feist
Publ'ns, 499 U.S. at 358-59, 111 S.Ct. 1282. The arrangement
must "order[ ] or group[ ] ··· 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 Publ'ns. Inc. v.
Chinatown Today Publ'g Enter., Inc., 945 F.2d 509, 513 (2d
Cir.1991). While Le Book NY's listings within categories are
arranged alphabetically, plaintiff does more than just
alphabetically list all its entries in one lump. Instead, it
has divided the listings into nine main categories: hair and
make-up stylists; model agencies; photo production, location
services, photo labs, and retouchers; rentals; events,
luxury hotels; magazines; music & video; fashion; and
advertising agencies. ( See Am. Compl. ¶¶ 148-63.) See also
Key Publ'ns. Inc., 945 F.2d at 514 (finding that the
arrangement in a directory of Chinese-American businesses
was sufficiently original, as it included categories such as
"Bean Curd & Bean Sprout Shops" that were of
particular interest to the Chinese-American community). This
arrangement required sufficient thought and creativity
necessary to meet the originality requirement. Plaintiff has
met all three requirements of a factual compilation, and
therefore, Le Book NY is entitled to copyright protection.

[6] [7]  Nevertheless, plaintiff's claim fails because
defendants have not infringed on plaintiff's copyright. To
establish infringement, two elements must be shown: (1)
possession of a valid copyright, and (2) "copying of
those elements of the work that are copyrightable." Id.
at 514. As the Second Circuit points out in Key
Publications, whether a compilation has been infringed
"requires a somewhat more refined analysis than is
applied in a case involving a wholly original work."
Id. While the test for original works is one of *310
"substantial similarity," when examining a factual
compilation, a court must examine the "substantial
similarly between those elements, and only those elements,
that provide copyrightability." Id. In Key
Publications, the court found that a telephone directory
targeted to New York City's Chinese-American community did
not infringe on a similar directory, despite blatant copying
of certain listings, because the arrangement of the two
directories were not "remotely similar," and only
a small percentage of the defendants' categories overlapped
with the plaintiff's categories. Id. at 515.

Here, plaintiff and defendants' directories are also
arranged very differently. Le Book NY includes nine main
categories, while The Black Book Directory contains ten.
Plaintiff points out that The Black Book Directory contains
some of the same categories as Le Book NY. (Am.Compl.¶ 165.)
For example, Le Book NY has a "Hair, Make-up
Stylists" category, and The Black Book Directory has a
"Stylists" grouping. However, some overlap is
bound to happen when producing directories for a similar
audience, and this does not automatically lead to a finding
of infringement. See id. at 516 ("There are a finite
number of businesses that are of special interest to a
sizeable segment of [a particular community], and some
substantial overlap among classified business directories
compiled for that community is inevitable.").

A perusal of the listings under each book demonstrate that
the compilations are arranged quite distinctly. Le Book NY
includes some categories, such as "Fashion" and
"Magazine" that The Black Book Directory does not
have. While Le Book NY contains a broad category titled
"Rentals," the parallel subcategories listed under
"Rentals" are spread among several categories in
The Black Book Directory, such as "Supplies &
Equipment," "Props & Wardrobe," and
"Studios/Sound Stages/Locations." Similarly,
listings under Le Book NY's "Photo Production, Location
Services, Photo Labs, Retouchers," can be found in
three categories in The Black Book Directory, specifically
"Pre Press/ Photo Labs/ Agencies,"
"Production Co., & Location Services," and
"Post Production."

In addition, some subcategories are placed in different
groupings. For example, Le Book NY places "Animal
Rentals" under the "Rentals" category, while
The Black Book Directory has a subcategory titled
"Animal Casting" under "Casting/Model/Talent
Agencies." Last, each directory has sets of listings
that do not exist in the other. For example, Le Book NY
contains subcategories "Wigs," "Plant
Rentals," "Luxury Accessories," "Perfume
& Cosmetic Companies," "Luxury and Boutique
Hotels," and "Fashion TV," that Black Book NY
does not have. Similarly, The Black Book Directory contains
subcategories that do not exist in Le Book NY, such as
"Ocean & Marine Equipment," "Art
Supplies," "FX Props/ Special FX,"
"Animatronics & Mechanical FX,"
"Ice," "DVD Authoring &
Replications," "Animation, Computer Graphics,
& Visual FX," "Film & Tape Storage,"
and "CD Duplication," among others.

The arrangement of the listings demonstrate that the
"organizing principles of the two directories are thus
not substantially similar." Key Publ'ns, 945 F.2d at
516. A consumer looking at the two directories would
perceive the difference when perusing the table of contents
of the two directories. Therefore, defendants' motion to
dismiss is granted on plaintiff's copyright infringement
claim.


Raymond J. Dowd
Partner
Dunnington, Bartholow & Miller, LLP
477 Madison Avenue, 12th Floor
New York, NY 10022
Tel: (212) 682-8811
Fax: (212) 661-7769
rdowddunnington.com
 

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