upon it to Repulsive Pictures. Livia cannot
example of a derivative work that can be
write a screenplay based upon her novel
created without obtaining permission from
without Repulsive’s permission.
the owner of the preexisting expression
pursuant to the fair use privilege. Fair use
Preexisting material in the public domain
is discussed in detail in Chapter 10, “Using
You don’t need permission to create a
Other Authors’ Words.”
derivative work based on expression that is in
CHAPTER 6 | ADAPTATIONS AND COMPILATIONS | 151
EXAMPLE: You can write a screenplay
derivative work. If the preexisting expression
based on Dickens’s Great Expectations
was in the public domain, it remains so and
without obtaining anyone’s permission,
anyone else is free to use it. If the preexisting
since the novel’s copyright expired long ago.
expression was protected by copyright, that
Facts and ideas are always in the public
copyright continues just as if the derivative
domain. For this reason, an author need
work never existed.
not obtain permission to use the facts or
EXAMPLE 1: Jil ian wants to write a screen-
ideas contained in an otherwise protected
play based upon a novel published in 1917.
preexisting work.
She pays the owner of the copyright in the
novel to grant her the exclusive right to
EXAMPLE: Shirley, a three-year-old girl,
prepare derivative works based upon it. She
fal s into a well in Texas and is rescued
writes the screenplay. She now owns the
one week later, miraculously still alive. The
copyright to all the material she added to the
entire story was reported live on CNN and
preexisting material in order to adapt it into a
extensively covered by other news media as
screenplay. Her copyright in this material will
wel . Shirley’s parents write a book about the
last for the rest of her life plus an additional
episode entitled All’s Well That Ends Well.
70 years. However, the copyright in the novel
The book contains extensive quotations
itself is not extended or otherwise affected
from Shirley describing her experiences
by Jil ian’s screenplay. The novel’s copyright
(primarily in baby talk). The WOLF TV
expired on December 31, 1992.
Network hires Bart to write a TV movie
about the event. Bart bases the teleplay on
EXAMPLE 2: Dr. Huxley writes an updated
the facts contained in newspaper accounts
new edition of Charles Darwin’s The Origin
and the CNN coverage. He also uses some
of Species. The publication of the new
of the facts contained in All’s Well That Ends
edition does not in any way revive the
Wel ; but he neither quotes nor paraphrases
copyright in The Origin of Species, which
any of the material in the book. The teleplay
expired long ago. Anyone else is free to
is not a derivative work of All’s Well That
write their own updated version of Darwin’s
Ends Well, and WOLF need not obtain the
great work, or otherwise use the material in
permission of Shirley’s parents to broadcast
the book.
its TV movie.
Registering Derivative Works
Derivative Work Doesn’t Affect
Existing Copyright Protection
A derivative work can and should be regis-
tered with the Copyright Office. This way, if
The copyright status of preexisting expression anyone infringes upon the new material that used in a derivative work is unaffected by the has been added to the preexisting material,
152 | THE COPYRIGHT HANDBOOK
the derivative work author will be able to
compilation consisting of 500 unprotectable
obtain statutory damages and attorneys’
facts—the names of 500 baseball cards.
fees in an infringement suit. (See Chapter 3,
EXAMPLE 2: Mark, an efficiency expert,
“Copyright Registration.”)
takes a number of blank forms, such as a
datebook and address book, and other
Compilations
materials in the public domain, such as a
calendar, and arranges them all into a new
A compilation is a work created by selecting,
“executive organizer.” Mark’s organizer is
organizing, and arranging previously existing
a protectable compilation consisting of
material in such a way that the resulting
unprotectable forms and calendars.
work as a whole constitutes an original
In addition to baseball card lists and
work of authorship. Compilations differ
executive organizers, fact compilations
from derivative works because the author
may include, but are not limited to, such
of a compilation makes no changes in the
works as automated databases—a body of
preexisting material and need not add any
facts, data, or other information assembled
new material of his or her own. Moreover,
into an organized format suitable for use
protectable compilations can be created solely on a computer. The variety of information from material that is in the public domain.
contained on automated databases is nearly
endless and growing rapidly. Everything
Fact Compilations (Databases)
from government documents to stock
A protectable fact compilation is created
quotes to magazine and journal articles can
by selecting and arranging facts or other
be accessed. Other types of compilations
items that are in the public domain. (See
include bibliographies, directories, price
Chapter 5, “What Copyright Protects,” for lists, and catalogs of all types.
a detailed discussion of what is and is not
in the public domain.)
Col ective Works
EXAMPLE 1: Andrea, a baseball card
A compilation may also be created by select-
dealer, compiles a catalog listing the 500
ing and arranging into a single whole work
cards in existence she deems to be the
preexisting materials that are separate and
most desirable for collectors in their
independent works entitled to copyright pro-
order of importance. Andrea sel s copies
tection in their own right. Such compilations
of the catalog to collectors across the
are called collective works.
country. Andrea’s catalog is a protectable
CHAPTER 6 | ADAPTATIONS AND COMPILATIONS | 153
EXAMPLE: El iot compiles an anthology
Extent of Copyright Protection
of the 25 best American short stories
for Compilations
published during the 1980s. Each story is a
separate and independent work that was
You may be wondering why a compilation
protected by copyright the moment it was
should be protected by copyright. The
created. However
, El iot has created a new
author of a compilation has not written
protectable collective work by selecting
anything new. For example, how can
and arranging the stories into a collective
Andrea’s baseball card catalog in the
whole—that is, a collection of the best short example above constitute a protectable
stories of the 1980s. (Of course, El iot would
original work of authorship? Where is the
have to get permission from the copyright
originality—that is, independent creation
owners of all the stories before publishing
plus minimal creativity? Andrea simply
the col ection.)
compiled a list of the names of baseball
cards; none of the names on her list is
Other examples of collective works
individually protectable.
include newspapers, magazines, and other
What makes Andrea’s list protectable
periodicals in which separately protectable
is the creativity and judgment she had to
articles are combined into a collective
employ in deciding which of the thousands
whole, and encyclopedias consisting of
of baseball cards in existence belonged on
independently protectable articles on
her list of the 500 most desirable cards, and
various topics.
in deciding in what order the names should
appear on the list. Similarly, Elliot in the
Fact Compilation Combined
example above used creativity and judgment
With Collective Work
in selecting which of the thousands of short
stories published during the 1980s belonged
It is possible to create a compilation that
in his anthology of the 25 best short stories
includes both unprotectable facts and other
of that decade, and in deciding on the
items that are individual y protectable.
arrangement (that is, order) of the stories.
EXAMPLE: An anthology of selected
It is this selection and arrangement of the
articles by various historians on ancient
material making up a compilation that
Sparta also contains a bibliography
constitutes protected expression.
listing every article written on Sparta
The copyright in a protectable fact com-
in the 20th century.
pilation or collective work extends only to
this protected expression—that is, only to
154 | THE COPYRIGHT HANDBOOK
the compiler’s selection and arrangement
Opinions Are Not Facts
of the preexisting material, not to the pre-
existing material itself. This is sometimes
Raw facts cannot be protected by copyright.
referred to as a thin copyright.
However, some things you might think are
EXAMPLE: The copyright in El iot’s short
unprotectable facts real y aren’t. At least
story anthology extends only to El iot’s
that’s what two federal appellate courts
selection and arrangement of the stories in
have held. These cases involved copying of
his anthology, not to the stories themselves.
databases containing price data. In one case,
This means that anyone could reprint the
someone copied the price quotations in coin
stories contained in the collection (with
dealer newsletters. In the other, the prices
the copyright owners’ permission) without
for used cars—listed in a used car price
violating Elliot’s compilation copyright. But
guide called the Red Book—were copied.
another person could not, without El iot’s
In both cases, the courts held that the
permission, publish a book of the best short
individual price quotations were copyrighted
stories of the 1980s using the same stories in
because they were entirely subjective—they
El iot’s book, printed in the same order.
were simply estimates given by the publishers
of the guides. They represented the
publishers’ opinions of what the coins and
Raw facts in fact compilations
used cars were worth, not what someone
not protected by copyright
actual y paid for them. The courts held that
Since the copyright in a fact compilation
sufficient creativity was required to devise
extends only to the compiler’s selection
these estimates for them to be protected by
and arrangement of the facts, the raw facts
copyright. ( CCC Info. Servs., Inc. v. Maclean
or data themselves are not protected by
Hunter Mkt. Reports, 44 F.3d 61 (2d Cir.
copyright. The Supreme Court has stated
1994); CDN Inc. v. Kenneth A. Kapes, 197 F.3d
that the raw facts may be copied at will
1256 (9th Cir. 1999).)
and that a compiler is even free to use the
facts contained in another’s compilation to
aid in preparing a competing compilation
EXAMPLE: Applied Technologies of
( Feist Publications, Inc. v. Rural Telephone
Wisconsin created a computer program
Service Co., 111 S.Ct. 1282 (1991)); but,
called Market Drive to help Wisconsin
as discussed above, the competing work
county assessors’ offices compile real estate
may not feature the same selection and
data, such as property addresses and the
arrangement as the earlier compilation.
names of the owners, in an electronic
database. The counties used the data for
CHAPTER 6 | ADAPTATIONS AND COMPILATIONS | 155
tax assessment purposes. A company,
In a landmark decision on fact compila-
WIREdata, attempted to obtain the raw
tions, the Supreme Court held that the
data from the counties to create its own
selection and arrangement of white pages
database for use by real estate brokers.
in a typical telephone directory fails to
A court held that Applied could not sue
satisfy the creativity requirement and is
WIREdata for copyright infringement
therefore not protected by copyright. ( Feist
because the raw data WIREdata wanted was Publications, Inc. v. Rural Telephone Service in the public domain. ( Applied Technologies
Co. , 111 S.Ct. 1282 (1991).) There are
of Wisconsin v. WIREdata, Inc., 350 F.3d 640
doubtless many other types of compilations
(7th Cir. 2003).)
that are unprotectable for the same reason.
It may seem unfair that the facts con-
For example, the names, phone numbers,
tained in a compilation gathered at great
and addresses contained in a yel ow pages
trouble and expense may be used by
phone directory organized into an alpha-
others without compensating the original
betical list of business classifications have
compiler. However, recall that the purpose
been found to completely lack creativity
of copyright is to advance the progress of
and therefore not to qualify for copyright
knowledge, not to reward
authors. If the
protection. ( Bellsouth Advertising & Publishing
first person to compile a group of raw facts
Corp. v. Donnel ey Information Publishing,
had a monopoly over them, such progress
Inc. , 999 F.2d 1436 (11th Cir. 1993).)
would be greatly impeded.
How can you tell if your compilation
makes the grade?
The minimal creativity requirement
The selection of the data in a compilation
A work must be the product of a minimal
will satisfy the minimal creativity test if the
amount of creativity to be protected by
compiler has:
copyright. This requirement applies to fact
• chosen less than all of the data in
compilations as well as all other works. The
a given body of relevant material,
data contained in a factual compilation
regardless of whether it is taken from
need not be presented in an innovative
one or more sources, or
or surprising way, but the selection or
• taken all of the data from several
arrangement cannot be so mechanical or
different sources and combined them
routine as to require no creativity whatsoever.
to form a new work.
If no creativity was employed in selecting or
For example, there is no selectivity
arranging the data, the compilation will not
required to compile a list of all the people
receive copyright protection.
who have telephones in a given geographical
area—that is, the compiler of a telephone
156 | THE COPYRIGHT HANDBOOK
directory need not employ any judgment in arrangement of names in a telephone
deciding who belongs in the directory.
directory is not minimally creative.
A compiler’s arrangement or coordination
Representatives of the Copyright
of the data in a compilation will satisfy the
Office have indicated that in their view
creativity requirement as long as the data is
the fol owing types of compilations wil
ordered into lists or categories that go beyond usual y fail to satisfy the minimal creativity the mere mechanical grouping of data.
requirement.
Alphabetical, chronological, or sequential
Street address directories, alumni
listings of data are purely mechanical
directories, membership lists, mailing lists,
and do not satisfy the minimal creativity
and subscriber lists. Where the names and
requirement. This is why the alphabetical
addresses in these types of compilations
are arranged in alphabetical or numerical
The Copyright Handbook Page 28