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them of protection. The opposite proposition would mean that a portrait by Velasquez or Whistler wascommon property because others might try their hand on the same face. Others are free to copy theoriginal. They are not free to copy the copy. Blunt v. Patten, 2 Paise 397, 400. See Kelly v. chanroblesvirtualawlibrary Page 188 U. S. 250Morris, L.R. 1 Eq. 697; Morris v. Wright, L.R. 5 Ch. 279. The copy is the personal reaction of anindividual upon nature. Personality always contains something unique. It expresses its singularityeven in handwriting, and a very modest grade of art has in it something irreducible which is one man's

alone. That something he may copyright unless there is a restriction in the words of the act.If there is a restriction, it is not to be found in the limited pretensions of these particular works. Theleast pretentious picture has more originality in it than directories and the like, which may becopyrighted. Drone, Copyright 153. See Henderson v. Tompkins, 60 F.7d 8, 765. The amount oftraining required for humbler efforts than those before us is well indicated by Ruskin."If any young person, after being taught what is, in polite circles, called 'drawing,' will try to copy thecommonest piece of real work -- suppose a lithograph on the title page of a new opera air, or awoodcut in the cheapest illustrated newspaper of the day -- they will find themselves entirely beaten."Elements of Drawing, first ed. 3. There is no reason to doubt that these prints, in their ensemble andin all their details, in their design and particular combinations of figures, lines, and colors, are theoriginal work of the plaintiffs' designer. If it be necessary, there is express testimony to that effect. It

would be pressing the defendant's right to the verge, if not beyond, to leave the question of originalityto the jury upon the evidence in this case, as was done in Hegeman v. Springer, 110 F.3d 4. We assume that the construction of Rev.Stat. § 4952, allowing a copyright to the "author, designer, orproprietor . . . of any engraving, cut, print . . . [or] chromo," is affected by the act of 1874, 18 Stat. 78,79, c. 301, § 3. That section provides that,"in the construction of this act, the words 'engraving,' 'cut,' and 'print' shall be applied only to pictorialillustrations or works connected with the fine arts."We see no reason for taking the words "connected with the fine arts" as qualifying anything exceptthe word "works," but it would not change our decision if we should assume further that they alsoqualified "pictorial illustrations," as the defendant contends. chanroblesvirtualawlibrary Page 188 U. S. 251

These chromolithographs are "pictorial illustrations." The word "illustrations" does not mean that theymust illustrate the text of a book, and that the etchings of Rembrandt or Muller's engraving of theMadonna di San Sisto could not be protected today if any man were able to produce them. Again, theact, however construed, does not mean that ordinary posters are not good enough to be consideredwithin its scope. The antithesis to "illustrations or works connected with the fine arts" is not works oflittle merit or of humble degree, or illustrations addressed to the less educated classes; it is "prints orlabels designed to be used for any other articles of manufacture." Certainly works are not the lessconnected with the fine arts because their pictorial quality attracts the crowd, and therefore givesthem a real use -- if use means to increase trade and to help to make money. A picture isnonetheless a picture, and nonetheless a subject of copyright, that it is used for an advertisement.And if pictures may be used to advertise soap, or the theater, or monthly magazines, as they are,

they may be used to advertise a circus. Of course, the ballet is as legitimate a subject for illustrationas any other. A rule cannot be laid down that would excommunicate the paintings of Degas.Finally, the special adaptation of these pictures to the advertisement of the Wallace shows does notprevent a copyright. That may be a circumstance for the jury to consider in determining the extent ofMr. Wallace's rights, but it is not a bar. Moreover, on the evidence, such prints are used by lesspretentious exhibitions when those for whom they were prepared have given them up.It would be a dangerous undertaking for persons trained only to the law to constitute themselves final

judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At theone extreme, some works of genius would be sure to miss appreciation. Their very novelty wouldmake them repulsive until the public had learned the new language in which their author spoke. Itmay be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet

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would have been sure of protection when seen for the first time. At the other end, copyright would bedenied to chanroblesvirtualawlibrary Page 188 U. S. 252pictures which appealed to a public less educated than the judge. Yet if they command the interest ofany public, they have a commercial value -- it would be bold to say that they have not an aestheticand educational value -- and the taste of any public is not to be treated with contempt. It is an ultimatefact for the moment, whatever may be our hopes for a change. That these pictures had their worthand their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs'

rights. See Henderson v. Tompkins, 60 F.7d 8, 765. We are of opinion that there was evidence thatthe plaintiffs have rights entitled to the protection of the law.The judgment of the circuit court of appeals is reversed; the judgment of the circuit court is also reversed, and the cause remanded to that court with directions to set aside the verdict and grant a new trial. MR. JUSTICE HARLAN, dissenting:Judges Lurton, Day, and Severens, of the circuit court of appeals, concurred in affirming the judgmentof the district court. Their views were thus expressed in an opinion delivered by Judge Lurton:"What we hold is this: that if a chromo, lithograph, or other print, engraving, or picture has no otheruse than that of a mere advertisement, and no value aside from this function, it would not bepromotive of the useful arts within the meaning of the constitutional provision, to protect the 'author' in

the exclusive use thereof, and the copyright statute should not be construed as including such apublication if any other construction is admissible. If a mere label simply designating or describing anarticle to which it is attached, and which has no value separated from the article, does not comewithin the constitutional clause upon the subject of copyright, it must follow that a pictorial illustrationdesigned and useful only as an advertisement, and having no intrinsic value other than its function asan advertisement, must be equally without the obvious meaning of the Constitution.Page 188 U. S. 253It must have some connection with the fine arts to give it intrinsic value, and that it shall have is themeaning which we attach to the Act of June 18, 1874, amending the provisions of the copyright law.We are unable to discover anything useful or meritorious in the design copyrighted by the plaintiffs inerror other than as an advertisement of acts to be done or exhibited to the public in Wallace's show.

No evidence, aside from the deductions which are to be drawn from the prints themselves, wasoffered to show that these designs had any original artistic qualities. The jury could not reasonablyhave found merit or value aside from the purely business object of advertising a show, and theinstruction to find for the defendant was not error. Many other points have been urged as justifying theresult reached in the court below. We find it unnecessary to express any opinion upon them in view ofthe conclusion already announced. The judgment must be affirmed."Courier Lithographing Co. v. Donaldson Lithographing Co., 104 F.9d 3, 996.I entirely concur in these views, and therefore dissent from the opinion and judgment of this Court.The clause of the Constitution giving Congress power to promote the progress of science and usefularts, by securing for limited terms to authors and inventors the exclusive right to their respectiveworks and discoveries, does not, as I think, embrace a mere advertisement of a circus.

MR. JUSTICE McKENNA authorizes me to say that he also dissents.Burrow-Giles Lithographic Company v. Sarony, 111 U.S. 53 (1884)Burrow-Giles Lithographic Company v. Sarony Submitted December 13, 1883 Decided March 17, 1884 111 U.S. 53 IN ERROR TO THE CIRCUIT COURT OF THE UNITEDSTATES FOR THE SOUTHERN DISTRICT OF NEW YORK Syllabus It is within the constitutional power of Congress to confer upon the author, inventor, designer, orproprietor of a photograph the rights conferred by Rev.Stat. § 4952, so far as the photograph is arepresentation of original intellectual conceptions.











The object of the requirement in the Act of June 18, 1874, 18 Stat. 78, that notice of a copyright in aphotograph shall be given by inscribing upon some visible portion of it the words Copyright, the date,and the name of the proprietor, is to give notice of the copyright to the public, and a notice whichgives his surname and the initial letter of his given name is sufficient inscription of the name.Whether a photograph is a mere mechanical reproduction or an original work of art is a question to bedetermined by proof of the facts of originality, of intellectual production, and of thought andconception on the part of the author, and when the copyright is disputed, it is important to establishthose facts.

This was a suit for an infringement of a copyright in a photograph of one Oscar Wilde. The defensedenied the constitutional right of Congress to confer rights of authorship onPage 111 U. S. 54the maker of a photograph, and also denied that the surname of the proprietor with the initial letter ofhis given name prefixed to it ("N. Sarony") inscribed on the photograph was a compliance with theprovisions of the Act of June 18, 1874. 18 Stat. 78. The essential facts appear in the opinion of theCourt. The judgment below was for the plaintiff. The writ of error was sued out by the defendant.MR. JUSTICE MILLER delivered the opinion of the Court.This is a writ of error to the Circuit Court for the Southern District of New York.Plaintiff is a lithographer, and defendant a photographer, with large business in those lines in the Cityof New York. The suit was commenced by an action at law in which Sarony was plaintiff and the

lithographic company was defendant, the plaintiff charging the defendant with violating his copyrightin regard to a photograph, the title of which is "Oscar Wilde, No. 18." A jury being waived, the courtmade a finding of facts on which a judgment in favor of the plaintiff was rendered for the sum of $600for the plates and 85,000 copies sold and exposed to sale, and $10 for copies found in hispossession, as penalties under section 4965 of the Revised Statutes. Among the finding of factsmade by the court, the following presents the principal question raised by the assignment of errors inthe case:"3. That the plaintiff, about the month of January, 1882, under an agreement with Oscar Wilde,became and was the author, inventor, designer, and proprietor of the photograph in suit, the title ofwhich is 'Oscar Wilde, No. 18,' being the number used to designate this particular photograph and ofthe negative thereof; that the same is a useful, new, harmonious, characteristic, and graceful picture,

and that said plaintiff made the same at his place of business in said City of New York, and within theUnited States, entirely from his ownPage 111 U. S. 55original mental conception, to which he gave visible form by posing the said Oscar Wilde in front ofthe camera, selecting and arranging the costume, draperies, and other various accessories in saidphotograph, arranging the subject so as to present graceful outlines, arranging and disposing the lightand shade, suggesting and evoking the desired expression, and from such disposition, arrangement,or representation, made entirely by the plaintiff, he produced the picture in suit, Exhibit A, April 14,1882, and that the terms 'author,' 'inventor,' and 'designer,' as used in the art of photography and inthe complaint, mean the person who so produced the photograph."Other findings leave no doubt that plaintiff had taken all the steps required by the act of Congress to

obtain copyright of this photograph, and section 4952 names photographs, among other things, forwhich the author, inventor, or designer may obtain copyright, which is to secure him the sole privilegeof reprinting, publishing, copying, and vending the same. That defendant is liable, under that sectionand section 4965, there can be no question if those sections are valid as they relate to photographs.Accordingly, the two assignments of error in this Court by plaintiff in error are:1. That the court below decided that Congress had and has the constitutional right to protectphotographs and negatives thereof by copyright.The second assignment related to the sufficiency of the words "Copyright, 1882, by N. Sarony," in thephotographs, as a notice of the copyright of Napoleon Sarony under the act of Congress on thatsubject.



With regard to this latter question, it is enough to say that the object of the statute is to give notice ofthe copyright to the public by placing upon each copy, in some visible shape, the name of the author,the existence of the claim of exclusive right, and the date at which this right was obtained.This notice is sufficiently given by the words "Copyright, 1882, by N. Sarony," found on each copy ofthe photograph. It clearly shows that a copyright is asserted, the date of which is 1882, and if thename Sarony alone was used, it would be aPage 111 U. S. 56sufficient designation of the author until it is shown that there is some other Sarony.

When, in addition to this, the initial letter of the Christian name Napoleon is also given, the notice iscomplete.The constitutional question is not free from difficulty.The eighth section of the first article of the Constitution is the great repository of the powers ofCongress, and by the eight clause of that section Congress is authorized"To promote the progress of science and useful arts by securing for limited times to authors andinventors the exclusive right to their respective writings and discoveries."The argument here is that a photograph is not a writing nor the production of an author. Under theacts of Congress designed to give effect to this section, the persons who are to be benefited aredivided into two classes -- authors and inventors. The monopoly which is granted to the former iscalled a copyright; that given to the latter, letters patent, or, in the familiar language of the present

day, patent right.We have then copyright and patent right, and it is the first of these under which plaintiff asserts aclaim for relief.It is insisted in argument that, a photograph being a reproduction, on paper, of the exact features ofsome natural object or of some person, is not a writing of which the producer is the author.Section 4952 of the Revised Statutes places photographs in the same class as things which may becopyrighted with"books, maps, charts, dramatic or musical compositions, engravings, cuts, prints, paintings, drawings,statues, statuary, and models or designs intended to be perfected as works of the fine arts.""According to the practice of legislation in England and America," says Judge Bouvier, 2 LawDictionary 363,

"the copyright is confined to the exclusive right secured to the author or proprietor of a writing ordrawing which may be multiplied by the arts of printing in any of its branches."The first Congress of the United States, sitting immediately after the formation of the Constitution,enacted that the"author or authors of any map, chart, book, or books, being aPage 111 U. S. 57citizen or resident of the United States, shall have the sole right and liberty of printing, reprinting,publishing, and vending the same for the period of fourteen years from the recording of the titlethereof in the clerk's office, as afterwards directed."1 Stat. 124, 1.This statute not only makes maps and charts subjects of copyright, but mentions them before books

in the order of designation. The second section of an act to amend this act, approved April 29, 18022 Stat. 171, enacts that from the first day of January thereafter, he who shall invent and design,engrave, etch, or work, or from his own works shall cause to be designed and engraved, etched, orworked, any historical or other print or prints shall have the same exclusive right for the term offourteen years from recording the title thereof as prescribed by law.By the first section of the Act of February 3, 1831, 4 Stat. 436, entitled "An act to amend the severalacts respecting copyright, musical compositions, and cuts, in connection with prints and engravings,"are added, and the period of protection is extended to twenty-eight years. The caption or title of thisact uses the word "copyright" for the first time in the legislation of Congress.The construction placed upon the Constitution by the first act of 1790 and the act of 1802, by the menwho were contemporary with its formation, many of whom were members of the convention which



framed it, is of itself entitled to very great weight, and when it is remembered that the rights thusestablished have not been disputed during a period of nearly a century, it is almost conclusive.Unless, therefore, photographs can be distinguished in the classification of this point from the maps,charts, designs, engravings, etchings, cuts, and other prints, it is difficult to see why Congress cannotmake them the subject of copyright as well as the others.These statutes certainly answer the objection that books only, or writing, in the limited sense of abook and its author, are within the constitutional provision. Both these words are susceptible of amore enlarged definition than this. An author in

Page 111 U. S. 58that sense is "he to whom anything owes its origin; originator; maker; one who completes a work ofscience or literature." Worcester. So also no one would now claim that the word "writing" in thisclause of the Constitution, though the only word used as to subjects in regard to which authors are tobe secured, is limited to the actual script of the author, and excludes books and all other printedmatter. By writings in that clause is meant the literary productions of those authors, and Congressvery properly has declared these to include all forms of writing, printing, engravings, etchings, etc., bywhich the ideas in the mind of the author are given visible expression. The only reason whyphotographs were not included in the extended list in the act of 1802 is probably that they did notexist, as photography, as an art, was then unknown, and the scientific principle on which it rests, andthe chemicals and machinery by which it is operated, have all been discovered long since that statute

was enacted.Nor is it supposed that the framers of the Constitution did not understand the nature of copyright andthe objects to which it was commonly applied, for copyright, as the exclusive right of a man to theproduction of his own genius or intellect, existed in England at that time, and the contest in theEnglish courts, finally decided, by a very close vote in the House of Lords, whether the statute of 8Anne, c.19, which authorized copyright for a limited time, was a restraint to that extent on thecommon law or not, was then recent. It had attracted much attention, as the judgment of the King'sBench, delivered by Lord Mansfield, holding it was not such a restraint, in Millar v. Taylor, 4 Burrows2303, decided in 1769, was overruled on appeal in the House of Lords in 1774. Id., 2408. In this andother cases, the whole question of the exclusive right to literary and intellectual productions had beenfreely discussed.

We entertain no doubt that the Constitution is broad enough to cover an act authorizing copyright ofphotographs, so far as they are representatives of original intellectual conceptions of the author.But it is said that an engraving, a painting, a print, does embodyPage 111 U. S. 59the intellectual conception of its author, in which there is novelty, invention, originality, and thereforecomes within the purpose of the Constitution in securing its exclusive use or sale to its author, while aphotograph is the mere mechanical reproduction of the physical features or outlines of some object,animate or inanimate, and involves no originality of thought or any novelty in the intellectual operationconnected with its visible reproduction in shape of a picture. That while the effect of light on theprepared plate may have been a discovery in the production of these pictures, and patents couldproperly be obtained for the combination of the chemicals, for their application to the paper or other

surface, for all the machinery by which the light reflected from the object was thrown on the preparedplate, and for all the improvements in this machinery, and in the materials, the remainder of theprocess is merely mechanical, with no place for novelty, invention, or originality. It is simply themanual operation, by the use of these instruments and preparations, of transferring to the plate thevisible representation of some existing object, the accuracy of this representation being its highestmerit.This may be true in regard to the ordinary production of a photograph, and that in such case, acopyright is no protection. On the question as thus stated we decide nothing.In regard, however, to the kindred subject of patents for invention, they cannot, by law, be issued tothe inventor until the novelty, the utility, and the actual discovery or invention by the claimant havebeen established by proof before the Commissioner of Patents, and when he has secured such a



patent, and undertakes to obtain redress for a violation of his right in a court of law, the question ofinvention, of novelty, of originality is always open to examination. Our copyright system has no suchprovision for previous examination by a proper tribunal as to the originality of the book, map, or othermatter offered for copyright. A deposit of two copies of the article or work with the Librarian ofCongress, with the name of the author and its title page, is all that is necessary to secure a copyrightIt is therefore much more important that when the supposed author sues for a violation of hiscopyright, thePage 111 U. S. 60

existence of those facts of originality, of intellectual production, of thought, and conception on the partof the author should be proved than in the case of a patent right. In the case before us, we think thishas been done.The third finding of facts says, in regard to the photograph in question, that it is a"useful, new, harmonious, characteristic, and graceful picture, and that plaintiff made the same . . entirely from his own original mental conception, to which he gave visible form by posing the saidOscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other variousaccessories in said photograph, arranging the subject so as to present graceful outlines, arrangingand disposing the light and shade, suggesting and evoking the desired expression, and from suchdisposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit."These findings, we think, show this photograph to be an original work of art, the product of plaintiff's

intellectual invention, of which plaintiff is the author, and of a class of inventions for which theConstitution intended that Congress should secure to him the exclusive right to use, publish, and sellas it has done by section 4952 of the Revised Statutes.The question here presented is one of first impression under our Constitution, but an instructive caseof the same class is that of Nottage v. Jackson, 11 Q.B.D. 627, decided in that court on appeal,August, 1883.The first section of the Act of 25 & 26, Vict. c. 68, authorizes the author of a photograph, upon makingregistry of it under the Copyright Act of 1882, to have a monopoly of its reproduction andmultiplication during the life of the author.The plaintiffs in that case described themselves as the authors of the photograph which was piratedin the registration of it. It appeared that they had arranged with the captain of the Australian cricketers

to take a photograph of the whole team in a group, and they sent one of the artists in their employfrom London to some country town to do it. The question in the case was whether the plaintiffs, whoowned the establishment in London where the photographsPage 111 U. S. 61were made from the negative and were sold, and who had the negative taken by one of their men,were the authors or the man who, for their benefit, took the negative. It was held that the latter wasthe author, and the action failed because plaintiffs had described themselves as authors.Brett, M.R., said in regard to who was the author:"The nearest I can come to is that it is the person who effectively is as near as he can be the cause ofthe picture which is produced -- that is, the person who has superintended the arrangement, who hasactually formed the picture by putting the persons in position, and arranging the place where the

people are to be -- the man who is the effective cause of that."Lord Justice Cotton said:"In my opinion, 'author' involves originating, making, producing, as the inventive or mastermind, thething which is to be protected, whether it be a drawing, or a painting, or a photograph,"and Lord Justice Bowen says that photography is to be treated for the purposes of the act as an art,and the author is the man who really represents, creates, or gives effect to the idea, fancy, orimagination.The appeal of plaintiffs from the original judgment against them was accordingly dismissed.These views of the nature of authorship and of originality, intellectual creation, and right to protectionconfirm what we have already said.The judgment of the circuit court is accordingly affirmed.



Official Supreme Court caselaw is only found in the print version of the United States Reports. Justiacaselaw is provided for general informational purposes only, and may not reflect current legaldevelopments, verdicts or settlements. We make no warranties or guarantees about the accuracy,completeness, or adequacy of the information contained on this site or information linked to from thissite. Please check official sources.191 F.2d 99: Alfred Bell & Co. Ltd. v. Catalda Fine Arts, Inc. et al1. Congressional power to authorize both patents and copyrights is contained in Article 1, Sec. 8 ofthe Constitution.1 In passing on the validity of patents, the Supreme Court recurrently insists that this

constitutional provision governs. On this basis, pointing to the Supreme Court's consequentrequirement that, to be valid, a patent must disclose a high degree of uniqueness, ingenuity andinventiveness, the defendants assert that the same requirement constitutionally governs copyrightsAs several sections of the Copyright Act- e.g., those authorizing copyrights of 'reproductions of worksof art,' maps, and compilations- plainly dispense with any such high standard, defendants are, ineffect, attacking the constitutionality of those sections. But the very language of the Constitutiondifferentiates (a) 'authors' and their 'writings' from (b) 'inventors' and their 'discoveries.' Those whopenned the Constitution,2 of course, knew the difference. The pre-revolutionary English statutes hadmade the distinction.3 In 1783, the Continental Congress had passed a resolution recommending thatthe several states enact legislation to 'secure' to authors the 'copyright' of their books.4 Twelve of thethirteen states (in 1783-1786) enacted such statutes.5 Those of Connecticut and North Carolina

covered books, pamphlets, maps, and charts.6

2Moreover, in 1790, in the year after the adoption of the Constitution, the first Congress enacted twostatutes, separately dealing with patents and copyrights. The patent statute, enacted April 10, 1790, 1Stat. 109, provided that patents should issue only if the Secretary of State, Secretary of War and theAttorney General, or any two of them 'shall deem the invention or discovery sufficiently useful andimportant'; the applicant for a patent was obliged to file a specification 'so particular' as 'to distinguishthe invention or discovery from other things before known and used * * * '; the patent was to constituteprima facie evidence that the patentee was 'the first and true inventor or * * * discoverer * * * of thething so specified.'7 The Copyright Act, enacted May 31, 1790, 1 Stat. 124, covered 'maps, chartsand books'. A printed copy of the title of any map, chart or book was to be recorded in the Clerk's

office of the District Court, and a copy of the map, chart or book was to be delivered to the Secretaryof State within six months after publication. Twelve years later, Congress in 1802, 2 Stat. 171, added,to matters that might be copyrighted, engravings, etchings and prints.3Thus legislators peculiarly familiar with the purpose of the Constitutional grant by statute, imposed farless exacting standards in the case of copyrights. They authorized the copyrighting of a mere mapwhich, patently, calls for no considerable uniqueness. They exacted far more from an inventor. And,while they demanded that an official should be satisfied as to the character of an invention before apatent issued, they made no such demand in respect of a copyright. In 1884, in Burrow-GilesLithographic Co. v. Sarony, 111 U.S. 53, 57, 4 S.Ct. 279, 28 L.Ed. 349, the Supreme Court, advertingto these facts said: 'The construction placed upon the constitution by the first act of 1790 and the act

of 1802, by the men who were contemporary with its formation, many of whom were members of theconvention which framed it, is of itself entitled to very great weight, and when it is remembered thatthe rights thus established have not been disputed during a period of nearly a century, it is almostconclusive.' Accordingly, the Constitution, as so interpreted, recognizes that the standards for patentsand copyrights are basically different.4The defendants' contention apparently results from the ambiguity of the word 'original'. It may meanstartling, novel or unusual, a marked departure from the past. Obviously this is not what is meantwhen one speaks of 'the original package,' or the 'original bill,' or (in connection with the 'bestevidence' rule) an 'original' document; none of those things is highly unusual in creativeness. 'Originalin reference to a copyrighted work means that the particular work 'owes its origin' to the 'author. '8 No

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large measure of novelty is necessary. Said the Supreme Court in Baker v. Selden, 101 U.S. 99, 102103, 25 L.Ed. 841: 'The copyright of the book, if not pirated from other works, would be valid withoutregard to the novelty, or want of novelty, of its subject-matter. The novelty of the art or thing describedor explained has nothing to do with the validity of the copyright. To give to the author of the book anexclusive property in the art described therein, when no examination of its novelty has ever beenofficially made, would be a surprise and a fraud upon the public. That is the province of letters-patentnot of copyright. The claim to an invention or discovery of an art or manufacture must be subjected tothe examination of the Patent Office before an exclusive right therein can be obtained; and it can only

be secured by a patent from the government. The difference between the two things, letters-patentand copyright, may be illustrated by reference to the subjects just enumerated. Take the case ofmedicines. Certain mixtures are found to be of great value in the healing art. If the discoverer writesand publishes a book on the subject (as regular physicians generally do), he gains no exclusive rightto the manufacture and sale of the medicine; he gives that to the public. If he desires to acquire suchexclusive right, he must obtain a patent for the mixture as a new art, manufacture, or composition ofmatter. He may copyright his book, if he pleases; but that only secures to him the exclusive right ofprinting and publishing his book. So of all other inventions or discoveries.'5In Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 252, 23 S.Ct. 298, 47 L.Ed. 460, theSupreme Court cited with approval Henderson v. Tompkins, C.C., 60 F. 758, where it was said, 60

F.at page 764: 'There is a very broad distinction between what is implied in the word 'author,' found inthe constitution, and the word 'inventor.' The latter carries an implication which excludes the results ofonly ordinary skill, while nothing of this is necessarily involved in the former. Indeed, the statutesthemselves make broad distinctions on this point. So much as relates to copyrights * * * is expressed,so far as this particular is concerned, by the mere words, 'author, inventor, designer or proprietor,with such aid as may be derived from the words 'written, composed or made,' * * * . But a multitude ofbooks rest safely under copyright, which show only ordinary skill and diligence in their preparation.Compiliations are noticeable examples of this fact. With reference to this subject, the courts have notundertaken to assume the functions of critics, or to measure carefully the degree of originality, orliterary skill or training involved.'9 6

It is clear, then, that nothing in the Constitution commands that copyrighted matter be strikinglyunique or novel. Accordingly, we were not ignoring the Constitution when we stated that a 'copy ofsomething in the public domain' will support a copyright if it is a 'distinguishable variation';10 or whenwe rejected the contention that 'like a patent, a copyrighted work must be not only original, but new'adding, 'That is not * * * the law as is obvious in the case of maps or compendia, where later workswill necessarily be anticipated.'11 All that is needed to satisfy both the Constitution and the statute isthat the 'author' contributed something more than a 'merely trivial' variation, something recognizably'his own.'12 Originality in this context 'means little more than a prohibition of actual copying. '13 Nomatter how poor artistically the 'author's' addition, it is enough if it be his own. Bleistein v. DonaldsonLithographing Co., 188 U.S. 239, 250, 23 S.Ct. 298, 47 L.Ed. 460.7

On that account, we have often distinguished between the limited protection accorded a copyrightowner and the extensive protection granted a patent owner. So we have held that 'independentreproduction of a copyrighted * * * work is not infringement',14 whereas it is vis a vis a patent.Correlative with the greater immunity of a patentee is the doctrine of anticipation which does not applyto copyrights: The alleged inventor is chargeable with full knowledge of all the prior art, although infact he may be utterly ignorant of it. The 'author' is entitled to a copyright if he independently contriveda work completely identical with what went before; similarly, although he obtains a valid copyright, hehas no right to prevent another from publishing a work identical with his, if not copied from his. Apatentee, unlike a copyrightee, must not merely produce something 'original'; he must also be 'thefirst inventor or discoverer.'15 'Hence it is possible to have a plurality of valid copyrights directed to










































closely identical or even identical works. Moreover, none of them, if independently arrived at withoutcopying, will constitute an infringement of the copyright of the others.'16 8The difference between patents and copyrights is neatly illustrated in the design patent cases.17 Wehave held that such a patent is invalid unless it involves 'a step beyond the prior art', including what istermed 'inventive genius.' A.C. Gilbert Co. v. Shemitz, 2 Cir., 45 F.2d 98, 99. We have noted that, asin all patents, there must be a substantial advance over the prior art. Neufeld-Furst & Co. v. Jay-DayFrocks, 2 Cir.,112 F.2d 715, 716. We have suggested that relief for designers could be obtained if

they were permitted to copyright their designs, and that, until there is an amendment to the copyrightstatute, 'new designs are open to all, unless their production demands some salient ability.' Nat LewisPurses v. Carole Bars, 2 Cir., 83 F.2d 475, 476. We have noted that if designers obtained such astatute, it would give them 'a more limited protection and for that reason easier to obtain. * * * ' Whitev. Leanore Frocks, Inc., 2 Cir.,120 F.2d 113, 115.18 92. We consider untenable defendants' suggestion that plaintiff's mezzotints could not validly becopyrighted because they are reproductions of works in the public domain. Not only does the Actinclude 'Reproductions of a work or art',19 but- while prohibiting a copyright of 'the original text of anywork * * * in the public domain'20 - it explicitly provides for the copyrighting of 'translations, or otherversions of works in the public domain'.21 The mezzotints were such 'versions.' They 'originated' with

those who make them, and- on the trial judge's findings well supported by the evidence- amply methe standards imposed by the Constitution and the statute.22 There is evidence that they were notintended to, and did not, imitate the paintings they reproduced. But even if their substantiadepartures from the paintings were inadvertent, the copyrights would be valid.23 A copyist's badeyesight or defective musculature, or a shock caused by a clap of thunder, may yield sufficientlydistinguishable variations.24 Having hit upon such a variation unintentionally, the 'author' may adopt itas his and copyright it.25 10Accordingly, defendants' arguments about the public domain become irrelevant. They could berelevant only in their bearing on the issue of infringement, i.e., whether the defendants copied themezzotints.26 But on the findings, again well grounded in the evidence, we see no possible doubt that

defendants, who did deliberately copy the mezzotints, are infringers. For a copyright confers theexclusive right to copy the copyrighted work- a right not to have others copy it. Nor were thecopyrights lost because of the reproduction of the mezzotints in catalogues.27 113. We think the defendants did not establish the anti-trust 'unclean-hands' defense: (1) The Guild'sprice-fixing provision was explicitly confined to Great Britain and Ireland, and did not affect sales inthe United States. (2) As to the Guild agreement to restrict output,28 there are some considerationsOf some 600 or 700 members, according to the testimony only 'one or two' are in this country, for althat the slender proof shows, their participation in Guild activities may have been limited to the receiptof Guild catalogues; the plaintiff has no office or assets here, and there is no evidence that it actedhere on behalf of the Guild. So far as the evidence discloses, the output restriction was not imposed

with sales in the United States in mind. Accordingly, we take it that the restriction was meant to have,and did have, at most, only an incidental, peripheral, reference to sales in the United States ofAmerica.29 All the foregoing is important since recently the Supreme Court, in similar contexts, hasgiven the 'unclean hands' doctrine a somewhat narrowed scope. Kiefer-Stewart Co. v. Joseph E.Seagram & Sons, Inc., 340 U.S. 211, 214,30 71 S.Ct. 259. We have here a conflict of policies: (a) thatof preventing piracy of copyrighted matter and (b) that of enforcing the anti-trust laws. We mustbalance the two, taking into account the comparative innocence or guilt of the parties, the moralcharacter of their respective acts, the extent of the harm to the public interest, the penalty inflicted onthe plaintiff if we deny it relief. As the defendants' piracy is unmistakably clear, while the plaintiffsinfraction of the anti-trust laws is doubtful and at most marginal, we think the enforcement of the firstpolicy should outweigh enforcement of the second.31






































































124. The trial judge did not 'abuse' his discretion as to the allowance or amount of attorneys' fees. Weagree with his rulings, and his reasons therefor, concerning the items of accounting for profits- withbut one exception: We think he erred in allowing defendants to deduct their income taxes. He said,'The nature of defendants' acts is, of course darkened somewhat by the use of a false copyright label,by sales after notice, and by the defendant Lithograph's apparent unconcern over the validity of theplaintiff's copyright, so long as defendants Catalda Company and Catalda were willing to indemnifyLithograph'; he also said that defendants 'were not innocent of knowledge of the claimed copyright by

the plaintiff of the subjects in suit.' Nevertheless, he held that 'their villainy is not of the deepest dye inthat the copying was open, and with no attempt at concealment, under a good-faith claim of a right tocopy because of the claimed invalidity of the plaintiff's copyright.' With that last conclusion wedisagree. Open and unabashed piracy is not a mark of good faith; and we think the 'claimed invalidityunjustified.32In these circumstances, the deduction of the taxes was improper.33 To that extent onlythe judgment is modified; otherwise it is affirmed.

FEIST PUBLICATIONS, INC. v. RURAL TEL. SERVICE CO., 499 U.S. 340 (1991)499 U.S. 340

FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE CO., INC.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 89-1909

Argued January 9, 1991Decided March 27, 1991

Respondent Rural Telephone Service Company is a certified public utility providing telephone serviceto several communities in Kansas. Pursuant to state regulation, Rural publishes a typical telephonedirectory, consisting of white pages and yellow pages. It obtains data for the directory fromsubscribers, who must provide their names and addresses to obtain telephone service. PetitionerFeist Publications, Inc., is a publishing company that specializes in area-wide telephone directoriescovering a much larger geographic range than directories such as Rural's. When Rural refused tolicense 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 Feistaltered 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 telephonedirectories 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 constituteinfringement. Pp. 344-364.(a) Article I, 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. Sincefacts do not owe their origin to an act of authorship, they are not original, and thus are notcopyrightable. Although a compilation of facts may possess the requisite originality because theauthor typically chooses which facts to include, in what order to place them, and how to arrange thedata 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 dichotomyseverely limits the scope of protection in fact-based works. Pp. 344-351.(b) The Copyright Act of 1976 and its predecessor, the Copyright Act of 1909, leave no doubt thatoriginality is the touchstone of copyright protection in directories and other fact-based works. The1976 Act explains that copyright extends to "original works of authorship," 17 U.S.C. 102(a), and thatthere can be no copyright in facts, 102(b). [499 U.S. 340, 341] A compilation is not copyrightable perse, but is copyrightable only if its facts have been "selected, coordinated, or arranged in such a waythat the resulting work as a whole constitutes an original work of authorship." 101 (emphasis added).Thus, the statute envisions that some ways of selecting, coordinating, and arranging data are notsufficiently original to trigger copyright protection. Even a compilation that is copyrightable receivesonly limited protection, for the copyright does not extend to facts contained in the compilation. 103(b).











Lower courts that adopted a "sweat of the brow" or "industrious collection" test - which extended acompilation'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 maycopyright facts or ideas. Pp. 351-361.(c) Rural's white pages do not meet the constitutional or statutory requirements for copyrightprotection. While Rural has a valid copyright in the directory as a whole because it contains someforward text and some original material in the yellow pages, there is nothing original in Rural's whitepages. 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 creativitynecessary to transform mere selection into copyrightable expression. In fact, it is plausible toconclude 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 aboutarranging names alphabetically in a white pages directory. It is an age-old practice, firmly rooted intradition and so commonplace that it has come to be expected as a matter of course. Pp. 361-364.916 F.2d 718, reversed.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., concurredin the judgment.

Kyler Knobbe argued the cause and filed briefs for petitioner.James M. Caplinger, Jr., argued the cause and filed a brief for respondent. *[ Footnote * ] Briefs of amici curiae urging reversal were filed for the Association of North AmericanDirectory Publishers et al. by Theodore Case Whitehouse; for the International Association of CrossReference Directory Publishers [499 U.S. 340, 342] by Richard D. Grauer and Kathleen McCreeLewis; and for the Third-Class Mail Association by Ian D. Volner.Briefs of amici curiae urging affirmance were filed for Ameritech et al. by Michael K. Kellogg, CharlesRothfeld, Douglas J. Kirk, Thomas P. Hester, and Harlan Sherwat; for Association of AmericanPublishers, Inc., by Robert G. Sugarman and R. Bruce Rich; for GTE Corp. by Kirk K. Van Tine,Richard M. Cahill, and Edward R. Sublett; for the National Telephone Cooperative Association by L.Marie Guillory and David Cosson; for the United States Telephone Association by Richard J.

Rappaport and Keith P. Schoeneberger; and for West Publishing Co. by Vance K. Opperman andJames E. Schatz.Briefs of amici curiae were filed for Bellsouth Corp. by Anthony B. Askew, Robert E. Richards, WalterH. Alford, and Vincent L. Sgrosso; for Direct Marketing Association, Inc., by Robert L. Sherman; forHaines and Co., Inc., by Jeremiah D. McAuliffe, Bernard A. Barken, and Eugene Gressman; and forthe Information Industry Association et al. by Steven J. Metalitz and Angela Burnett. [499 U.S. 340,342]JUSTICE O'CONNOR delivered the opinion of the Court.This case requires us to clarify the extent of copyright protection available to telephone directorywhite pages.

I

Rural Telephone Service Company is a certified public utility that provides telephone service toseveral communities in northwest Kansas. It is subject to a state regulation that requires all telephonecompanies operating in Kansas to issue annually an updated telephone directory. Accordingly, as acondition of its monopoly franchise, Rural publishes a typical telephone directory, consisting of whitepages 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 subscribersalphabetically by category, and feature classified advertisements of various sizes. Rural distributes itsdirectory 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 [499 U.S. 340, 343] directory, which covers only a particular calling area, Feist'sarea-wide directories cover a much larger geographical range, reducing the need to call directory

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assistance or consult multiple directories. The Feist directory that is the subject of this litigation covers11 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 ofcharge and includes both white pages and yellow pages. Feist and Rural compete vigorously foryellow pages advertising.As the sole provider of telephone service in its service area, Rural obtains subscriber informationquite easily. Persons desiring telephone service must apply to Rural and provide their names andaddresses; 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. Toobtain white pages listings for its area-wide directory, Feist approached each of the 11 telephonecompanies operating in northwest Kansas and offered to pay for the right to use its white pageslistings.Of the 11 telephone companies, only Rural refused to license its listings to Feist. Rural's refusalcreated a problem for Feist, as omitting these listings would have left a gaping hole in its area-widedirectory, rendering it less attractive to potential yellow pages advertisers. In a decision subsequent tothat which we review here, the District Court determined that this was precisely the reason Ruralrefused to license its listings. The refusal was motivated by an unlawful purpose "to extend itsmonopoly in telephone service to a monopoly in yellow pages advertising." Rural Telephone ServiceCo. 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 beganby 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 [499 U.S. 340,344] the data reported by Rural and sought to obtain additional information. As a result, a typicalFeist listing includes the individual's street address; most of Rural's listings do not. Notwithstandingthese additions, however, 1,309 of the 46,878 listings in Feist's 1983 directory were identical tolistings in Rural's 1982-1983 white pages. App. 54 (15-16), 57. Four of these were fictitious listingsthat 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 positionthat Feist, in compiling its own directory, could not use the information contained in Rural's whitepages. 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 effortswere economically impractical and, in any event, unnecessary, because the information copied wasbeyond 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 citinga string of lower court decisions. 663 F.Supp. 214, 218 (1987). In an unpublished opinion, the Courtof 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 (1990), to determine whether the copyright in Rural's directory protects the names, towns, andtelephone numbers copied by Feist.

II. AThis 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 propositionspossesses an impeccable pedigree. That there can be no valid copyright in facts is universallyunderstood. The most fundamental axiom of copyright law is that [499 U.S. 340, 345] "[n]o authormay copyright his ideas or the facts he narrates." Harper & Row, Publishers, Inc. v. NationEnterprises, 471 U.S. 539, 556(1985). Rural wisely concedes this point, noting in its brief that "[f]actsand discoveries, of course, are not themselves subject to copyright protection." Brief for Respondent24. At the same time, however, it is beyond dispute that compilations of facts are within the subjectmatter of copyright. Compilations were expressly mentioned in the Copyright Act of 1909, and againin the Copyright Act of 1976.There is an undeniable tension between these two propositions. Many compilations consist of nothingbut raw data - i.e., wholly factual information not accompanied by any original written expression. On

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what basis may one claim a copyright in such a work? Common sense tells us that 100uncopyrightable facts do not magically change their status when gathered together in one place. Yetcopyright law seems to contemplate that compilations that consist exclusively of facts are potentiallywithin its scope.The key to resolving the tension lies in understanding why facts are not copyrightable. The sine quanon of copyright is originality. To qualify for copyright protection, a work must be original to the author.See Harper & Row, supra, at 547-549. Original, as the term is used in copyright, means only that thework 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 2.01[A],[B] (1990) (hereinafter Nimmer). To be sure, the requisite level of creativity is extremely low; even aslight amount will suffice. The vast majority of works make the grade quite easily, as they possesssome creative spark, "no matter how crude, humble or obvious" it might be. Id. 1.08[C]1.. Originalitydoes not signify novelty; a work may be original even though it closely resembles other works, so longas the similarity is fortuitous, not the result of copying. To illustrate, [499 U.S. 340, 346] assume thattwo poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both areoriginal 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 isArticle I, 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 19thCentury - The Trade-Mark Cases, 100 U.S. 82 (1879); and Burrow-Giles Lithographic Co. v.Sarony, 111 U.S. 53 (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 particularwork to be classified "under the head of writings of authors," the Court determined, "originality isrequired." 100 U.S. at 94. The Court explained that originality requires independent creation plus amodicum of creativity: "[W]hile the word writings may be liberally construed, as it has been, to includeoriginal designs for engraving, prints, &c., it is only such as are original, and are founded in thecreative 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. (emphasis in original).

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 owesits origin; originator; maker." 111 U.S. at 58 (internal quotations omitted). As in The Trade-MarkCases, the Court emphasized the creative component of originality. It described copyright as beinglimited to "original intellectual conceptions of the author," 111 U.S., at 58 , and stressed theimportance of requiring an author who accuses another of infringement to prove "the existence [499U.S. 340, 347] of those facts of originality, of intellectual production, of thought, and conception." Id.Id., at 59-60.The originality requirement articulated in The Trade-Mark Cases and Burrow-Giles remains thetouchstone of copyright protection today. See Goldstein v. California, 412 U.S. 546, 561 -562 (1973).It is the very "premise of copyright law." Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1368

(CA5 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 StatutoryCompilations, 36 UCLA L.Rev. 719, 763, n. 155 (1989) (emphasis in original) (hereinafter Patterson &Joyce). Accord, id. at 759-760, and n. 140; Nimmer 1.06[A] ("originality is a statutory as well as aconstitutional requirement"); id. 1.08[C]1. ("a modicum of intellectual labor . . . clearly constitutes anessential constitutional element").It is this bedrock principle of copyright that mandates the law's seemingly disparate treatment of factsand factual compilations. "No one may claim originality as to facts." Id. 2.11[A], p. 2-157. This isbecause facts do not owe their origin to an act of authorship. The distinction is one between creationand discovery: the first person to find and report a particular fact has not created the fact; he or she

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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 . "The discoverer merely finds and records." Nimmer 2.03[E].Census-takers, for example, do not "create" the population figures that emerge from their efforts; in asense, they copy these figures from the world around them. Denicola, Copyright in Collections ofFacts: 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 [499 U.S. 340, 348] 2.03[E]. The same is true of allfacts - 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 authortypically chooses which facts to include, in what order to place them, and how to arrange thecollected data so that they may be used effectively by readers. These choices as to selection andarrangement, so long as they are made independently by the compiler and entail a minimal degree ofcreativity, are sufficiently original that Congress may protect such compilations through the copyrightlaws. Nimmer 2.11[D], 3.03; Denicola 523, n. 38. Thus, even a directory that contains absolutely noprotectible written expression, only facts, meets the constitutional minimum for copyright protection ifit features an original selection or arrangement. See Harper & Row, 471 U.S., at 547 . Accord,Nimmer 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 ofcopyright; accordingly, copyright protection may extend only to those components of a work that areoriginal 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 ofwords, he or she may be able to claim a copyright in this written expression. Others may copy theunderlying 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 barehistorical facts from his autobiography, see 471 U.S. at 556-557, but that he could prevent othersfrom copying his "subjective descriptions and portraits of public figures." [499 U.S. 340, 349] Id. at563. 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 mannerin which the compiler has selected and arranged the facts. Thus, if the selection and arrangement areoriginal, these elements of the work are eligible for copyright protection. See Patry, Copyright inCompilations 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 donot become original through association. See Patterson & Joyce 776.This inevitably means that the copyright in a factual compilation is thin. Notwithstanding a validcopyright, a subsequent compiler remains free to use the facts contained in another's publication toaid in preparing a competing work, so long as the competing work does not feature the sameselection and arrangement. As one commentator explains it: "[N]o matter how much originalauthorship 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 orreshuffled by second comers, even if the author was the first to discover the facts or to propose theideas." Ginsburg 1868.It may seem unfair that much of the fruit of the compiler's labor may be used by others withoutcompensation. As Justice Brennan has correctly observed, however, this is not "some unforeseenbyproduct of a statutory scheme." Harper & Row, 471 U.S., at 589 (dissenting opinion). It is, rather,"the essence of copyright," ibid. and a constitutional requirement. The primary objective of copyrightis not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." Art. I,8, cl. 8. Accord, Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). To this end,copyright assures authors the right to their original [499 U.S. 340, 350] expression, but encouragesothers to build freely upon the ideas and information conveyed by a work. Harper & Row, supra, at



















556-557. This principle, known as the idea/expression or fact/expression dichotomy, applies to allworks of authorship. As applied to a factual compilation, assuming the absence of original writtenexpression, only the compiler's selection and arrangement may be protected; the raw facts may becopied at will. This result is neither unfair nor unfortunate. It is the means by which copyrightadvances the progress of science and art.This Court has long recognized that the fact/expression dichotomy limits severely the scope ofprotection in fact-based works. More than a century ago, the Court observed: "The very object ofpublishing 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 withoutincurring the guilt of piracy of the book." Baker v. Selden, 101 U.S. 99, 103 (1880). We reiterated thispoint in Harper & Row:"[N]o author may copyright facts or ideas. The copyright is limited to those aspects of the work -termed èxpression' - that display the stamp of the author's originality."[C]opyright does not prevent subsequent users from copying from a prior author's work thoseconstituent 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., at547-548 (citation omitted).This, then, resolves the doctrinal tension: Copyright treats facts and factual compilations in a whollyconsistent 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 selectionor arrangement of facts, but the copyright is limited to [499 U.S. 340, 351] the particular selection orarrangement. In no event may copyright extend to the facts themselves.

BAs 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 ambiguouslanguage 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 Nimmer2.01. The subject matter of copyright was set out in 3 and 4 of the Act. Section 4 stated that copyrightwas 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, 8 of the Constitution and defined by the Court in The

Trade-Mark Cases and Burrow-Giles - the statute necessarily incorporated the originality requirementarticulated 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 "thecopyrightable component parts of the work." It thus stated an important copyright principle, but failedto identify the specific characteristic - originality - that determined which component parts of a workwere copyrightable and which were not.Most courts construed the 1909 Act correctly, notwithstanding the less-than-perfect statutorylanguage. They understood from this Court's decisions that there could be no copyright withoutoriginality. See Patterson & Joyce 760-761. As explained in the Nimmer treatise: The 1909 Actneither defined originality nor even expressly required that a work be òriginal' in order to commandprotection. However, the courts uniformly inferred the requirement from the fact that copyright

protection may only be claimed by àuthors'. . . . It was reasoned that, since an author is `the . . . [499U.S. 340, 352] creator, originator,' it follows that a work is not the product of an author unless thework is original. Nimmer 2.01 (footnotes omitted) (citing cases).But some courts misunderstood the statute. See, e.g., Leon v. Pacific Telephone & Telegraph Co., 91F.2d 484 (CA9 1937); Jeweler's Circular Publishing Co. v. Keystone Publishing Co., 281 F. 83 (CA21922). These courts ignored 3 and 4, focusing their attention instead on 5 of the Act. Section 5,however, was purely technical in nature: it provided that a person seeking to register a work shouldindicate on the application the type of work, and it listed 14 categories under which the work mightfall. One of these categories was "[b]ooks, including composite and cyclopoedic works, directories,gazetteers, and other compilations." 5(a). Section 5 did not purport to say that all compilations wereautomatically copyrightable. Indeed, it expressly disclaimed any such function, pointing out that "the

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subject matter of copyright [i]s defined in section four." Nevertheless, the fact that factual compilationswere mentioned specifically in 5 led some courts to infer erroneously that directories and the like werecopyrightable 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 factualcompilations. Known alternatively as "sweat of the brow" or "industrious collection," the underlyingnotion was that copyright was a reward for the hard work that went into compiling facts. The classicformulation 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 dependupon whether the materials which he has collected consist or not of matters which are publici juris, orwhether such materials show literary skill or originality, either in thought or in language, or anythingmore than industrious [499 U.S. 340, 353] collection. The man who goes through the streets of atown and puts down the names of each of the inhabitants, with their occupations and their streetnumber acquires material of which he is the author. (emphasis added).The "sweat of the brow" doctrine had numerous flaws, the most glaring being that it extendedcopyright protection in a compilation beyond selection and arrangement - the compiler's originalcontributions - to the facts themselves. Under the doctrine, the only defense to infringement wasindependent creation. A subsequent compiler was "not entitled to take one word of informationpreviously 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 (internalquotations omitted). "Sweat of the brow" courts thereby eschewed the most fundamental axiom ofcopyright law - that no one may copyright facts or ideas. See Miller v. Universal City Studios, Inc., 650F.2d, at 1372 (criticizing "sweat of the brow" courts because "ensur[ing] that later writers obtain thefacts independently . . . is precisely the scope of protection given . . . copyrighted matter, and the lawis 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 ofthe brow" approach. The best example is International News Service v. Associated Press, 248 U.S.215(1918). In that decision, the Court stated unambiguously that the 1909 Act conferred copyrightprotection only on those elements of a work that were original to the author. International NewsService had conceded taking news reported by Associated Press and publishing it in its own

newspapers. Recognizing that 5 of the Act specifically mentioned "[p]eriodicals, includingnewspapers," 5(b), the Court acknowledged that news articles were copyrightable. Id., at 234. It flatlyrejected, however, the notion that the copyright in an article extended to [499 U.S. 340, 354] thefactual information it contained: "[T]he news element - the information respecting current eventscontained in the literary production - is not the creation of the writer, but is a report of matters thatordinarily are publici juris; it is the history of the day." Ibid. *Without a doubt, the "sweat of the brow" doctrine flouted basic copyright principles. Throughouthistory, copyright law has "recognize[d] a greater need to disseminate factual works than works offiction or fantasy." Harper & Row, 471 U.S. at 563. Accord, Gorman, Fact or Fancy: The Implicationsfor Copyright, 29 J. Copyright Soc. 560, 563 (1982). But "sweat of the brow" courts took a contraryview; 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]tis 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 (CA21966), cert. denied 385 U.S. 1009 (1967). "Protection for the fruits of such research . . . may, incertain circumstances, be available under a theory of unfair competition. But to accord copyrightprotection on this basis alone distorts basic copyright principles in that it creates a monopoly in publicdomain materials without the necessary justification of protecting and encouraging the creation of`writings' by `authors.'" Nimmer 3.04, p. 3-23 (footnote omitted).

C"Sweat of the brow" decisions did not escape the attention of the Copyright Office. When Congressdecided 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 (1985), the Copyright Office promptlyrecommended[499 U.S. 340, 355] that Congress clear up the confusion in the lower courts as to thebasic standards of copyrightability. The Register of Copyrights explained in his first report toCongress that "originality" was a "basic requisit[e]" of copyright under the 1909 Act, but that "theabsence of any reference to [originality] in the statute seems to have led to misconceptions as to whatis 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 suggestedmaking the originality requirement explicit. Ibid.

Congress took the Register's advice. In enacting the Copyright Act of 1976, Congress dropped thereference to "all the writings of an author" and replaced it with the phrase "original works ofauthorship." 17 U.S.C. 102(a). In making explicit the originality requirement, Congress announcedthat 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 ispurposely left undefined, is intended to incorporate without change the standard of originalityestablished 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), (emphasisadded) (hereinafter S. Rep.). This sentiment was echoed by the Copyright Office: "Our intention hereis to maintain the established standards of originality. . . ." Supplementary Report of the Register ofCopyrights 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 tookadditional measures. For example, 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 fordistinguishing [499 U.S. 340, 356] those component parts that were copyrightable from those thatwere not. The 1976 Act deleted this section and replaced it with 102(b), which identifies specificallythose elements of a work for which copyright is not available: "In no case does copyright protectionfor an original work of authorship extend to any idea, procedure, process, system, method ofoperation, 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 anycopyright in facts. Harper Row, supra, at 547, 556. Accord, Nimmer 2.03[E] (equating facts with

"discoveries"). As with 102(a), Congress emphasized that 102(b) did not change the law, but merelyclarified it: "Section 102(b) in no way enlarges or contracts the scope of copyright protection under thepresent law. Its purpose is to restate . . . that the basic dichotomy between expression and idearemains unchanged." H. R. Rep. at 57; S. Rep. at 54.Congress took another step to minimize confusion by deleting the specific mention of "directories . . .and other compilations" in 5 of the 1909 Act. As mentioned, this section had led some courts toconclude that directories were copyrightable per se, and that every element of a directory wasprotected. In its place, Congress enacted two new provisions. First, to make clear that compilationswere not copyrightable per se, Congress provided a definition of the term "compilation." Second, tomake clear that the copyright in a compilation did not extend to the facts themselves, Congressenacted 103.

The definition of "compilation" is found in 101 of the 1976 Act. It defines a "compilation" in thecopyright sense as "a work formed by the collection and assembly of preexisting materials or of datathat are selected, coordinated, or arranged in such a way that the resulting work, as a whole,constitutes an original work of authorship." (Emphasis added.) [499 U.S. 340, 357]The purpose of the statutory definition is to emphasize that collections of facts are not copyrightableper 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 acopyrightable 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 theparticular selection, coordination, or arrangement, of an "original" work of authorship. "[T]his tripartite







misunderstood today: copyright . . . has no effect one way or the other on the copyright or publicdomain status of the preexisting material." H. R. Rep. at 57; S. Rep. at 55. The 1909 Act did notrequire, as "sweat of the brow" courts mistakenly assumed, that each subsequent compiler must startfrom scratch, and is precluded from relying on research undertaken by another. See, e.g., Jeweler'sCircular publishing Co., 281 F., at 88-89. Rather, the facts contained in existing works may be freelycopied, because copyright protects only the elements that owe their origin to the compiler - theselection, 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 [499 U.S. 340, 360] 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 revisionswere a direct response to the Copyright Office's concern that many lower courts had misconstruedthis basic principle, and Congress emphasized repeatedly that the purpose of the revisions was toclarify, not change, existing law. The revisions explain with painstaking clarity that copyright requiresoriginality, 102(a); that facts are never original, 102(b); that the copyright in a compilation does notextend to the facts it contains, 103(b); and that a compilation is copyrightable only to the extent that itfeatures an original selection, coordination, or arrangement, 101.The 1976 revisions have proven largely successful in steering courts in the right direction. A goodexample 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. Copyrightprotection does not extend to the facts themselves, and the mere use of information contained in adirectory without a substantial copying of the format does not constitute infringement" (citationomitted.) Additionally, the Second Circuit, which almost 70 years ago issued the classic formulation ofthe "sweat of the brow" doctrine in Jeweler's Circular Publishing Co., has now fully repudiated thereasoning 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 (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 ofexisting copyright law. See Denicola 516 ("the very vocabulary of copyright is ill [499 U.S. 340,

361] suited to analyzing property rights in works of nonfiction"); id. at 520-521, 525; Ginsburg 1867,1870.

IIIThere is no doubt that Feist took from the white pages of Rural's directory a substantial amount offactual information. At a minimum, Feist copied the names, towns, and telephone numbers of 1,309 ofRural'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 constituentelements of the work that are original. See Harper & Row, 471 U.S., at 548 . The first element is notat issue here; Feist appears to concede that Rural's directory, considered as a whole, is subject to avalid copyright because it contains some foreword text, as well as original material in its yellow pagesadvertisements. 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 taking1,309 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 mayhave been the first to discover and report the names, towns, and telephone numbers of itssubscribers, but this data does not "`ow[e] its origin'" to Rural. Burrow-Giles, 111 U.S., at 58 . Rather,these bits of information are uncopyrightable facts; they existed before Rural reported them, andwould have continued to exist if Rural had never published a telephone directory. The originalityrequirement "rule[s] out protecting . . . names, addresses, and telephone numbers of which theplaintiff, 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 [499 U.S. 340,















362] that the copyright in a compilation does not extend to "the preexisting material employed in thework."The question that remains is whether Rural selected, coordinated, or arranged these uncopyrightablefacts in an original way. As mentioned, originality is not a stringent standard; it does not require thatfacts be presented in an innovative or surprising way. It is equally true, however, that the selectionand 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 thisrequirement is sometimes characterized as modest, or a low threshold, it is not without effect")

(internal quotations omitted; citations omitted). As this Court has explained, the Constitutionmandates some minimal degree of creativity, see The Trade-Mark Cases, 100 U.S., at 94 , and anauthor who claims infringement must prove "the existence of . . . intellectual production, of thought,and conception." Burrow-Giles, supra, at 59-60.The selection, coordination, and arrangement of Rural's white pages do not satisfy the minimumconstitutional standards for copyright protection. As mentioned at the outset, Rural's white pages areentirely typical. Persons desiring telephone service in Rural's service area fill out an application, andRural issues them a telephone number. In preparing its white pages, Rural simply takes the dataprovided by its subscribers and lists it alphabetically by surname. The end product is a garden-varietywhite 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 intocopyrightable expression. Rural expended sufficient effort [499 U.S. 340, 363] to make the whitepages 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 originalityrequirement for another reason. Feist points out that Rural did not truly "select" to publish the namesand telephone numbers of its subscribers; rather, it was required to do so by the Kansas CorporationCommission as part of its monopoly franchise. See 737 F.Supp., at 612. Accordingly, one couldplausibly 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 donothing 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 thenames itself. But there is nothing remotely creative about arranging names alphabetically in a whitepages directory. It is an age-old practice, firmly rooted in tradition and so commonplace that it hascome to be expected as a matter of course. See Brief for Information Industry Association et al. asAmici Curiae 10 (alphabetical arrangement "is universally observed in directories published by localexchange 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 theConstitution.We conclude that the names, towns, and telephone numbers copied by Feist were not original toRural, and therefore were not protected by the copyright in Rural's combined white and yellow pagesdirectory. 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 basicsubscriber information and arranged alphabetically, fall short of the mark. As a statutory matter, 17U.S.C. 101 does not afford protection [499 U.S. 340, 364] from copying to a collection of facts thatare selected, coordinated, and arranged in a way that utterly lacks originality. Given that some worksmust fail, we cannot imagine a more likely candidate. Indeed, were we to hold that Rural's whitepages 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 constituteinfringement. This decision should not be construed as demeaning Rural's efforts in compiling itsdirectory, but rather as making clear that copyright rewards originality, not effort. As this Court notedmore 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 isReversed.JUSTICE BLACKMUN concurs in the judgment.MAURO MALANG SANTOS, plaintiff-appellant,vs.MCCULLOUGH PRINTING COMPANY, defendant-appellee.

Tañada Teehankee & Carreon for plaintiff-appellant.Esposo & Usison for defendant-appellee. PAREDES, J.: This is an action for damages based on the provisions of Articles 721 and 722 of the Civil Code of thePhilippines, allegedly on the unauthorized use, adoption and appropriation by the defendant companyof plaintiff's intellectual creation or artistic design for a Christmas Card. The design depicts "aPhilippine rural Christmas time scene consisting of a woman and a child in a nipa hut adorned with astar-shaped lantern and a man astride a carabao, beside a tree, underneath which appears theplaintiff's pen name, Malang."The complaint alleges that plaintiff Mauro Malang Santos designed for former Ambassador FelinoNeri, for his personal Christmas Card greetings for the year 1959, the artistic motif in question. The

following year the defendant McCullough Printing Company, without the knowledge and authority ofplaintiff, displayed the very design in its album of Christmas cards and offered it for sale, for a price.For such unauthorized act of defendant, plaintiff suffered moral damages to the tune of P16,000.00,because it has placed plaintiff's professional integrity and ethics under serious question and causedhim grave embarrassment before Ambassador Neri. He further prayed for the additional sum ofP3,000.00 by way of attorney's fee.Defendant in answer to the complaint, after some denials and admissions, moved for a dismissal ofthe action claiming that — (1) The design claimed does not contain a clear notice that it belonged to him and that he prohibitedits use by others;(2) The design in question has been published but does not contain a notice of copyright, as in fact it

had never been copyrighted by the plaintiff, for which reason this action is barred by the CopyrightLaw;(3) The complaint does not state a cause of action.The documentary evidence submitted were the Christmas cards, as originally designed by plaintiff,the design as printed for Ambassador Neri, and the subsequent reprints ordered by other parties. Thecase was submitted an a "Stipulation of Fact" the pertinent portions of which are hereunderreproduced:1. That the plaintiff was the artist who created the design shown in Exhibit A, ...2. That the design carries the pen name of plaintiff, MALANG, on its face ... and indicated in ExhibitA, ...3. That said design was created by plaintiff in the latter part of 1959 for the personal use of former

Ambassador Felino Neri; ...4. That former Ambassador Neri had 800 such cards ... printed by the defendant company in 1959, ...which he distributed to his friends in December, 1959;5. That defendant company utilized plaintiff's design in the year 1960 in its album of Christmas cardsamples displayed to its customers ... .6. That the Sampaguita Pictures, Inc., placed an order with defendant company for 700 of said cards... while Raul Urra & Co. ordered 200 ..., which cards were sent out by them to their respectivecorrespondent, clients and friends during the Christmas season of 1960;7. That defendant company's use of plaintiff's design was without knowledge, authority or consent ofplaintiff;8. That said design has not been copyrighted;







9. That plaintiff is an artist of established name, good-will and reputation. ... .Upon the basis of the facts stipulated, the lower court rendered judgment on December 1, 1961, thepertinent portions of which are recited below:As a general proposition, there can be no dispute that the artist acquires ownership of the product ofhis art. At the time of its creation, he has the absolute dominion over it. To help the author protect hisrights the copyright law was enacted.In intellectual creations, a distinction must be made between two classes of property rights; the fact ofauthorship and the right to publish and/or distribute copies of the creation. With regard to the first, i.e.

the fact of authorship, the artist cannot be divested of the same. In other words, he may sell the rightto print hundred of his work yet the purchaser of said right can never be the author of the creation.It is the second right, i.e., the right to publish, republish, multiply and/or distribute copies of theintellectual creation which the state, through the enactment of the copyright law, seeks to protect. Theauthor or his assigns or heirs may have the work copyrighted and once this is legally accomplishedany infringement of the copyright will render the infringer liable to the owner of the copyright.

xxx xxx xxxThe plaintiff in this case did not choose to protect his intellectual creation by a copyright. The fact thatthe design was used in the Christmas card of Ambassador Neri who distributed eight hundred copiesthereof among his friends during the Christmas season of 1959, shows that the, same was published.Unless satisfactorily explained a delay in applying for a copyright, of more than thirty days from the

date of its publication, converts the property to one of public domain.Since the name of the author appears in each of the alleged infringing copies of the intellectualcreation, the defendant may not be said to have pirated the work nor guilty of plagiarismConsequently, the complaint does not state a cause of action against the defendant.

xxx xxx ;xxxWHEREFORE, the Court dismisses the complaint without pronouncement as to costs.In his appeal to this Court, plaintiff-appellant pointed five (5) errors allegedly committed by the trialcourt, all of which bring to the fore, the following propositions: (1) whether plaintiff is entitled toprotection, notwithstanding the, fact that he has not copyrighted his design; (2) whether thepublication is limited, so as to prohibit its use by others, or it is general publication, and (3) whetherthe provisions of the Civil Code or the Copyright Law should apply in the case. We will undertake a

collective discussion of these propositions.Under the established facts, We find that plaintiff is not entitled to a protection, the provision of theCivil Code, notwithstanding. Paragraph 33 of Patent Office Administrative Order No. 3 (as amendeddated September 18, 1947) entitled "Rules of Practice in the Philippines Patent Office relating to theRegistration of Copyright Claims" promulgated pursuant to Republic Act 165, provides, among others,that an intellectual creation should be copyrighted thirty (30) days after its publication, if made inManila, or within sixty (60) day's if made elsewhere, failure of which renders such creation publicproperty. In the case at bar, even as of this moment, there is no copyright for the design in question.We are not also prepared to accept the contention of appellant that the publication of the design wasa limited one, or that there was an understanding that only Ambassador Neri should, have absoluteright to use the same. In the first place, if such were the condition then Ambassador Neri would be the

aggrieved party, and not the appellant. In the second place, if there was such a limited publication orprohibition, the same was not shown on the face of the design. When the purpose is a limitedpublication, but the effect is general publication, irrevocable rights thereupon become vested in thepublic, in consequence of which enforcement of the restriction becomes impossible (Nutt vs. NationalInstitute, 31 F [2d] 236). It has been held that the effect of offering for sale a dress, for examplemanufactured in accordance with an original design which is not protected by either a copyright or apatent, is to divest the owner of his common law rights therein by virtue of the publication of a 'copy'and thereafter anyone is free to copy the design or the dress (Fashion Originators Guild of America v.Federal Trade Commission, 114 F [2d] 80). When Ambassador Neri distributed 800 copies of thedesign in controversy, the plaintiff lost control of his design and the necessary implication was thatthere had been a general publication, there having been no showing of a clear indication that a limited



publication was intended. The author of a literary composition has a light to the first publicationthereof. He has a right to determine whether it shall be published at all, and if published, when,where, by whom, and in what form. This exclusive right is confined to the first publication. When oncepublished, it is dedicated to the public, and the author loses the exclusive right to control subsequentpublication by others, unless the work is placed under the protection of the copyright law. (See IITolentino's Comments on the Civil Code, p. 433, citing Wright v. Eisle 83 N.Y. Supp. 887.)CONFORMABLY WITH ALL THE FOREGOING, We find that the errors assigned have not beencommitted by the lower court. The decision appealed from, therefore, should be, as it is hereby

affirmed. Costs taxed against plaintiff-appellant.G.R. No. L-36402 March 16, 1987 FILIPINO SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, INC., plaintiff-appellant, vs.BENJAMIN TAN, defendant-appellee.Lichauco, Picazo & Agcaoili Law Office for plaintiff-appellant.Ramon A. Nieves for defendant-appellee.PARAS, J.: An appeal was made to the Court of Appeals docketed as CA-G.R. No. 46373-R * entitled Filipino Society of Composers, Authors, Publishers, Inc., Plaintiff-Appellant v. Benjamin Tan, Defendant- Appellee, from the decision of the Court of First Instance of Manila, Branch VII in Civil Case No.71222 ** "Filipino Society of Composers, Authors and Publishers, Inc., Plaintiff v. Benjamin Tan,

Defendant," which had dismissed plaintiffs' complaint without special pronouncement as to costs.The Court of Appeals, finding that the case involves pure questions of law, certified the same to theSupreme Court for final determination (Resolution, CA-G.R. No. 46373-R, Rollo, p. 36; Resolution ofthe Supreme Court of February 16, 1973 in L-36402, Rollo, p. 38).The undisputed facts of this case are as follows:Plaintiff-appellant is a non-profit association of authors, composers and publishers duly organizedunder the Corporation Law of the Philippines and registered with the Securities and ExchangeCommission. Said association is the owner of certain musical compositions among which are thesongs entitled: "Dahil Sa Iyo", "Sapagkat Ikaw Ay Akin," "Sapagkat Kami Ay Tao Lamang" and "TheNearness Of You."On the other hand, defendant-appellee is the operator of a restaurant known as "Alex Soda

Foundation and Restaurant" where a combo with professional singers, hired to play and sing musicalcompositions to entertain and amuse customers therein, were playing and singing the above-mentioned compositions without any license or permission from the appellant to play or sing thesame. Accordingly, appellant demanded from the appellee payment of the necessary license fee forthe playing and singing of aforesaid compositions but the demand was ignored.Hence, on November 7, 1967, appellant filed a complaint with the lower court for infringement ofcopyright against defendant-appellee for allowing the playing in defendant-appellee's restaurant ofsaid songs copyrighted in the name of the former.Defendant-appellee, in his answer, countered that the complaint states no cause of action. While notdenying the playing of said copyrighted compositions in his establishment, appellee maintains that themere singing and playing of songs and popular tunes even if they are copyrighted do not constitute

an infringement (Record on Appeal, p. 11; Resolution, CA-G.R. NO. 46373-R, Rollo, pp. 32-36) underthe provisions of Section 3 of the Copyright Law (Act 3134 of the Philippine Legislature).The lower court, finding for the defendant, dismissed the complaint (Record on Appeal, p. 25).Plaintiff appealed to the Court of Appeals which as already stated certified the case to the SupremeCourt for adjudication on the legal question involved. (Resolution, Court of Appeals, Rollo, p. 36;Resolution of the Supreme Court of February 18, 1973, Rollo, p. 38).In its brief in the Court of Appeals, appellant raised the following Assignment of Errors:ITHE LOWER COURT ERRED IN HOLDING THAT THE MUSICAL COMPOSITIONS OF THEAPPELLANT WERE IN THE NATURE OF PUBLIC PROPERTY WHEN THEY WERECOPYRIGHTED OR REGISTERED.



defendants could be given that might compete with and even destroy the success of the monopolythat the law intends the plaintiffs to have. It is enough to say that there is no need to construe thestatute so narrowly. The defendants' performances are not eleemosynary. They are part of a total forwhich the public pays, and the fact that the price of the whole is attributed to a particular item whichthose present are expected to order is not important. It is true that the music is not the sole object, butneither is the food, which probably could be got cheaper elsewhere. The object is a repast insurroundings that to people having limited power of conversation or disliking the rival noise, give aluxurious pleasure not to be had from eating a silent meal. If music did not pay, it would be given up.

If it pays, it pays out of the public's pocket. Whether it pays or not, the purpose of employing it isprofit, and that is enough. (Ibid ., p. 594).In the case at bar, it is admitted that the patrons of the restaurant in question pay only for the foodand drinks and apparently not for listening to the music. As found by the trial court, the musicprovided is for the purpose of entertaining and amusing the customers in order to make theestablishment more attractive and desirable (Record on Appeal, p. 21). It will be noted that for theplaying and singing the musical compositions involved, the combo was paid as independentcontractors by the appellant (Record on Appeal, p. 24). It is therefore obvious that the expensesentailed thereby are added to the overhead of the restaurant which are either eventually charged inthe price of the food and drinks or to the overall total of additional income produced by the biggervolume of business which the entertainment was programmed to attract. Consequently, it is beyond

question that the playing and singing of the combo in defendant-appellee's restaurant constitutedperformance for profit contemplated by the Copyright Law. (Act 3134 amended by P.D. No. 49, asamended).Nevertheless, appellee cannot be said to have infringed upon the Copyright Law. Appellee'sallegation that the composers of the contested musical compositions waived their right in favor of thegeneral public when they allowed their intellectual creations to become property of the public domainbefore applying for the corresponding copyrights for the same (Brief for Defendant-Appellee, pp. 14-15) is correct.The Supreme Court has ruled that "Paragraph 33 of Patent Office Administrative Order No. 3 (asamended, dated September 18, 1947) entitled 'Rules of Practice in the Philippines Patent Officerelating to the Registration of Copyright Claims' promulgated pursuant to Republic Act 165, provides

among other things that an intellectual creation should be copyrighted thirty (30) days after itspublication, if made in Manila, or within the (60) days if made elsewhere, failure of which renders suchcreation public property." (Santos v. McCullough Printing Company, 12 SCRA 324-325 [1964].Indeed, if the general public has made use of the object sought to be copyrighted for thirty (30) daysprior to the copyright application the law deems the object to have been donated to the public domainand the same can no longer be copyrighted.A careful study of the records reveals that the song "Dahil Sa Iyo" which was registered on April 20,1956 (Brief for Appellant, p. 10) became popular in radios, juke boxes, etc. long before registration(TSN, May 28, 1968, pp. 3-5; 25) while the song "The Nearness Of You" registered on January 14,1955 (Brief for Appellant, p. 10) had become popular twenty five (25) years prior to 1968, (the year ofthe hearing) or from 1943 (TSN, May 28, 1968, p. 27) and the songs "Sapagkat Ikaw Ay Akin" and

"Sapagkat Kami Ay Tao Lamang" both registered on July 10, 1966, appear to have been known andsang by the witnesses as early as 1965 or three years before the hearing in 1968. The testimonies ofthe witnesses at the hearing of this case on this subject were unrebutted by the appellant. ( Ibid, pp.28; 29 and 30).Under the circumstances, it is clear that the musical compositions in question had long become publicproperty, and are therefore beyond the protection of the Copyright Law.PREMISES CONSIDERED, the appealed decision of the Court of First Instance of Manila in CivilCase No. 71222 is hereby AFFIRMED.SO ORDERED.G.R. No. 119280 August 10, 2006



UNILEVER PHILIPPINES (PRC), INC., Petitioner, vs.THE HONORABLE COURT OF APPEALS and PROCTER AND GAMBLE PHILIPPINES,INC., Respondents.

D E C I S I O NCORONA, J.: In this petition for review under Rule 45 of the Rules of Court, petitioner assails the February 24, 1995decision 1of the Court of Appeals (CA) in CA-G.R. SP No. 35242 entitled "Unilever Philippines (PRC),Inc. v. Honorable Fernando V. Gorospe, Jr. and Procter and Gamble Philippines, Inc. (P&GP) " which

affirmed the issuance by the court a quo of a writ of preliminary injunction against it. The writ enjoinedpetitioner from using and airing, until further orders of the court, certain television commercials for itslaundry products claimed to be identical or similar to its "double tug" or "tac-tac" key visual. 2 Petitioner alleges that the writ of preliminary injunction was issued by the trial court (and affirmed bythe CA) without any evidence of private respondent’s clear and unmistakable right to the writ.Petitioner further contends that the preliminary injunction issued against it already disposed of themain case without trial, thus denying petitioner of any opportunity to present evidence on its behalf.The antecedents show that on August 24, 1994, private respondent Procter and Gamble Phils., Inc.filed a complaint for injunction with damages and a prayer for temporary restraining order and/or writof preliminary injunction against petitioner Unilever, alleging that:1.5. As early as 1982, a P&G subsidiary in Italy used a key visual in the advertisement of its laundry

detergent and bleaching products. This key visual known as the "double-tug" or "tac-tac"demonstration shows the fabric being held by both hands and stretched sideways.1.6. The "tac-tac" was conceptualized for P&G by the advertising agency Milano and Gray of Italy in1982. The "tac-tac" was used in the same year in an advertisement entitled "All aperto" todemonstrate the effect on fabrics of one of P&GP’s products, a liquid bleach called "Ace."

x x x x x x x x x1.7. Since then, P&G has used the "tac-tac" key visual in the advertisement of its products. In fact, in1986, in Italy, the "tac-tac" key visual was used in the television commercial for "Ace" entitled "Kite."1.8. P&G has used the same distinctive "tac-tac" key visual to local consumers in the Philippines.

x x x x x x x x x1.10. Substantially and materially imitating the aforesaid "tac-tac" key visual of P&GP and in blatant

disregard of P&GP’s intellectual property rights, Unilever on 24 July 1993 started airing a 60 secondtelevision commercial "TVC" of its "Breeze Powerwhite" laundry product called "Porky." The said TVCincluded a stretching visual presentation and sound effects almost [identical] or substantially similar toP&GP’s "tac-tac" key visual.

x x x x x x x x x1.14. On July 15, 1994, P&GP aired in the Philippines, the same "Kite" television advertisement itused in Italy in 1986, merely dubbing the Italian language with Filipino for the same produce "Ace"bleaching liquid which P&GP now markets in the Philippines.1.15. On August 1, 1994, Unilever filed a Complaint with the Advertising Board of the Philippines toprevent P&GP from airing the "Kite" television advertisement. 3 On August 26, 1994, Judge Gorospe issued an order granting a temporary restraining order and

setting it for hearing on September 2, 1994 for Unilever to show cause why the writ of preliminaryinjunction should not issue. During the hearing on September 2, 1994, P&GP received Unilever’sanswer with opposition to preliminary injunction. P&GP filed its reply to Unilever’s opposition to apreliminary injunction on September 6, 1994.During the hearing on September 9, 1994, Judge Gorospe ordered petitioner to submit a sur-rejoinder. P&GP received Unilever’s rejoinder to reply on September 13, 1994. The following day, onSeptember 14, 1994, P&GP filed its sur-reply to Unilever’s rejoinder. On September 19, 1994, P&GP received a copy of the order dated September 16, 1994 ordering theissuance of a writ of preliminary injunction and fixing a bond of P100,000. On the same date, P&GPfiled the required bond issued by Prudential Guarantee and Assurance, Inc.

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On September 21, 1994, petitioner appealed to the CA assigning the following errors allegedlycommitted by the court a quo, to wit:PUBLIC RESPONDENT HAD ACTED WITHOUT OR IN EXCESS OF JURISDICTION AND WITHGRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN ISSUING THEWRIT OF PRELIMINARY INJUNCTION IN VIOLATION OF THE RULES ON EVIDENCE ANDPROCEDURE, PARTICULARLY OF SEC. 3 (a), RULE 58 OF THE REVISED RULES OF COURTAND OF THE PREVAILING JURISPRUDENCE.PUBLIC RESPONDENT IN ISSUING THE VOID ORDER DATED SEPTEMBER 16, 1994, HAD, IN

EFFECT, ALREADY PREJUDGED THE MERITS OF THE MAIN CASE.PUBLIC RESPONDENT HAD ISSUED THE VOID ORDER ACCORDING RELIEF TO A NON-PARTY IN CIVIL CASE NO. 94-2434 WITHOUT JURISDICTION.PUBLIC RESPONDENT IN ISSUING THE VOID ORDER HAD DEPRIVED PETITIONER OFSUBSTANTIVE AND PROCEDURAL DUE PROCESS; PUBLIC RESPONDENT HADFORECLOSED PETITIONER’S RIGHT AND THE OPPORTUNITY TO CROSS-EXAMINEPROCTER’S WITNESSES ABAD AND HERBOSA. 4 On February 24, 1995, the CA rendered its decision finding that Judge Gorospe did not act with graveabuse of discretion in issuing the disputed order. The petition for certiorari was thus dismissed forlack of merit.After a careful perusal of the records, we agree with the CA and affirm its decision in toto:

Petitioner does not deny that the questioned TV advertisements are substantially similar to P&GP’s"double tug" or "tac-tac" key visual. However, it submits that P&GP is not entitled to the reliefdemanded, which is to enjoin petitioner from airing said TV advertisements, for the reason thatpetitioner has Certificates of Copyright Registration for which advertisements while P&GP has nonewith respect to its "double-tug" or "tac-tac" key visual. In other words, it is petitioner’s contention thatP&GP is not entitled to any protection because it has not registered with the National Library the veryTV commercials which it claims have been infringed by petitioner.We disagree. Section 2 of PD 49 stipulates that the copyright for a work or intellectual creationsubsists from the moment of its creation. Accordingly, the creator acquires copyright for his work rightupon its creation.… Contrary to petitioner’s contention, the intellectual creator’s exercise andenjoyment of copyright for his work and the protection given by law to him is not contingent or

dependent on any formality or registration. Therefore, taking the material allegations of paragraphs1.3 to 1.5 of P&GP’s verified Complaint in the context of PD 49, it cannot be seriously doubted that atleast, for purposes of determining whether preliminary injunction should issue during the pendency ofthe case, P&GP is entitled to the injunctive relief prayed for in its Complaint.The second ground is likewise not well-taken. As adverted to earlier, the provisional remedy ofpreliminary injunction will not issue unless it is shown in the verified complaint that plaintiff is probablyentitled to the relief demanded, which consists in whole or in part in restraining the commission orcontinuance of the acts complained of. In view of such requirement, the court has to make a tentativedetermination if the right sought to be protected exists and whether the act against which the writ is tobe directed is violative of such right. Certainly, the court’s determination as to the propriety of issuingthe writ cannot be taken as a prejudgment of the merits of the case because it is tentative in nature

and the writ may be dissolved during or after the trial if the court finds that plaintiff was not entitled toit….

x x x x x x x x xObviously, the determination made by the court a quo was only for purposes of preliminary injunction,without passing upon the merits of the case, which cannot be done until after a full-blown hearing isconducted.The third ground is patently unmeritorious. As alleged in the Complaint P&GP is a subsidiary ofProcter and Gamble Company (P&G) for which the "double tug" or "tac-tac" key visual wasconceptualized or created. In that capacity, P&GP used the said TV advertisement in the Philippinesto promote its products. As such subsidiary, P&GP is definitely within the protective mantle of thestatute (Sec. 6, PD 49).







Finally, We find the procedure adopted by the court a quo to be in order…. The record clearly shows that respondent Judge followed the (procedure provided for in Section 5,Rule 58, as amended by BP 224, and Paragraph A(8) of the Interim Rules). In fact, the court a quo set the incident for hearing on September 2, 1994, at which date petitioner was ordered to showcause why the writ should not be issued. Petitioner filed an Opposition to the application forpreliminary injunction. The same incident was again set for hearing on September 9, 1994, duringwhich the parties made some manifestations in support of their respective positions. Subsequent tosuch hearing petitioner filed a Reply to P&GP’s Rejoinder to its Opposition. Under the foregoing

circumstances, it is absurd to even suggest that petitioner was not given its day in court in the matterof the issuance of the preliminary injunctive relief.

x x x x x x x x xThere was of course extreme urgency for the court a quo to act on plaintiff’s application for preliminary injunction. The airing of TV commercials is necessarily of limited duration only. Withoutsuch temporary relief, any permanent injunction against the infringing TV advertisements of whichP&GP may possibly succeed in getting after the main case is finally adjudicated could be illusory if bythen such advertisements are no longer used or aired by petitioner. It is therefore not difficult toperceive the possible irreparable damage which P&GP may suffer if respondent Judge did not actpromptly on its application for preliminary injunction. 5 Preliminary injunction is a provisional remedy intended to provide protection to parties for the

preservation of their rights or interests during the pendency of the principal action. 6

Thus, Section1,Rule 58 of the Rules of Court provides:Section 1. Preliminary injunction defined; classes. — A preliminary injunction is an order granted atany stage of an action or proceeding prior to the judgment or final order, requiring a party or a court,agency or a person to refrain from a particular act or acts. It may also require the performance of aparticular act or acts, in which case it shall be known as a preliminary mandatory injunction.Injunction is resorted to only when there is a pressing necessity to avoid injurious consequenceswhich cannot be remedied under any standard compensation. 7 As correctly ruled by the CA, therewas an extreme urgency to grant the preliminary injunction prayed for by P&GP considering that TVcommercials are aired for a limited period of time only. In fact, this Court takes note of the fact thatthe TV commercial in issue ― the Kite TV advertisement ― is no longer aired today, mor e than 10

years after the injunction was granted on September 16, 1994.The sole objective of a writ of preliminary injunction is to preserve the status quo until the merits ofthe case can be heard fully. 8 A writ of preliminary injunction is generally based solely on initial andincomplete evidence. 9Thus, it was impossible for the court a quo to fully dispose of the case, asclaimed by petitioner, without all the evidence needed for the full resolution of the same. To date, themain case still has to be resolved by the trial court.The issuance of a preliminary injunction rests entirely on the discretion of the court and is generallynot interfered with except in cases of manifest abuse. 10 There was no such abuse in the case at bar,especially because petitioner was given all the opportunity to oppose the application for injunction.The fact was, it failed to convince the court why the injunction should not be issued. Thus, in Santos v. Court of Appeals, 11 we held that no grave abuse of discretion can be attributed to a judge or body

issuing a writ of preliminary injunction where a party has not been deprived of its day in court as itwas heard and it exhaustively presented all its arguments and defenses.WHEREFORE, the petition is hereby DENIED. Costs against petitioner.SO ORDERED.




























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