Amicus Curiae Brief — Feist Publications, Inc. v. Rural Telephone Service Co.

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No. 80-1909 | ia eR

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Supreme Court of the United States

@rctoher Term, 1989

FEIST PUBLICATIONS, INC.,

Petitioner,

RURAL TELEPHONE SERVICE COMPANY, INC..,

Respondent.

BRIEF OF AMICUS CURIAE HAINES AND

COMPANY, INC., IN SUPPORT OF PETITIONER

FEIST PUBLICATIONS, INC.

JEREMIAH D. MCAULIFFE

Counsel of Record

PATTISHALL, MCAULIFFE, NewBurRY,

Hii.tiarp & GERALDSON

311 South Wacker Drive

Suite 5000

Chicago, Illinois 60606

(312) 554-8000

Counsel for Haines AND Company, INC.

Of Counsel:

BerRNARD A. BARKEN, P.C.

8182 Maryland, 4th Floor

St. Louis, Missouri 63105

(314) 854-8467

EUGENE GRESSMAN

Seton Hall University

School of Law

1111 Raymond Boulevard

Newark, New Jersey 07102

(201) 642-8844

American Reprographics Management, Inc.™ (312) 332-ARMI

TABLE OF CONTENTS

Page

THE INTEREST OF AMICUS CURIAE W.00....0..ccccccseoseeseeeseeseees 1

SUMMARY OF ARGUMENT ................ccccecssescecceecseeseeserencenseeees 5

FES EE 5

I THE COURTS IN FEIST AND HAINES

IMPROPERLY APPLIED THE COPYRIGHT ACT........ 5

Il. THE COURTS IN FEIST AND HAINES HAVE

ELIMINATED THE REQUIREMENT OF

APPROPRIATION OF EXPRESSION IN

ET ST a 8

A. Copyright Infringement Requires Proof of

Substantial Similarity of Expression........................... 8

B. The Courts In Feist and Haines Misinterpreted

Authority Requiring “Copying” ........................00000++ 11

Il. THE COPYRIGHT ACT PROVIDES NARROW

PROTECTION TO TELEPHONE DIRECTORIES ....... 13

Sr cryerenepcevessenynsistiicnsdiintrobidnshbnetanenbeneecenensemetontseseccees 14

TABLE OF AUTHORITIES

CASES Page(s)

Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946) 8

Atari, Inc. v. North American Philips Consumer Electronics

Corp., 672 F.2d 607 (7th Cir.), cert. denied, 459 U.S.

889 (1982). 11,12

Community for Creative Non- Violence v. Reid, 490 US.

___., 109 8. Ct. 2166, 104 L. Ed. 2d 811 (1989) 6

Cooling Systems & Flexibles, Inc. v. Stuart Radiator, Inc.,

777 F.2d 485 (9th Cir. 1985) 10, 13

Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905

(2d Cir. 1980) 12

Evans Newton, Inc. v. Chicago Systems Software, 793 F.2d

889 (7th Cir.), cert. denied, 479 U.S. 949 (1986) 12

Rural Telephone Service Co. v. Feist Publications, Inc.,

663 F. Supp. 214 (D. Kan. 1987), aff'd without op.,

No. 88-1679 (10th Cir. March 8, 1990), cert. granted,

No. 89-1909 (Oct. 1, 1990) (reprinted in appendix to

Petition for Certiorari at pp.5a-16a) 8, 9, 10, 11, 12

Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197

(9th Cir. 1989) 9, 10

Harper & Row Publishers, Inc. v. Nation Enterprises,

471 U.S. 539 (1985) ; 6, 7, 8, 9,13

Hartman v. Hallmark Cards, Inc., 833 F.2d 117

(8th Cir. 1987) 10

Hoehling v. Universal City Studios, Inc., 618 F.2d 972

(2d Cir.), cert. denied, 449 U.S. 841 (1980) . 8,13

Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021 (2d Cir. 1966).... 10

oo,

iii

CASES Page(s)

Illinois Bell Telephone Company v. Haines and Company,

Inc., 905 F.2d 1081 (7th Cir. 1990), petition for cert. filed,

No. 90-731 (Nov. 2, 1990) 1, 2, 4, 8, 9, 11, 12

Illinois Bell Telephone Company v. Haines and Company,

Inc., 683 F.Supp. 1204 (N.D. Til. 1988), aff'd 905

F.2d 1081 (7th Cir. 1990), petition for cert.

filed, No. 90-731 CNov. 2, 1990) ...........cccccccccceeeeeseeseeeeees 3, 4, 8,9

Landsberg v. Scrabble Crossword Game Players, Inc., 736

F.2d 485 (9th Cir.), cert. denied, 469 U.S. 1037 (1984)............. 13

Miller v. Universal City Studios, Inc., 650 F.2d 1365

EES Se 2S ee Oc 6

Nash v. CBS, Inc., 899 F.2d 1537 (7th Cir. 1990) ..................00000+- 4

Nash v. CBS, Inc., 704 F. Supp. 823 (N.D. Ill. 1989), aff'd,

ee 10

Selle v. Gibb, 741 F.2d 896 (7th Cir. 1984) ...............ccccccececesseeees 12

Sid & Marty Krofft Television Productions, Inc. v.

McDonald’s Corp., 562 F.2d 1157 (9th Cir. 1977)................ 8, 10

Sony Corp. of America v. Universal City Studios, Inc., 464

a seustnagpenensesocseocceee 5, 8

Stewart v. Abend, US. , 110 S. Ct. 1750, 109

L. Ed. 2d 184 (1990) ‘ ee ee a ee 6

Taft Television & Radio Co. v. King Broadcasting Co.,

5 US.P.O.:34 1966 (Sth Cir. 1987) ........0.ceccccccccecccsecccsseccccesscees 10

‘Teleprompter Corp. v. Columbia Broadcasting System, Inc.,

Ra LE a

Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904

(3d Cir.), cert. denied, 423 U.S. 863 (1975) .............cceccseeeesees 9,10

Walker v. Time Life Films, Inc.,'784 F.2d 44 (2d Cir.),

cert. denied, 476 U.S. 1159 (1986) ............ccecsccsesseeesseeeeeeeseeeees 10

Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834) ...........cccececesseseseeees 5

White-Smith Music Co. v. Apollo Co., 209 U.S. 1 (1908).............. 5

CASES Page(s)

aii thei ime So Sa

Inc., 739 F.2d 1094 (6th Cir. 1984) 11, 12

STATUTORY AND CONSTITUTIONAL PROVISIONS

U.S. Constitution

Amendment I Sie Wah bs i Ni hse heil Sa decnideiceendee 6,7

(het liad nS aberdeen alae 6,7

17 U.S.C. § OD caccscsccsseeessenee: 3 5,7

17 US.C. § 102a) ids 6

17 U.S.C. § 102(b) s: 5, 6,7

17 U.S.C. § 103(a) . Sshisa

17 U.S.C. § 103(b) “9 iealben been 5,7

LEGISLATIVE HISTORY

Report of the Committee on the Judiciary, H.R. Rep.

No. 1476, 94th Cong., 2d Sess. (1976) er

TREATISES AND ARTICLES

M. & D. Nimmer, Nimmer on Copyright (1990)................. 6, 7,11

P. Goldstein, Copyright (1989) , a 9

B. Kaplan, An Unhurried View of Copyright 57 (1967).............. 9

W. Patry, Latman’s The Copyright Law (6th ed. 1986) ........ 9,10

Gorman, Fact or Fancy? The Implications for Copyright,

29 J. Copyright Soc. 560, 563 (1982) ee

Patry, Copyright in Collections of Facts: A Reply,

Communications and the Law 10 (October 1984).................... 7

No. 89-1908

Gn The

Supreme Court of the Wnited States

October Term, 1989

FEIST PUBLICATIONS, INC.,

Petitioner,

RURAL TELEPHONE SERVICE COMPANY, INC.,

Respondent.

BRIEF OF AMICUS CURIAE HAINES AND

COMPANY, INC., IN SUPPORT OF PETITIONER

FEIST PUBLICATIONS, INC.

THE INTEREST OF AMICUS CURIAE

This brief of amicus curiae Haines and Company, Inc.

(“Haines”) is being filed with the written consent of the parties.

The parties’ letters of consent are being filed concurrently with

the Clerk of this Court.

The interest of Haines in the instant case arises from the

fact that Haines filed a petition for a writ of certiorari (No. 90-

731) on November 2, 1990, to review the judgment of the Court

of Appeals for the Seventh Circuit in Illinois Bell Telephone

Company v. Haines and Company, Inc., 905 F.2d 1081 (7th Cir.

1990), holding Haines liable for copyright infringement for using

alphabetical telephone directories as a source for information

in creating its cross reference directories. The issues presented

in the Feist and Haines petitions overlap to the extent that they

both involve the question of whether the copyright in a telephone

directory extends only to the selection, arrangement and

coordination used to express the facts contained therein. Haines’

petition, however, raises this question in a broader context

because it involves noncompeting directories and also raises the

additional question of whether the absence of substantial

similarity in expression between ar. alphabetical telephone

directory and a cross reference directory precludes a finding of

presented in Haines’ petition may be of assistance to this Court

in deciding the basic issue of what constitutes infringement of

the copyright in a telephone directory.

A cross reference directory is a street address directory which

is primarily used to discover information concerning street

addresses in an area. (905 F.2d at 1084)! Sample segments of

Haines’ directory are reproduced below:

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22520 TURNER Ow 395-1254 3| LINCOLN 60102

* O6us 1 RES 0 NEW ALGONQUIN

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In creating its cross reference directories, Haines uses

telephone directories along with other publications, such as

United States Postal Service and Census Bureau compilations

and maps, solely as sources for facts. Haines independently

creates its own selection, arrangement, and organization of the

facts it compiles from these various sources. See Illinois Bell

Telephone Company v. Haines and Company, Inc., 683 F. Supp.

1204, 1206 (N.D. IL. 1988).

Illinois Bell Telephone Company (“IBT’”’) brought suit

against Haines in 1985, allegirg Haines infringed the copyrights

in thirty-four different IBT alphabetical telephone directories

published in 1982 and 1983 by using them as sources for facts

for Haines’ five Chicago area cross reference directories.

(683 F. Supp. at 1206-1207) Reproduced below is a sample segment

of an IBT telephone directory:

IBT admitted that Haines’ directories are Seliidetely

dissimilar to IBT’s directories in selection, arrangement, and

purpose, and that Haines did not copy any of the original elements

of IBT’s directories. (683 F. Supp. at 1210) IBT limited its claim

of infringement to Haines’ use of information from IBT’s

directories. (683 F. Supp. at 1207) The District Court for the

Northern District of Illinois held Haines liable for copyright

infringement, stating Seventh Circuit law “protects a plaintiff

compiler’s copyright for even those facts that the plaintiff

gathered from the public domain.” (683 F. Supp. at 1209)

The Seventh Circuit affirmed the District Court’s holding

that a copyright in an alphabetical telephone directory protects

the facts in the directory apart from their expression. (905 F.2d

at 1086) The Seventh Circuit specifically rejected the principle

that only the taking of a compilation’s selection, coordination

and arrangement of facts is prohibited by the Copyright Act.

(905 F.2d at 1085) The Court also rejected the contention that

only the use of substantially similar expression constitutes

infringing use under the copyright law. (905 F.2d at 1086)

The harmful consequences of the Feist decision are dem-

onstrated by its application to the facts in the Haines case. Cross

reference directories are useful works which serve completely

different purposes than telephone directories. They are, therefore,

a type vf work which the policy promoting the free flow of

information encourages. Under the Haines decision, however,

the production of such works will be enjoined, with the result

that the public will be deprived of a work whose function cannot

be fulfilled by a telephone directory.

SUMMARY OF ARGUMENT

The Copyright Act provides specific limits on the protection

accorded copyrighted works. 17 U.S.C. §§ 102 (b), 103 (b). The

facts which are properly protected. 17 U.S.C. § 101. The limits

on protection provided by the Copyright Act are mandated by

both the Constitutional grant of authority to enact copyright

laws to protect only the “writings” of “authors” and the First

Amendment. By holding that any copying of facts appearing

in a copyrighted telephone directory constitutes infringement,

the courts in Feist and in Haines have expanded the law of

limits.?

The Feist and Haines decisions also abolished the test of

infri ts hetantial similarity in ion. By

misapplying precedent, these Courts equated the admission of

use of a copyrighted work as a source for facts with proof of

infringement of protected expression. This distorts the nature

of a copyright, which is limited to the protection of an author’s

ARGUMENT

I THE COURTS IN FEIST AND HAINES

IMPROPERLY APPLIED THE COPYRIGHT

ACT

law right. Wheaton v. Peters, 33 U.S. (6 Pet.) 591, 660-61, 663

(1834). Accord, White-Smith Music Co. v. Apollo Co., 209 U S.

1, 15 (1907). As stated in Sony Corp. of America v. Universal

2 Haines has never relied on the fair use defense, nor has it contested

the copyrightability of telephone directories.

City Studios, Inc., 464 U.S. 417, 429 (1984), “As the text of the

Constitution makes plain, it is Congress that has been assigned

the task of defining the scope of the limited monopoly” granted

by the copyright law. Thus, “the language of the statute provides

the starting point.” Stewart v. Abend, ___ US. __, 110 8.

Ct. 1750, 1770, 109 L. Ed. 21 184, 213 (1990) (Stevens, J..,

cissenting). Accord, Community for Creative Non-Violence v.

Reid, 490 U.S. __, 109 S. Ct. 2166, 104 L. Ed. 2d 811 (1989).

Specific provisions of the Copyright Act and the Constitution

prohibit the protection of facts in a work as opposed to the original

expression in which they are used. Section 102 (a) of the Copyright

Act, 17 U.S.C. § 102 (a), provides that copyright protection subsists

only in “original works of authorship.” This requirement of

originality reflects the Constitutional grant of authority to

Congress to enact copyright laws to protect only the “writings”

of “authors.” U.S. Constitution, art. I, § 8, cl. 8. Since facts do

not originate with an author, they cannot be the subject matter

of copyright. Miller v. Universal City Studios, Inc., 650 F.2d 1365,

1368 (5th Cir. 1981); M. & D. Nimmer, 1 Nimmer on Copyright,

§ 2.03 [E], pp. 2-34.1 — 2-34.2 (1989).

Section 102 (b) of the Copyright Act specifically states that

protection of a work does not extend to any “idea” or “discovery”

appearing in the work “regardless of the form in which it is

described, explained, illustrated, or embodied.” The committee

notes to this section confirm this dichotomy between facts and

an author’s expression:

or information revealed by the author’s work. It

pertains to the literary, musical, graphic, or artistic

form in which the author expressed intellectual

concepts.

Report of the Committee on the Judiciary, H.R. Rep. No. 1476,

94th Cong., 2d Sess., p. 56 (1976).

This Court, in Harper & Row Publishers, Inc. v. Nation

Enterprises, 471 U.S. 539, 559 (1985), recognized that under

§ 102 (b), “No author may copyright his ideas or the facts he

narrates.” This Court further held that the First Amendment

necessitates the dichotomy between facts and their expression

set forth in § 102 (b), stating (471 U.S. at 560):

The Second Circuit noted, correctly, that copyright’s

idea/exp’ession dichotomy strikes a definitional

balar.ce between the First Amendment and the Copy-

right Act by permitting full communication of fact-

while still protecting an author’s expression.

Compilations of facts may constitute proper subjects of

scope of protection of compilations, however, in accordance with

§ 102, to the material contributed by the author, as distinguished

from the preexisting facts contained in the work. Section 101

of the Act specifically defines the originality in a compilation

as the arrangement, coordination and selection displayed by the

compilation as a whole:

A ‘compilation’ is a work formed by the collection and

assembling of preexisting materials or of data that

are selected, coordinated, or arranged in such a way

that the resulting work as a whole constitutes an

original work of authorship.

Thus, the only original material an author of a compilation

of facts can possibly contribute is the selection, ordering and

arrangement of facts. M. & D. Nimmer, 1 Nimmer on Copyright,

§ 2.04 [B], pp. 240 — 2-42; § 3.04, pp. 3-16 — 3-18 (1989); Patry,

the Law 10, 16 & n.30 (October 1984). A prohibition against the

use of facts apart from their expression in a compilation would

violate Article I of the Constitution, Sections 102 and 103 of the

statutory and Constitutional limitations, the courts in Feist and

Haines have granted telephone companies an absolute monopoly

over the information contained in their directories.

An extension of a telephone utility's monopoly to prohibit

use of customer information violates the fundamental policy

underlying the Copyright Act. This policy is to encourage the

creation of works of intellect by protecting an author’s expression,

while at the same time permitting the public to benefit from

Act between the interests of authors and the public. If these

decisions are allowed to stand, they will stifle the progress which

the copyright law is designed to promote.

Il. THE COURTS IN FEIST AND HAINES HAVE

ELIMINATED THE REQUIREMENT OF

APPROPRIATION OF EXPRESSION IN COM-

PILATION CASES

(af

Marty

562 F.2d 1157, 1164 (9th Cir. 1977).

a —— ee

Improper appropriation of expression requires a showing that

the material copied is protected by the author's copyright and

that the parties’ works are substantially similar. Universal

Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.), cert.

denied, 423 U.S. 863 (1975); W. Patry, Latman’s The Copyright

Law 196-197 (6th ed. 1986).

The preliminary requirement of use or “copying” merely

“protects the defendant who has never consulted the plaintiffs

work but whose work is, because of coincidence or artistic

convention, substantially similar to the plaintiff's.” P. Goldstein,

2 Copyright § 7.12, p. 7 (1989). Once a court has established that

a copyrighted work has been used or “copied,” it must then

proceed to determine whether that use or “copying” amounts

to an infringement. Nash v. CBS, Inc., 899 F.2d 1537, 1539-40

(7th Cir. 1990). As recognized by this Court, “.. . ‘use’ is not

the same thing as ‘infringement,’ . . . . use short of infringement

is to be encouraged.” Teleprompter Corp. v. Columbia Broad-

casting System, Inc., 415 U.S. 394, 398 n.2 (1974), quoting B.

Kaplan, An Unhurried View Of Copyright 57 (1967).

The courts in Haines and Feist misapplied the test of

whether the defendants in those cases usea the plaintiffs’ works,

which both defendants admitted, with the ultimate question of

whether such use constituted an unlawful appropriation of

expression.5 Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d

197, 207-08 (9th Cir. 1989); Universal Athletic Sales Co. v. Salkeld,

511 F.2d 904, 907, 909 (3d Cir.), cert. denied, 423 U.S. 863 (1975).

The defendants’ admissions of “copying from” the plaintiffs’

works in Haines and Feist only relieved the courts from deter-

mining circumstantially whether the act of “copying from” those

works occurred. If “copying from” the plaintiffs’ works had been

denied, then the courts would have had to determine whether

such “copying” occurred by, inter alia, comparing the parties’

works for similarities in unprotected elements, as well as in

expression. W. Patry, Latman’s The Copyright Law 193, 196-197

5 While the District Court in Haines stated that “copying must also

be infringing,” it erroneously analyzed this as a “common

law fair use defense,” rather than in terms of improper appropriation

of expression. (683 F.Supp. at 1210)

(6th ed. 1986). As stated in Universal Athletic Sales Co. v. Salkeid,

511 F.2d 904, 907 (3d Cic.), cert. denied, 423 U.S. 863 (1975),

777 F.2d 485, 493 (9th Cir. 1985):

B. The Courts In Feist and Haines

Misinterpreted Authority Requiring

“Copying”

Both Feist and Haines eliminated the need to prove an

allegedly infringing work is substantially similar to a copyrighted

work by misinterpreting an explanation of the elements necessary

for a copyright infringement claim set forth in M. & D. Nimmer,

3 Nimmer on Copyright § 13.01, p. 13-4 (1989). This explrnation

states two elements are necessary to state a copyright iafringe-

ment claim: ownership of the copyright by plaintiff; and copying

by the defendant.’ The Feist and Haines courts mistakenly

equated “copying” of information with copying of protected

expression. The Nimmer treatise, however, clearly states that

mere use of information does not constitute infringement

(§ 13.03{BI2]b], p. 13-56):

Because no copyright may exist in facts per se, the

copyight in a book dealit.g with factual matters cannot

be infringed by a work that copies such facts, but in

a manner in which the particular verbal description

of such facts is not copied.

Thus, the “copying” Nimmer refers to is the copying of a

substantially similar expression (§ 13.03[A], p. 13-23):

just as copying is an essential element of infringement,

so substantial sirmilarity between the plaintiffs and

defendant’s works is an essential element of copying .*

Circuit in Haines cited Atare tne. v- North American Phiipe Consumer

672 F.2d 607, 614 (7th cert. denied, 459 US.

889 (1982), had ced Nimier as etablhing stent (EP 2

at 1086) The Feist court cited Wickham v. Knoxville Energy

Exposition, Inc., 739 F.2d 1094, 1097 (6th Cir. 1984), which also cited

8 The Nimmer treatise further states that only the arrangement of a

telephone directory, if it is original, may be protected under the copyright

law. (§ 3.04, pp. 3-18 — 3-20.1)

The Seventh Circuit in Haines misapplied its own authority

in affirming the District Court’s finding that proof of appropri-

ation of protected expression is not required for a finding of

infringement. In Haines, the Seventh Circuit quoted the Nimmer

explanation from Atari, Inc. v. North American Philips Consumer

Electronics Corp., 672 F.2d 607, 614 (7th Cir.), cert. denied, 459

U.S. 889 (1982). (905 F.2d at 1086) In Atari, however, the Court

held infringing copying consists of “appropriation of only those

elements of the work that are protected by copyright” and

recognized improper appropriation of expression, in addition to

“copying,” is required (672 F.2d at 615):

Some courts have expressed the test of substantial

similarity in two parts: (1) whether the defendant

copied from the plaintiffs work and (2) whether the

copying, if proven, went so far as to constitute an

: ‘ati

The Seventh Circuit subsequent to Atari established a similar

four-part standard for a copyright infringement action, which

requires ownership and originality of the work, plus “copying

the work by the defendant and a substantial degree of similarity

between the two works.” (emphasis added) Evans Newton, Inc.

v. Chicago Systems Software, 793 F.2d 889, 893 (7th Cir.), cert.

denied, 479 U.S. 949 (1986); Selle v. Gibb, 741 F.2d 896 (7th Cir.

1984).

The case cited in Feist as authority for the “ownership pilus

copying” test of infringement, Wickham v. Knoxville Interna-

tional Energy Exposition, Inc., 739 F.2d 1094, 1097 (6th Cir. 1984)

(Pet. at 8a-9a), also recognized that substantial similarity in

expression is required to show infringing copying:

Thus, copying is an essential] element of infringement

and substantial similarity between the plaintiff's and

defendant’s works is <n essential element of copying.

(emphasis added)

Feist further cited Durham Industries, Inc. v. Tomy Corp., 630

F.2d 905 (2d Cir. 1980), which also contradicts its position. (Pet.

at 11a) In Durham, the Second Circuit recognized the requirement

that there exist substantial similarity of expression and granted

summary judgment for the defendant, noting “Where the

similarity demonstrated pertains solely to noncopyrightable

material, summary judgment is appropriate.” (630 F.2d at 915,

citing Hoekling v. Universal City Studios, Inc., 618 F.2d 972,

977 (2d Cir.), cert. denied, 449 U.S. 841 (1980)).

Thus, in all of the precedent cited by both the Haines and

Feist courts to reject proof of substantial similarity in expression

as a requirement for a finding of copyight infringement, proof

of substantial similarity in expression was held to be an element

of a prima facie case of infringement.

Ill. THE COPYRIGHT ACT PROVIDES NARROW

PROTECTION TO TELEPHONE DIRECTO-

RIES

Because the copyright law promotes the dissemination of

ideas and information, the scope of protection afforded a work

narrows as original expression decreases. Harper & Row

Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 564 (1985);

Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d

485, 488 (9th Cir.), cert. denied, 469 U.S. 1037 (1984). Works

communicating facts and information are, therefore, entitled to

less protection than more creative works. Cooling Systems &

Flexibles, Inc. v. Stuart Radiator, Inc., 777 F.2d 485, 492 (9th

Cir. 1985).

As this Court held in Harper & Row, the “law generally

recognizes a greater need to disseminate factual works than works

of fantasy.” (471 U.S. at 563) This Court recognized that less

expressive factual works, such as directories, are entitled to

correspondingly less protection in order to ensure that copyright

does not impede the dissemination of published facts:

[E}ven within the field of fact works, there are gra-

dations as to the relative proportion of fact and fancy.

One may move from sparsely embellished maps and

directories to elegantly written biography. The extent

to which one must permit expressive language to be

copied, in order to assure dissemination of the under-

lying facts, will thus vary from case to case.

(471 U.S. at 563, quoting Gorman, Fact or Fancy? The Impli-

Virtually no independent creativity is involved in creating

telephone directories. Publication of thase directories is required

by law, and the contents of the directory are largely dictated

by statute as well. Despite the limited amount of authorship in

IBT’s telephone directories and IBT’s admission that Haines used

none of that authorship, the Seventh Circuit in Haines provided

IBT’s telephone directories with extraordinary protection.

CONCLUSION

For the foregoing reasons, amicus curiae Haines and

Company, Inc., respectfully submits that this Court should hold

that the Copyright Act protects only against the use of the original

selection, arrangement and coordination used by the author of

a telephone directory and that underlying facts cannot be

protected against subsequent use merely because they appear

in a copyrighted directory.

Respectfully submitted,

JEREMIAH D. McAULIFFE

Counsel of Record

PATTISHALL, McAULIFFE, NEWBURY,

Hru1arp & GERALDSON

311 South Wacker Drive

Suite 5000

Chi " Tlinois 60606

(312) 554-8000

Counsel for Haines AND CoMPANY, INC.

Of Counsel:

BERNARD A. BARKEN, P.C.

8182 Maryland, 4th Floor

St. Louis, Missouri 63105

(314) 854-8467

EUGENE GRESSMAN

Seton Hall University

Scho. | of Law

1111 Raymond Boulevard

Newark, New Jersey 07102

(201) 642-8844

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.