Warren Publishing, Inc., Plaintiff-Counter-Defendant v. Microdos Data Corp. Robert Payne, Defendants-Counter-Claimants

52 F.3d 950, 34 U.S.P.Q. 2d (BNA) 1766, 1995 U.S. App. LEXIS 12245, 1995 WL 264137
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 23, 1995
Docket93-8474
StatusPublished
Cited by7 cases

This text of 52 F.3d 950 (Warren Publishing, Inc., Plaintiff-Counter-Defendant v. Microdos Data Corp. Robert Payne, Defendants-Counter-Claimants) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Warren Publishing, Inc., Plaintiff-Counter-Defendant v. Microdos Data Corp. Robert Payne, Defendants-Counter-Claimants, 52 F.3d 950, 34 U.S.P.Q. 2d (BNA) 1766, 1995 U.S. App. LEXIS 12245, 1995 WL 264137 (11th Cir. 1995).

Opinions

GODBOLD, Senior Circuit Judge:

This is an appeal from a permanent injunction enjoining defendants from infringing a copyright of Warren Publishing. As a predicate for the injunction the district court denied a motion by the defendants for partial summary judgment on the infringement issue and granted a cross motion for partial summary judgment on that issue by Warren Publishing.1 We affirm.

[951]*951I. Background and Copyrightability

Warren compiles and publishes annually a printed directory known as the “Television and Cable Factbook,” which provides information on cable television systems throughout the country. The subject matter of this case is the 1988 issue of the Factbook, which contains a “Directory of Cable Systems” section and a “Group Ownership of .Cable Systems” section, together containing approximately 1,350 pages of information concerning 8,413 cable systems throughout the country and their owners.

The district court explained the format of the Factbook:

The directory of cable systems section arranges entries alphabetically by state, and, within each state, alphabetically by the name of the “lead” or “principal” community served by the particular cable system. The group ownership section contains a listing of selected information about entities owning and/or operating more than one cable system. These entities are called multiple system operators, or MSOs. The 1988 Factbook contained information on 8,413 cable systems. Information on each cable system and MSO entry is broken down into a uniform set of “data fields” which provide a specific piece of information about the system. The Fact-book uses the same pattern for each cable system entry. The Factbook’s format is based on identifying cable systems, then providing information on the cable systems through the use of specific groups of data fields.

Order, p. 2.

Warren has been publishing cable television information since 1948, constantly adding to its work systems and data fields of systems. It is not disputed that the Fact-book is a copyrighted work and is appropriately registered. The Factbook is, however, a compilation.

A ‘compilation’ is a work formed by the collection and assembling of preexisting matérials or of data that are selected, coordinated; or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.

17 U.S.C. § 101 (1990) (Emphasis added.).

A ‘compilation’ results from a process of selecting, bringing together, organizing and arranging previously existing material of all kinds, regardless of whether the individual items in the material have been or ever could have been subject to copyright.

H.Rep. No. 1476, 94th Cong., 2d Sess. 57, reprinted in 1976 U.S.C.C.A.N. 5659, 5670.2

The preexisting materials in this case consist of information about cable television systems. A copyright of a compilation does not lead automatically to a conclusion that all materials therein are copyrighted. The owner must prove that the alleged infringer appropriated a protectable element of the compilation consisting of the owner’s original selection, coordination or arrangement. Feist Publications, Inc. v. Rural Tel. Serv. Co,, 499 U.S. 340, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). The district court found, on the summary judgment record, that the Factbook had sufficient originality in its selection, coordination and arrangement of the data contained therein to be copyrighted, a conclusion that Microdos does not seriously contest. Warren contended that the elements of the compilation that were copyrighted and infringed were three: (1) the communities covered; (2) the selection, sequencing and arrangement of data fields; and (3) the content of the data fields. With respect to (2), the court found that the selection of data fields to be incorporated into the Factbook was obvious to persons in the industry and did not require the creativity and originality necessary to permit copyright protection. The arrangement of data fields was held to be creative and copyrighted but not infringed because not substantially appropriated by Microdos. With respect to (3), the content of data fields was found to be [952]*952merely facts thus not copyrightable. Warren has not cross appealed, so the findings with respect to data fields are not before us for review.

The district court described Warren’s system for selecting and presenting information on cable systems:

How one defines a ‘cable system’ will dictate the communities selected to represent those systems.
Warren Publishing uses a ‘principle [sic] community’ system in selecting and presenting its information on cable systems contained in its Factbook. A ‘cable system’ is defined as an entity composed as one or more communities that are offered the same, service by the same cable system owner at the same price. The principle [sic] community, used to represent the entire cable system, is then selected by contacting the cable operator to determine which community is considered the lead community within the cable system. Other communities within the same cable system are then listed under the principle [sic] community, not independently.

Order, p. 10. The court then went on to hold that only Warren’s selection of communities was sufficiently creatively original to be copyrightable.

In effect, Warren had admitted that the coordination and arrangement of the communities selected for coverage in the Fact-book was an obvious, mechanical, or routine task which required no creativity. Therefore, the coordination and arrangement of the communities selected is not copyrightable. However, Warren argues that the selection of those communities was creative and protectable because Warren uses a unique system in selecting the communities that will be represented in the Factbook. The court finds that Warren Publishing’s system of selecting communities is sufficiently creative and original to be copyrightable.3
3 ' This is not to say that the selection of cable systems would be copyrightable in all cases. Had Warren selected every cable system listed by the F.C.C., then there would not be sufficient originality in the "selection” to warrant copy-rightability.
* ‡ * # #
In this ease a choice was made as to which communities were to be listed.

Order, p. 11.

Cable system information compiled and arranged by various compilers in the industry is commonly organized alphabetically by state and then, for each state, alphabetically by the names of communities having cable service. Cable systems offering service may serve one geographical community (single-community service) or more than one geographical community (multiple-community service). A system will serve only a community, or communities, for which it has been granted a franchise(s) by one or more local governments.

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52 F.3d 950, 34 U.S.P.Q. 2d (BNA) 1766, 1995 U.S. App. LEXIS 12245, 1995 WL 264137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warren-publishing-inc-plaintiff-counter-defendant-v-microdos-data-corp-ca11-1995.