Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)

 

The Supreme Court case, Feist Publications, Inc, v. Rural Telephone Service shows two arguments on issues of copyrighting facts. The case emerged when Feist Publication included numbers from Rural Telephone Service to be included in their own telephone book when Rural refused to share the information, and Rural sued for copyright infringement. The two main arguments are presented: one states that fact alone cannot be copyrighted, but compilations of facts can be considered an artistic input; therefore, the expression of fact in a "collection of words" can be copyrighted. However, the compilation of facts require a minimum degree of originality, and since copyright law only applies to creative aspects of the two dimensional work, a list of A-Z phonebook does not satisfy enough creativity or artistic merit to be qualified for copyright protection.

The Court ruled that Rural's listings did not meet the standards for “minimum creativity” and that the use of the listings did not constitute infringement. This decision emphasizes that copyright only extends protection to originality, not the amount of effort put into the creation of an artwork.

This recent case showcases a judicial activism in which the court uses aesthetic qualities to judge whether this particular compilation of facts, via phonebook, is under copyright protection. However, this decision complicates my argument greatly. Under Bleistein v. Donaldson, any artwork of a value should be granted copyright. Looking at the monetary value that the phonebook contains, the copyright should be granted, however its evidently low artistic value disqualifies the work of any copyright infringement. What is the minimum balance of artistic/tangible value that would grant a two dimensional artwork a copyright protection? Also, the case brings up demonstration of minimal originality as part of the qualification. The court only so far answers the question by saying that listing of facts is not providing enough creativity. Where does the line lie for minimal creativity? Aesthetic determination of the work seemed crucial in this case, for if the copyright was granted, the value of art in current society will diminish because creation of artwork has become so effortless and widespread, but perhaps it was because no clear quantitative standard to judging “minimum originality” was set by the legislature or the judiciary. The case weighs in on the necessity of aesthetic decision to promote progress, but also demonstrates that while aesthetic decision is good for case-by-case studies, it shows that lack of quantitative standards created inconsistency in what society has perceived as norms and requirements for a copyright protection over time.

 

 

Burrow-Giles Lithographic Company v. Sarony. 111 U.S. 53; 4 S. Ct. 279; 28 L. Ed. 349; 1884 U.S. LEXIS 1757

 

This landmark Supreme Court case rose about when Burrow-Giles lithographic company when Napoleon Sarony, a photographer of “Oscar Wilde No. 18,” sued the company for copyright infringement when it distributed lithographs of the photography without author’s consent and permission. The Company’s main argument was that photographs are products of a mechanical process, and is therefore not an art, and are not protected under article I, section 8, clause 8 of the United States Constitution—photographs are not produced under authorship as other means of art, such as writing and painting, are. Supreme Court concludes that Congress has the constitutional power to extend copyright protection to new emerging medium of expression, such as photography that represent “original intellectual conceptions” and “ his own genius and intellect.” The Court first argued that since Sarony included “Copyright, 1882, by N. Sarony,” at the corner of his photograph, it gave sufficient notice to the public of his exclusive right to the work. Secondly, although the Constitution does not include photographs under works of authorship in which are protected under copyright, it is only because the technology, when the statute was written in 1790, was not in existence. Providing the evidence that charts and maps were included under protection in Copyright Act of 1790, the court concludes that since photographs are a medium in which “idea of mind given a visible expression,” they also qualify under copyright protection under the constitution. Court goes further on, stating no ordinary photography of which “transferring to the plate the visible representation of some existing object” will not be given a copyright. Only photographs that are “useful, new, harmonious, characteristic, and graceful…entirely from his own original mental conception” and in effectively doing so—showcasing enough expression and originality to be granted such a protection. With this case, Supreme Court demonstrated a great activism in promoting and introducing new medium of expression to the culture. However, the last clause to the court’s argument, that a photograph must express sufficient originality according to court’s standard to be considered an art, creates a very subjective and aesthetic basis to which future photographic art/and recreations of the medium are to be judged. Words that were used by Justice Miller to describe an original photography are words conceptualized with different meanings according to every person’s mind and artistic taste. Law should be a concrete rule which should be understood and interpreted, to an extent, on a same level, and the aesthetics required by the court’s decision set minimal base to which people can agree on. This was the first real case in which the court’s decision in granting the copyright based entirely upon a subjective and aesthetic decision. I will argue the loosely set standards in the decision created inconsistency and unpredictability in future cases and did little to mold society a clear conception of photography as art.

"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" Justice Holmes, Bleinstein v. Donaldson(1903) Despite Court's reservation about being judges of aesthetics values which grants 2D art an authorship, great display of judicial activism by courts have been demonstrated since Burrow-Giles v. Sarony(1884), where the court has reshaped copyright law through "aesthetic" determinations that newly define originality and authorship in two dimensional art. As a result, couple issues are at stake. 1) The change in the norm and societal definition of originality and authorship in 2D art. 2) Should such qualitative (subjective) analysis be used, or new quantative standards of determining originality is needed? 3) Lack of consistency and coherency in court's decision over time, and no predictability; does it promote progress? The fundamental question arises: should courts be making aesthetic decisions? I will be focusing on judicial activism displayed in cases about authorship of 2-D art determining what is copyrightable, most importantly in photography. Looking through landmark cases starting with Burrow-Giles v. Sarony(1884) to as recent as Bridgman Art Library v. Corel Corp(1999), I will argue that court's lack of "quantitative standards" in determining originality of each work created inconsistency and failed to create a societal norm of authorship and originality in 2D art realm. I will propose that legislation is needed in which the government clearly defines consistent, more quantative standards to judge "originality" of a two dimensional art to determine its qualifications for copyright privilege.