Compilation copyright: it’s the selection and arrangement that counts

So we’ve seen that just because a work is based on (derived from) a public domain work, the entire thing might not be free for the taking.

Well, just because a work is a compilation of public domain material, like the Dover book of 19th century designs we talked about earlier ... that also doesn’t mean it’s free for the taking. Why? Because the compilation itself may be protected by copyright.

Let’s take a closer look ...

What’s a compilation?

A compilation is a work created by selecting, organizing, or arranging previously existing material in such a way that the resulting work as a whole constitutes an original work of authorship. Types of compilations include:

Fact compilations (databases, directories, lists, etc.)
Collective works (anthologies, newspapers, magazines, encyclopedias, etc.)

Compilations made up of entirely public domain material may be protected by copyright, as long as they are minimally creative.

Minimally creative? Huh?

To get at what this minimal creativity stuff means, let’s consider a few examples. These would be copyrightable compilations:

A book of “The Twenty Best O. Henry Short Stories”
A collection of “Historic American Sheet Music: 1850–1920”
A coffee table book of “Mathew Brady’s Greatest Civil War Photos”
An online database of information about the scariest roller coasters in the world

In the examples, minimal creativity was involved in deciding which are the twenty best O. Henry stories, which sheet music to include (such as protest songs or spirituals), which are Brady’s greatest war photos, and which are the scariest roller coasters ... and in what order to present them.

In contrast, let’s say there’s a playwright who published only three plays, ever, in his whole life. And those plays are now in the public domain. If someone collected and published all three plays ... the compilation would not be copyrightable. As an influential appellate court has said, “‘all’ is not a selection.” See Silverstein v. Penguin Putnam, 368 F.3d 77, 85 (2nd Cir. 2004).

Generally, the greater the amount of material from which to select, coordinate, or order, the more likely it is that the compilation will be protected by copyright.

Facts aren’t copyrightable

Returning to the examples above, the facts about those scary roller coasters would not be copyrightable (things like what type, how high, at which amusement park, etc.) ... but the editorial selection and arrangement would be. You’d be free to copy the individual unadorned facts, just as you’d be free to copy the individual O. Henry stories and individual 19th century designs. (Okay, I’ll stop picking on that Dover book.)

... and alphabetical or chronological order doesn’t cut it

When the act of collecting the preexisting material that makes up the compilation is a purely mechanical task with no element of editorial selection, the compilation is not eligible for copyright. For example ...

A telephone company in Kansas refused to license its white pages listings to a publisher of telephone directories. The publisher went ahead and copied more than 1,300 listings without the telephone company’s consent. The telephone company sued the publisher for copyright infringement. The case made it all the way to the US Supreme Court, who ruled in favor of the publisher.

The phone company’s white pages were not entitled to copyright protection, being facts that were arranged in alphabetical order. As Justice O’Connor put it, “the selection and 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.” Alphabetizing doesn’t cut it. See Feist Publications, Inc. v. Rural Telephone Service Co., 490 U.S. 340 (1991). If you’re interested you can read the case here.

If the work is part of a compilation ...

Remember, when you’re talking about a compilation of public domain material, it’s the selection, organization, or arrangement that gets the copyright protection. The copyright in such works is often called a “thin” copyright because all it protects is the selection, organization, or arrangement. The individual public domain elements are still in the public domain.

So if you want to copy a compilation of public domain works, use only the individual parts of the compilation that are in the public domain. For example, you could copy all of those O. Henry stories in the compilation, but you could not present the stories the same way the compiler did. That is, you couldn’t publish the same “20 best” stories. You’re free to create your own compilation, however, based on your own judgement.

And now for something completely different. What else must you watch out for when using public domain works? The key word here is using ...