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312.2 The Originality Requirement for Compilations

 

312.2 The Originality Requirement for Compilations

A compilation may contain several distinct forms of authorship:

 

• Selection authorship involved in choosing the material or data that will be included in the compilation;

 

• Coordination authorship involved in classifying, categorizing, ordering, or grouping the material or data; and/or

 

• Arrangement authorship involved in organizing or moving the order, position, or placement of material or data within the compilation as a whole.

 

See Feist, 499 U.S. at 348.

 

In determining whether a compilation satisfies the originality requirement, the registration specialist should focus on the manner in which the materials or data “have been selected, coordinated, and arranged” and “the principal focus should be on whether the selection, coordination, and arrangement are sufficiently original to merit protection.” Id. at 358.

 

The authorship involved in selecting, coordinating, and arranging the preexisting material or data must be objectively revealed in the deposit copy(ies). See id (“Originality requires only that the author make the selection or arrangement independently . . . and that it display some minimal level of creativity”) (emphasis added). For instance, a compilation of statistics is not copyrightable if the author’s selection, coordination, or arrangement of data is not evident in the claim.

 

While “[t]he originality requirement is not particularly stringent,” the Office cannot register a compilation “in which the selection, coordination, and arrangement are not sufficiently original to trigger copyright protection.” Id. The preexisting material or data do not need to “be presented in an innovative or surprising way.” See id. at 362. The Office may register the claim if the author’s selection possesses some minimal degree of creativity, even if the coordination and/or arrangement do not (or vice versa). However, the more creative the selection, coordination, and/or arrangement, the more likely it is that the author’s compilation will be registered. For example, the Office generally will not register a compilation consisting of all the elements from a particular set of data, because the selection is standard or obvious. Likewise, the Office generally will not register a compilation containing only two or three elements, because the selection is necessarily de minimis. See H.R. REP. NO. 94-1476, at 122 (1976), reprinted in U.S.C.C.A.N. at 5737 (stating that a work does not qualify as a collective work “where relatively few separate elements have been brought together,” as in the case of “a composition consisting of words and music, a work published with illustrations or front matter, or three one-act plays”).

 

In determining whether the author’s compilation is sufficiently original, the U.S. Copyright Office may consider the following factors:

 

• What type of material or data did the author compile?

 

• How is the material or data presented?

 

• Was the selection, coordination, and/or arrangement made from a large or diverse pool of material or data?

 

• Was the coordination or arrangement standard?

 

• Is the selection exhaustive (e.g., a parts catalog containing standard information for all of the parts sold by a particular company)?

 

• Is the coordination or arrangement obvious (e.g., is the information listed in alphabetical, numerical, or chronological order)?

 

The statute also provides that preexisting material or data “must be selected, coordinated, or arranged ‘in such a way’ as to render the work as a whole original. This implies that some ‘ways’ will trigger copyright, but that others will not.” Feist, 499 U.S. at 358 (citing 17 U.S.C. § 101 definition of “compilation”).

 

Examples:

 

• Generally, a selection consisting of less than four items will be scrutinized for sufficient authorship.

 

• A selection, coordination, and/or arrangement that is mechanical or routine, such as an alphabetical list of items added to a catalog within the past twelve months, a symmetrical arrangement of stones on jewelry, arranging geometric shapes in a standard or symmetrical manner, arranging notes in standard scales or in standard melodic or harmonic intervals, or a musical work consisting solely of a musical scale(s).

 

• A selection, coordination, and/or arrangement that is commonplace such that it has come to be expected as a matter of course.

 

• A compilation that contains an obvious selection, coordination, and/or arrangement of material, such as a complete list of stories written by Zane Grey between 1930 and 1939, a complete collection of Arthur Conan Doyle’s Sherlock Holmes stories, or a collection of a feature writer’s contributions to a particular newspaper over a period of six months arranged in chronological order.

 

• A selection that is dictated by law, such as a law requiring a telephone company to publish a directory containing the names, addresses, and telephone numbers of its subscribers.

 

• A selection, coordination, and/or arrangement of data that is practically inevitable, such as a standard organizational chart.

 

• Mailing or subscriber lists that contain standard information about a predetermined group of people organized in an obvious manner, such as an alphabetical list of all the names, telephone numbers, and email addresses for the members of the graduating class of a particular college or university.

 

• A compilation that contains an exhaustive selection of information where the information is presented in sequential order, such as a genealogy containing a comprehensive selection of public records arranged in alphabetical or chronological order.