Thursday, August 23, 2012

Is Hard Work Creative?

Creativity can be hard work, but hard work isn't creative.

So far we have discovered that you can't copyright (1) titles, names, short phrases and slogans; (2) ideas; and (3) facts. This month we will cover a fourth category: material composed entirely of information that is common property and contains no original elements. It doesn't matter how hard you worked to compile and arrange the information.

Take telephone books, for example. They are composed of public facts (names, telephone numbers, and addresses) and organized based on logic rather than creativity. Think how useless a telephone book would be if the white pages weren't arranged alphabetically and the yellow pages weren't arranged by business category. It may not be fair when someone else copies your material and reaps the benefits of your hard work, but it is not a copyright violation.*

So what about cookbooks? You can't copyright recipes, but some cookbooks contain additional material. Where this mixture occurs, the publisher copyrights the compilation as a unit but knows that the individual elements retain their status as copyrightable or uncopyrightable material.

Look at these pages in The Melting Pot: A Quick and Easy Blend of Israeli Cuisine, by Tami Lehman-Wilzig and Miriam Blum. The page on the right lists the ingredients at the top then gives instructions on how to prepare the fish dish. The ingredients are facts and the instructions are procedures or methods that, as we will discover next month, also cannot be copyrighted. So anyone can copy the right-hand page word for word.

The left-hand page, however, contains creative material. The page starts with a copyrightable photograph, which is followed by the name of the recipe (not copyrightable), and ends with text that gives a short history on how fish were used in Jewish culture. While the facts given in that history cannot be copyrighted, the word arrangement can be. Since it would be inefficient and expensive to copyright each photograph and text entry separately, the cookbook itself is copyrighted as a compilation.

Of course, these same principles apply to other types of works. Readers to this blog are familiar with the Thomas Nelson publishing house. Harper House sued it for violating a copyright in a pocket organizer.** The court held that Thomas Nelson's version of the pocket organizer contained many of the same unprotectable elements (e.g., blank forms) but had not borrowed the copyrightable text.

Join me next month when I discuss the final category of uncopyrightable material.

Kathryn Page Camp


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

** Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197 (9th Cir. 1989).