In the
rabbit hole
a monthly column
by A.C.E. Bauer
June 2006
Copyright Won’t
Give You An Hourly Wage
In 1982, Feist Publications, a business that published regional
telephone directories, decided to compile a directory for
northwest Kansas — a wide swath of land served by 11 different
telephone companies. Each of those companies had a copyrighted
telephone directory of its own, which had white pages with the
names, towns and telephone numbers of each of its customers, in
alphabetical order. Since the directories were distributed free
of charge to the public, the companies financed the publications
by selling listings to businesses for ads in the yellow pages.
Feist Publications approached all 11 telephone companies for
permission to use the listings in each company’s white pages.
All agreed, for a fee, except for one: Rural Telephone Service
Company, which didn’t want Feist to compete with its yellow page
listings. Feist decided to go ahead and use the information in
Rural Telephone’s directory anyway. It sifted through Rural’s
white pages, removed some listings, added street addresses to
others, and incorporated the bulk of Rural’s information into
its directory.
Rural Telephone sued, claiming Feist had violated its copyright.
It argued that it had done the work to compile the white pages
listings, and under a doctrine called “sweat of the brow,” it
was entitled to prevent anyone from copying the listings it had
created. If Feist wanted white pages, it should go door to door
and gather the information on its own.
Rural Telephone won, first in federal district court, then in
the federal court of appeals. Feist Publications appealed to the
United States Supreme Court. It was in a tough spot.
Feist faced a doctrine many courts had adopted over the course
of 70 years. Although facts and ideas are not copyrightable, compilations of the information can be. And a slew of courts
had ruled that all it took was a little effort on the part of
the person to compile the data to make that person an author,
and to make the work protected under copyright. One often-cited
decision, issued by a federal appeals court in Manhattan in
1922, put it this way:
The right to copyright a book upon which one has expended labor
in its preparation does not depend upon whether the materials
which he has collected consist or not of matters which are
public juris [public domain], or anything more than industrious
collection. The man who goes through the streets of a town and
puts down the names of each of the inhabitants, with their
occupation and street number acquires material of which he is
the author.1
A book
was granted protection because of the effort put into
creating the compilation. Copyright became a kind of payment for
labor done.
There were many flaws to this doctrine, not the least of which
was that facts, data which by their nature could not be
copyrighted, became copyrighted simply because someone had
compiled them together. Another flaw, and the one most to my
concern, was the assumption that copyright was a reward for
someone’s labors. It isn’t, either as a matter of fact or, as
the Supreme Court would rule, as a matter of law.
First, facts. Writers are not compensated for the work they put
into their writings. They are paid for the actual words on the
page. Whether a writer takes two weeks to write a book or spends
two years doing research and writing, the compensation is based
on factors separate from the hours put in.2
A large number of magazines are fairly straightforward about
this: you get a certain number of cents per word. For books,
writers are paid an advance. If the book does well, the writer
may see royalties — a percentage of the sale of the book. But
first the writer has to pay off the advance, i.e., the total
royalties must equal the advance before any are forwarded to the
writer.
For the vast majority of books, the advance is all
writers see. A few authors sell enough books to pay off this
advance and see some royalties. Some do better than that and
start seeing a very small but steady income — enough to pay for
a vacation, maybe, or for the repair of an ailing furnace. A
tiny number of these authors will actually make enough money to
quit their day jobs. And then there are a handful who become
rich.
It’s those rich guys, by the way, that make it possible for the
publishers to keep on making all those advances that don’t
really pay off. On some level, the successful authors are
helping to compensate the less successful ones.
Let’s concentrate for a moment on one successful author, Octavia
Butler, as an example. She was, by all accounts, a genius in her
field. She won a MacArthur genius grant for it. Her
contributions to literature were undeniable, and at the time of
her untimely death, she had reached success in the pecuniary
sense. But it is only thanks to that MacArthur grant that she
was finally able to purchase a house, for the first time in her
life. She had achieved success in the literary sense long ago
but had not been particularly well compensated for it. She was
paid her advance, even received royalties. Yet no one would have
begrudged her more income from what she had accomplished. Why?
Because of aesthetics. She had created brilliant work and
deserved every penny she received, and then some. The work
itself, the words she used, the presentation and creation
deserved more. There was intrinsic value in her writing,
separate from the number of hours of toil she put into it, and
there is a sense that she should have been allowed to profit
longer because the work was worth more than what she had
received, so far.
This intrinsic value of a work, the aesthetics of the creation,
is extraordinarily difficult to assess. That’s because it is a
subjective assessment of what a book is worth. A publisher,
justifiably, needs something a little more solid to decide which
works to invest in and which should be left by the wayside. And
so it hires editors, folks knowledgeable (one would hope) in
the field, who weigh how well a work is written, how fresh the
ideas are presented, how compelling the story will be for a
reader, how the market might react to this new piece of work.
They have to answer the question, will it sell?
The answer to this question comes down to the work itself.
Sometimes the name of the author. But ultimately, what’s put on
those printed pages. And that is what a writer is paid for.
As a matter of law, that is also what copyright protects. The
value lies in the book, not in the hours the author put in to
write the work. The author’s reward for creating this object is
control over the property.
At this point someone invariably starts jumping up and down and
saying that these are ideas and ideas belong to
everyone. Yeah. Sure. But what was written down, the way it was
written down, the way everything was pulled together, the damned
book isn’t an idea. It’s a book. A whole unto itself. An object
that I can throw across a room and brain someone with. And if
you want to have your own copy to brain someone else with, then
you have to get the author’s permission to make that copy.
You can also use a brick. And you can make a brick, the exact
copy of mine, without getting anyone’s permission. That’s
because the brick is a rectangular piece of clay. The book, on
the other hand, has words pulled together in a certain way that
makes people think, maybe laugh, maybe cry, maybe makes them
want to brain someone (the author, perhaps). And the way all
those words are pulled together form an aesthetic, a subjective
value for this object. Copyright protects this subjective value:
the ideas as presented in the way the author devised them.
Now, as a society, we could decide that a book is like a piece
of clay. You sell the one book, and then, that’s it, it belongs
to the new person who can do as he or she pleases with it,
including photocopying it, rebinding it and selling it to a
million people. But three hundred years ago, we decided that
books, as objects, are different than clay. They convey value
beyond the binding and pages. The contents have meaning, and
that is a value in itself. And the author, for creating this
object with meaning, should be able to control the use of the
object, and should be compensated for the distribution of
further objects with this meaning. Copyright embodied this idea.
The object, the book, is protected so that the author can
benefit from this creation — the author does not benefit from
the toil in creating the book, but from the book itself. It’s
not salaried work, but piecework, with the bonus that since we,
as a society value books much more than clay, the author gets to
control this piece for a set period of time.3
But what about Feist Publications? Didn’t it steal from Rural
Telephone’s white pages? It did, but the United States Supreme
Court ruled that what they took were facts: the names, towns and
telephone numbers of subscribers. Compilations may be protected
under copyright, but Rural did nothing more than list the facts
in alphabetical order — nothing original happened here. And
copyright protects original compilations, i.e. some
thought or creativity needs to be put into the way the data is
organized, and the copyright extends only to the
organization of the data, not the data itself. As the Supreme
Court explained:
This decision should not be construed as demeaning Rural’s
efforts in compiling its directory, but rather as making clear
that copyright rewards originality, not effort. As this Court
noted more than a century ago, “great praise may be due to the
plaintiffs for their industry and enterprise in publishing this
paper, yet the law does not contemplate their being rewarded in
this way.” 4
You can work as hard as you want. But until you’ve created
something original, you don’t get a copyright. And if you create
something original in just one hour, then it’s yours. You can
copyright it. You can decide how to publish it, who can copy it
when, and, if it has real intrinsic value, you may do well. It
is what copyright gives you — as a matter of fact and law.
1. Jeweler’s Circular
Publishing Co. v. Keystone Publishing, 281 F. 83, 88 (CA2
1922).
2. An exception to this
rule are writers who are employed on a salaried basis, or have a
contract to complete a specific project, and whose writings
belong to the organization that hired them. But, tellingly, in
these work for hire cases where writers are paid for the
toil they put in, writers do not acquire a copyright in their
works.
3. Over time, this
copyright has extended to other objects — photos, recordings,
moving images, publications both physical and on the internet,
and more. But the idea remains: the work and its attendant
meaning must bear some tangible form, be “fixed” for it to be
copyrighted.
4. Feist Publications,
Inc. v. Rural Telephone Service Co., 499 U.S. 340, 364 (1991),
citing Baker v. Selden, 101 U.S. 99, 105 (1880).
