November 02, 2003
(Updated) Copyright, Compilations, And Databases In The Dispute Between 'BarFly' And 'Lounge Lizard'
Note: This post has been updated. Any and all updates appear at the end of the original post.
Writing for oneself via weblog has the charm of being able to cover stories before anyone else gets to them. Last week, Willamette Week and The Portland Mercury caught up to the dispute between two bar magazines, which I covered a week earlier.
Over in WW, they managed to obtain comment from Lake Perriguey, the attorney for Lounge Lizard:
Lounge Lizard attorney Lake Perriguey contends that the issue at hand is not whether his client (publisher Andre Washington) copied content from Lane's publication. The issue, he says, is whether such information would be considered copyrighted.
"The legal question is whether there is proprietary interest in the information in question," says Perriguey. "If the information lacks a creative element, then it does not qualify. Copyright protection does not extend to the sweat of the brow in putting together factual information."
Perriguey said his client denies copying any "proprietary" information.
For the sake of completeness, I will link to the brief item from the Mercury, although it's merely a recap of what's already been covered in terms of the basic dispute.
What continues to be in question is the range of material alleged to have been infringed. In her original email to BarFly readers, publisher Jen Lane did give an example of her claim that Lounge Lizard had lifted material from her magazine's bar listings. But she also alleged that her competition copied "much of my original creative writing." Thus far, I've been unable to ascertain to what material this allegation refers.
"I have requested a description of what specific expression Ms. Lane is claiming a Constitutional guaranteed monopoly, ie, a copyright but have not received it," said Lake Perriguey via email:
In the mass email that I saw, in which she apparantly "copied" an entire page of my client's publication, without my client's permission, nothing that was highlighted appeared to warrant a copyright monopoly. If such information did, it would be very difficult for anyone else to enter the marketplace or to advertise when something is open and whether an establishment has drink specials.
Of course, as is usually the case in disputes like this one, it doesn't apepar to be as cut-and-dried as either side would have us believe, at least as it regards the bar listings (which is the only aspect of the case we can examine until and unless it's made clear what sort of "original creative writing" is alleged also to have been infringed).
Taking a look at an article or two on database protection (a decent starting point, since the BarFly listings also appear as a database on the magazine's website), we find that databases are protected as "compilations" under copyright law.
According to the first article referenced above, copyright law defines a compilation thusly: "[F]ormed by the collection and assembling of preexisting materials or of data that are selected, coordinated or arranged in such a way that the resulting work as a whole constitutes an original work of authorship."
It also states that a compilation is protected as a form of literary work, specifically in the selection of the contents; the coordination of the contents internally; the arrangement of all of all elements of the database; and the contents itself.
At the same time, according to the second above-referenced article, copyright law also "specifically states that the copyright in a compilation extends only to the compilation itself, and not to the underlying materials or data."
It would seem, then, that what is going to be at issue as the dispute between BarFly and Lounge Lizard moves forward are the following: First, did Lounge Lizard obtain their facts for its bar listings on its own, or did it simply pull them from BarFly; and second, is it a violation of the copyright protection given to compilations if Lounge Lizard engaged in the latter rather than the former?
All of which, of course, says nothing about the allegation regarding infringement of Lane's "original creative writing," a matter about which I have still not received explanatory comment from either Lane or her attorney, but about which I'm sure we'll hear more eventually.
Update
I need to go back and specifically address Perriguey's reference to "sweat of the brow" protection (or lack thereof), and I'll use that second law article referenced above to do so.
What appears to be the central court case relevant to this issue is one called Feist Publications, Inc. v. Rural Telephone Service Company, Inc. The article has this to say about the U.S. Supreme Court's decision in that case:
This holding overruled numerous lower courts that adopted a "sweat of the brow" or "industrious collection" test of copyrightability. Under this test, if a compilation was created as a result of a great deal of effort (such as the collection of thousands of names and addresses), copyright protection would extend to the compilation regardless of the creativity or originality in the selection, coordination, or arrangement of the facts.
However, according to the same article, the Court also said that "a compilation is not copyrightable per se, but is copyrightable only if its facts have been 'selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship,' citing the definition of a compilation" contained in copyright law.
So the hinge issue would appear to be whether or not Lane's selection, coordination, and/or arrangement of the facts contained in the BarFly listings resulted in "an original work of authorship" -- and if it did, is there a violation of copyright law in a competing magazine lifting that work's factual data directly from the work rather than obtaining them on its own?
Comments (1)
kona on 03 Nov 2003
well. it seems more than just a compilation of venues, hours open, etc. i read barfly just a couple weeks ago while waiting for a friend in a bar, and it seemed very opinionated. it had opinions on what was a 'gay club', what was a 'hip club', what was a 'techno club', etc. from a legal standpoint, not only do i consider those opinions to be 'sweat of the brow', but very unique and therefore defacto copywrited. course the mag intself wasnt my cup of tea, as i prefer tea and rarely go out to bars- but the point is, i do think the editor of barfly has a point.