17.16 Compilation (17 U.S.C. § 101)

            An owner is entitled to copyright protection of a compilation.  A compilation is a work formed 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. 

            The owner of a compilation may enforce the right to exclude others in an action for copyright infringement. 

Comment 

            Facts and ideas are not copyrightable, but compilations of facts may be copyrightable even where the underlying facts are not.  See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344 (1991) (holding that factual compilations are sufficiently original to be copyrightable if choices as to selection and arrangement of facts are independently made by compiler); Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003) (“[A] combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”).  Copyright in a compilation “extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work.”  17 U.S.C. § 103(b).  The term “compilation” includes collective works.  See 17 U.S.C. § 101.  

            For Ninth Circuit cases considering compilations, see Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1146 (9th Cir. 2003) (“[The] mechanical combination of four preexisting ceiling-lamp elements with a preexisting table-lamp base did not result in the expression of an original work of authorship . . . .”); Satava, 323 F.3d at 811 (holding that combination of six unprotectable elements that were “so commonplace in glass-in-glass sculpture and so typical of jellyfish physiology” were not eligible for copyright protection); CDN Inc. v. Kapes, 197 F.3d 1256, 1259-61 (9th Cir. 1999) (examining and reviewing major coin publications to create list of coin prices satisfied requisite level of originality for copyright as compilation). 

            When a plaintiff alleges infringement of a compilation, it is not enough to show that only part of the work has been copied.  “[W]e have repeatedly recognized in this circuit that when dealing with factual compilations, infringement cannot be based on a showing that only a part of the work has been copied. In the context of factual compilations, we have held that infringement should not be found in the absence of “bodily appropriation of expression,” or “unauthorized use of substantially the entire item.”  Experian Info. Sols., Inc. v. Nationwide Mktg. Servs. Inc., 893 F.3d 1176, 1186 (9th Cir. 2018) (affirming grant of summary judgment when defendant’s database comprised at most 80 percent of plaintiff’s copyrighted compilation) (quoting Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 205 (9th Cir. 1989)). 

Revised Sept 2018