Inthis case, the selection of Geographical listings includes the member name, address,
telephone number, membership category, and type of therapist (registered and/or sports
massage therapist). The membership categories consist of: professional, associate, school,
auxiliary, and honorary; and are also broken down further into active, inactive, or retired.
While the name, address, and telephone number is “entirely typical” of a directory, the listing
of the membership category and type of therapist produces a sufficiently creative selection
to make it original. Id. at 363.

Furthermore, Feist noted factual compilations may possess the requisite originality.
Id. at 348. Choices as to which facts to include, the order of placement, and how to arrange
the data so they may be used effectively by readers are sufficiently original that Congress
may protect such compilations through the copyright laws so long as the choices are made
independently by the compiler and entail a minimal degree of creativity. Id. “Even a
directory that contains absolutely no protectible written expression, only facts, meets the
constitutional minimum for copyright protection if it features an original selection or
arrangement.” Jd.

However, Feist placed an important limitation on this protection. Jd. Namely,
“copyright protection may extend only to those components of a work that are original to the
author.” Id. Moreover, no matter how original the format, “the facts themselves do not
become original through association.” Jd. at 349. Feist stated the rule as follows:

Facts, whether alone or as part of a compilation, are not original and therefore
may not be copyrighted. A factual compilation is eligible for copyright if it

13


Allied, Auxiliary, and Honorary) and then alphabetized within each category. (Id. at 375-
477).

The 1999 Registry contained the above mentioned eight categories of membership,
which were defined and described in the Association bylaws. (Def. Res. ]8). In 1998, when
the 1999 Registry was being prepared, AMTA’s policy and practice included revoking the
membership of any member who failed to meet the appropriate criteria for membership
pursuant to Article III, Section 7 of the bylaws and only members in good standing were
listed. (Def. Res. { 9).

AMTA offered members the option of being listed, or not, in the 1999 Registry, as
well as the option of being listed on any mailing list of members of AMTA leased to third
parties as a mailing list. (Def. Res. 410). Approximately 4,000 members, who wanted their
names and addresses listed in the 1999 Registry, indicated they did not want their names
leased to third parties. (/d.).

The 1999 Registry contained the following restrictions in use:

This Registry contains confidential information and is intended for the
exclusive use of members of the American Massage Therapy Association. It
is maintained as a trade secret, is amembership benefit of the Association, and
is specifically designed for membership networking, improved
communication, and professional referrals. Possession of, access to, or use by
any other means of this Registry does not imply permission to utilize it as a

mailing list or for any purpose not stated in the preceding sentence, and is
strictly prohibited.


of the 1989-90 Key Directory — for example, all its listings of professionals
such as medical doctors, lawyers, accountants, engineers and architects, an
infringement action would succeed. However, there is no claim that such
duplication occurred here.
945 F.2d at 517. The Nester court appropriately points out, that while read in isolation, this
passage may suggest the amount of copying was critical to a finding of infringement, read
as a whole, the Key Publications court repeatedly identified the “principles guiding selection”
of a copied compilation, not the amount of copying, as the critical factor. Nester, 796
F.Supp. at 734 citing Key Publ’n, 945 F.2d at 516. And under Feist, unless it is original,
Defendant is not liable for copyright infringement. 499 U.S. 340.

This Court concludes the names and addresses copied by Defendant were not original
to Plaintiff and were uncopyrightable facts, the selection of the listings were original and
creative, but the coordination and arrangement of the facts were not original. However,
because the Defendant only copied the facts from the 1999 Registry, the names and addresses
in Plaintiff's 1999 Registry are not protected by Plaintiff's copyright.

B. Civil Conspiracy

The parties agree Plaintiffs civil conspiracy claim is based on the Copyright Act
violation. Therefore, because this Court finds Defendant did not infringe Plaintiff's
copyright in the 1999 Registry, this Court also finds Defendant is not liable for civil
conspiracy. Thomas & Betts Corp. v. Panduit Corp., 108 F.Supp.2d 968, 975 (N.D.Ill. 2000)

(dismissing plaintiff's civil conspiracy claim because it and the trade secret misappropriation

claims were redundant, thus the civil conspiracy claim was abolished).

17


could reasonably find for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986). This burden must be met by appropriate citations to relevant evidence and
cannot be met with conclusory statements or speculation. Brasic v. Heinemann’s Inc.,
Bakeries, 121 F.3d 281, 286 (7th Cir. 1997). Weighing evidence, deciding credibility, and
inferring reasonable deductions are responsibilities for a jury and not for a judge to decide
in making a summary judgment determination. Anderson, 477 U.S, at 255.

In filing cross-motions for summary judgment, the parties are not waiving a trial on
the merits, each party is merely asking the court to grant it judgment without a trial, unless
the judge disagrees. Miller v. LeSea Broadcasting, Inc., 87 F.3d 224, 230 (7th Cir. 1996).
Each movant must individually fulfill the requirements necessary to obtain summary
judgment under Rule 56. United Transportation Union v. Illinois Central R.R., 998 F. Supp.
874, 880 (N.D. Ill. 1998). The court is not required to grant summary judgment as a matter
of law for either side when faced with cross-motions for summary judgment. Vartanian v.
Metropolitan Life Insurance Co., 2002 WL 484852 *4 (N.D.IIl. 2002). Rather, the court is
to evaluate each motion on its merits, resolving factual uncertainties and drawing all
reasonable inferences against the movant. Brownlee v. City of Chicago, 983 F.Supp. 776, 779
(N.D. IIL. 1997).

III. ISSUES TO BE DECIDED
The cross-motions for summary judgment raise the question of whether material

issues of fact exist regarding the following issues: 1) whether Defendant infringed Plaintiff's


completed by an employee of Defendant. (Def. Res. { 16). The contents of the 1999
Registry were “valuable” according to MacKilligan. (Def. Res. § 17).
FE Defendant Copies Portions of the 1999 Registry

To compile the mailing list of massages therapists, Defendant obtained massage
therapist names from regulatory agencies in states which regulated them, however that was
only about half of all states. (Def. Res. { 18). Therefore, Defendant copied 17,617 names
and addresses from the 1999 Registry. (PI. Res. | 14). Defendant’s president admitted
taking the names from the 1999 Registry because “We did not have them.” (Def. Res. { 20;
Pl. Stat. Uncon. Facts, Ex. E at 33*). Furthermore, during oral argument in this case, both
parties agreed the only portion of the 1999 Registry copied by Defendant were names and
addresses.
G. Defendant Uses the Names and Addresses from the 1999 Registry

Defendant added the names and addresses from the 1999 Registry to its existing
database. (Pl. Res. J 15). Defendant’s database included the names and addresses Defendant
copied from the 1999 Registry as well as approximately 73,000 names and addresses of other
massage therapists. (Pl. Res. { 16; Def. Stat. Uncon. Facts, Ex. G at 31-32°). Defendant used

the names and addresses on its database as a mailing list for its magazine, Massage Today.

‘PI. Stat. Uncon. Facts refers to Plaintiff’s Statement of Uncontested Material Facts.

° Def. State Uncon. Facts refers to Defendant’s Statement of Uncontested Material Facts
in Support of Motion for Summary Judgment.


(Def. Res. ] 24; Pl. St. Add. Facts, Ex. C at 1)? and
The information contained in this publication is the property of the American
Massage Therapy Association, is highly confidential, and may not be
duplicated or used except for the personal use of the authorized recipient of
the Registry. The contents of this Registry may not be used as a mailing list
and may not be reproduced or stored electronically or copied in any manner
whatsoever without advance written permission of AMTA.
(PI. St. Add. Facts, Ex. C at 27).
D. Copyright
AMTA registered its copyright in the 1999 Registry with the United States Copyright
Office, and was assigned Registration No. Tx-05436436. (Def. Res. 5).
E. Defendant Obtains A Copy of the 1999 Registry
Defendant obtained a copy of the 1999 Registry from Diane Routh, a friend of its
employee, JoAnn MacKilligan, who was given the task of compiling a mailing list of
massage therapists, by Defendant’s sole owner, Donald M. Petersen, Jr. (Def. Res. § 12).
Routh was an ex-employee of Defendant. (Def. Res. J 13). The copy of the 1999 Registry
received by MacKilligan contained pages listing AMTA member names and addresses in 50
states and the District of Columbia, and, except for five states, each of these pages for each
state (303 out of a total of 345) had the word “Done” written on it. (Def. Res. § 14).

MacKilligan testified the markings of the word “Done” were not on the 1999 Registry when

she obtained it. (Def. Res. 15). Rather, the marking of “Done” on the 1999 Registry was

> PI. St. Add. Facts refers to Plaintiff's Rule 56.1(b) Statement of Additional Facts in
Opposition to Defendant’s Statement of Uncontested Material Facts.

5


IV. CONCLUSION
This case raises no fact questions for a jury to decide. Defendant did not infringe on
Plaintiffs copyright of the 1999 Registry because Defendant only copied uncopyrightable
facts. Similarly, Defendant is not liable for civil conspiracy. Therefore, Plaintiff's Motion
for Summary Judgment is denied and Defendant’s Motion for Summary Judgment is

granted as to Counts III and VI of Plaintiff’s Complaint.

Mritin, Oonbyus

MORTON DENLOW
United States Magistrate Judge

SO ORDERED THIS 18" DAY OF JULY, 2002.

Copies mailed to:

Gene H. Hansen Timothy J. Rivelli

Bullwinkel Partners, Ltd.

19 S. LaSalle Street
Suite 1300

Chicago, Illinois 60603
(312) 201-0777

Attorney for Plaintiff

Julie A. Bauer

Kareem A. Dale
Winston & Strawn

35 West Wacker Drive
Chicago, Illinois 60601
(312) 558-5600

Attorneys for Defendant


II. SUMMARY JUDGMENT STANDARD

Plaintiff and Defendant filed cross-motions for summary judgement on the issues of
copyright infringement and common law conspiracy. Summary judgment is proper “if the
pleadings, depositions, answers to interrogatories and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Sivkler v.
Midwest Prop Mgmt. Ltd. P’ship, 209 F.3d 678, 682-83 (7th Cir. 2000). A genuine issue of
material fact exists for trial when, in viewing the record and all reasonable inferences drawn
from it in a light most favorable to the non-movant, a reasonable jury could return a verdict
for the non-movant. Sinkler, 209 F.3d at 683; Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th
Cir. 1998).

The movant bears the burden of establishing no genuine issue of material fact exists.
Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995); Celotex Corp. v. Catrett,
477 US. 317, 323 (1986). Ifthe movant meets this burden, the non-movant must set forth
specific facts that demonstrate the existence ofa genuine issue for trial. Rule 56 (c); Celotex,
477 US. at 324, Rule 56(c) mandates the entry of summary judgment against a party "who
fails to make a showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S.

at 322. A fragment of evidence in support of the non-movant's position is insufficient to

successfully oppose a summary judgment motion; "there must be evidence on which the jury


a

Minwe Order Form (0697)

United States District Court, Northern District of Illinois

Name of Assigned Judge , Sitting Judge if Other
or Magistrate Judge Morton Denlow than Assigned Judge
CASE NUMBER 01 C3193 DATE 7118/2002
CASE American Massage Therapy Association Vs. Maxwell Petersen Associates, Inc.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
f ion being presented.
MOTION: of the motion being presented.)
DOCKET ENTRY:
qd) oO Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) a Answer brief to motion due. . Reply to answer brief due.
(4) a Ruling/Hearing on set for at
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for} on _setfor_ se at__
(7) Qo Trial[set for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs{by/agreement/pursuant to}
OFRCP4(m) General Rule 21 OFRCP41(a\(1) OFRCP4I(a)(2).
ao [Other docket entry) Enter Memorandum Opinion and Order. Plaintiff's motion for summary
judgment is denied and Defendant’s motion for summary judgment [22-1] is granted as to Counts III and
VI of Plaintiff's complaint.
ai) (For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
. A UN
No notices required, umber ot notices me
vu | Notices mailed by judge's staff.
Notified counsel by telephone.
Docketing to mail notices.
Mail AO 450 form. lac docketing deputy initials ¢
Copy to judge/magistrate judge. Lungs os
T8202
~ date mailed notice
courtroom “ *
oO me Si 39 lid 81 “nh 20 .
initials
naling deputy intaks

O Toga etree



specialized in area-wide telephone directories. Jd. at 342. After plaintiff refused to license
its white pages listings to defendant, defendant used them without plaintiff's consent. Id. at
343. Plaintiff then sued for copyright infringement. Jd. at 344.

The Feist Court found the raw data (names, towns, and telephone numbers) did not
satisfy the originality requirement because while plaintiff may have been the first to discover
and report the raw data, this data did not “ow[e] its origin” to plaintiff. Id. at 361. The Feist
Court held the data was uncopyrightable facts and as such, the originality requirement “rules
out protecting ... names, addresses, and telephone numbers of which the plaintiff by no
stretch of the imagination could be called the author.” Jd. Relying on Feist, the Seventh
Circuit found identification of recipe ingredients necessary to prepare a dish a statement of
facts in Publications International, Limited v. Meredith Corp., 88 F.3d 473, 480 (7th Cir.
1996). The court did not view the functional listing of ingredients as original within the
meaning of the Copyright Act. Id.

By comparison, the copying by Defendant of the names and addresses in the 1999
Registry does not amount to copyright infringement. Plaintiff's former executive director,
Marlys Sperger, testified certain names and addresses contained in the 1999 Registry were
not “original” to AMTA. (Def. Stat. Uncon. Facts, Ex. E at 17; Pl. Res. 17). Plaintiff may
have been the first to discover and report the names and addresses but this data does not
“owfe] its origin” to Plaintiff. Feist Publ’n, 499 U.S. at 361. Moreover, Section 103(b) of

the Copyright Act explicitly states the copyright in a compilation does not extend to “the

il


copyright and 2) whether Defendant civilly conspired against Plaintiff. Oral argument was
held on July 11, 2002.
A. Copyright Infringement

The issue before this Court is to determine whether the copyright in Plaintiff's 1999
Registry protects the names and addresses copied by Defendant. To establish copyright
infringement, Plaintiff must prove two elements: 1) ownership of a valid copyright, and 2)
copying of constituent elements of the work that are original. Feist Publ’n, Inc. v. Rural Tel.
Service Co., Inc., 499 U.S. 340, 361 (1991). The first element is not at issue here; Defendant
concedes the 1999 Registry, considered as a whole, is a valid copyright. Therefore, the
question is whether Plaintiff proved the second element. Namely, did Defendant, by copying
17,617 names and addresses from the 1999 Registry copy anything that was “original” to
Plaintiff?

Feist is the leading case in this area and offers much insight into the issue before this
Court. In Feist, the plaintiff was a telephone company required by a state regulation to
annually issue an updated telephone directory. Jd. at 342. The plaintiff published a typical
telephone directory consisting of white pages, which listed in alphabetical order the names,
towns and telephone numbers of plaintiff’s subscribers, and yellow pages which listed
business subscribers alphabetically by category and featured advertisements. Jd. Plaintiff
obtained the data for its directory when its subscribers provided their names and addresses

when applying for phone service. Id. at 343. The defendant was a publishing company

10


(PL R. 56.1(b) St., Ex. A at 15, 19, 45%,

Marlys Sperger, AMTA’s former executive director, testified, to her knowledge,
Defendant only utilized the membership list and she has not seen a registry produced by
Defendant. (Def. Stat. Uncon. Facts, Ex. E at 17-19). Sperger also stated certain names in
the 1999 Registry were not “original” to AMTA. (Def. Stat. Uncon. Facts, Ex. E at 17; Pl.
Res. ¥ 17).

Defendant also sold or rented the names on its database. (PI. R. 56.1(b) St., Ex. A at
18-20, 45-53). The greater the number of names on Defendant’s mailing list, the greater
amount of revenue Defendant could generate for rental of those mailing lists. (Def. Res.
22). Defendant also provided the 17,617 names to an advertiser on a one-time basis in
exchange for advertising. (Def. Res. { 23; Def. Res., Ex. B at 45-46).

H. = Mailing List Charges

Defendant operates a massage therapist locator service which attempts to impose a
$5.00 per name fee for anyone who makes commercial use of the names obtained through
the service. (Def. Res. ] 28). Plaintiff rented its names at a rate of $0.16 per name for each
thousand names during the relevant time period. (Def. Res. { 29; Def. Res., Ex. E).
Defendant collected $963.03 from the rental of AMTA names and addresses it took from the
1999 Registry and gave names worth $704.68 in rental value to a customer as an incentive

to do business with Defendant. (Def. Res. § 30).

° PI. R. 56.1(b) St. refers to Plaintiffs Rule 56.1(b) Statement of Additional Facts In
Opposition to Defendant’s Statement of Uncontested Material Facts.

7


The 1999 Registry contains a roster of officers and staff, corporate bylaws, and the names
and addresses of 36,399 members, listed geographically (“Geographical”) and by category
of membership (“Alphabetical”). (/d.). AMTA membership criteria ‘are defined by the
AMTA Bylaws. (/d.). The 1 999 Registry also contains a cover with two pairs of hands
touching, a table of contents, a list of the AMTA Board of Directors, a mission statement,
a list of goals, a code of ethics, and a list of AMTA staff. (PI. Res. § 12). Over 35,000
copies of the 1999 Registry were distributed. (Pl. Res. § 13). .

The listings in the Geographical portion of the 1999 Registry include the member
name, address, telephone number, membership category, and type of therapist (registered
and/or sports massage therapist). (PI. St. Add. Facts, Ex. C at 27). The membership
categories consist of: professional, associate, school, auxiliary, and honorary; and are also
broken down further into active, inactive, or retired. (/d. at 29). Plaintiff arranged the
membership listing geographically, first by United States of America, then military location,
followed by international countries. (Jd. at 27). The city, military base, or island is then
listed. (Id. at 27-374). Then the therapists are listed alphabetically in each city, military base,
or island. (/d.).

The listings in the Alphabetical portion of the 1999 Registry includes the member
name, type of therapist (registered and/or sports massage therapist), and the reference page

for contact information in the Geographical section. (Pl. St. Add. Facts, Ex. C at 375).

Plaintiff ordered the members first by membership category (Professional, Associate, School,


features an original selection or arrangement of facts, but the copyright is
limited to the particular selection or arrangement. In no event may copyright
extend to the facts themselves.
Id. at 350-51; see also Publ’n Int’l, Ltd., 88 F.3d at 480 (relying on Feist in ruling
defendant’s compilation copyright in its recipe book, “Discover Dannon,” did not extend to
the facts contained within the compilation).

Furthermore, in holding a yellow page directory was not infringed, the Second Circuit
stated the test for infringement of a compilation is a showing of substantial similarity
between only the elements that provide copyrightability to the allegedly infringed
compilation. Key Publ’n, Inc. y. Chinatown Today Publ’g Enter., Inc., 945 F.2d 509, 514
(2nd Cir. 1991). Here, although the selection of information for the 1999 Registry is
sufficiently creative to be eligible for copyright, the copyright does not extend to the
underlying facts, namely the names and addresses of therapists because “raw facts may be
copied at will.” Feist Publ’n, Inc., 499 U.S. at 350.

Turning to the coordination or arrangement of the 1999 Registry, arrangement refers
to the ordering or grouping of data into lists or categories stretching beyond mere mechanical
groupings of data such as the alphabetical, chronological, or sequential listings of data. Key
Publ’n, Inc., 945 F.2d at 513. The Feist Court analyzed the coordination and arrangement
of facts finding “nothing remotely creative about arranging names alphabetically in a white

pages directory.” Feist Publ’n, Inc., 499 U.S. at 363. The Court found this time-honored

tradition of arranging names alphabetically did not possess the minimal creative spark

14


underlying facts are not eligible for copyright protection. Jd. at 350-51.

While this Court acknowledges the time and effort Plaintiff expended in creating the
1999 Registry, the “primary objective of copyright is not to reward the labor of authors, but
to promote the Progress of Science and useful Arts.” Jd. at 349 (internal quotations omitted);
see also Mid America Title Co. v. Kirk, 59 F.3d 719, 721 (7th Cir. 1995) (finding the amount
oftime and effort plaintiffinvested in gathering and reporting preexisting factual information
for its real estate title commitment, such as the property’s legal description, taxes, and
mortgage, is irrelevant, “since originality, and not industry, is the touchstone of copyright
protection”). Feist rejected the “sweat of the brow” doctrine and explained 17 U.S.C. §
102(b)’ is universally understood to prohibit any copyright in facts. Id. at 352-57; see also
Key Publ’n, Inc., 945 F.2d at 516 (acknowledging the abandonment of the “sweat of the
brow” doctrine).

Plaintiff relies on Key Publ’n, Inc., 945 F.2d at 517 and Nester’s Map & Guide Corp.
vy. Hagstrom Map Co., 796 F.Supp. 729, 733-34 (E.D.N.Y. 1992) for the proposition that
when a significant portion of the entire compilation is taken and used by the defendant,
copyright protection may be given. Plaintiff refers to the following language in the Key
Publications decision for support:

Ifthe Galore Directory had exactly duplicated a substantial designated portion

° In no case does copyright protection for an original work of authorship extend to any
idea, procedure, process, system, method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained, illustrated, or embodied in such work.
17 U.S.C. § 102(b).

16


I. BACKGROUND FACTS

A. The Parties

Plaintiff, an association of professional massage therapists, is a not-for-profit
corporation with its principal place of business in Evanston, Illinois. (Pl. Res. ]2'; Def. Res.
41°). Defendant is a California corporation, marketing and public relations publishing firm
that owns the fictitious business names “Massage Today” and “MPAmedia” and publishes
the magazine Massage Today. (P1. Res. § 1; Def. Res. § 2).
B. Motion to Dismiss

Plaintiff filed a six-count complaint against Defendant alleging violations of the
Lanham Act, copyright infringement, common law misappropriation, common law unfair
competition, and civil conspiracy. Defendant moved to dismiss all counts. Judge George W.
Lindberg, of this court, dismissed Counts I and II (Lanham Act claims), Count IV (common
law misappropriation), and Count V (common law unfair competition). Judge Lindberg
allowed Count III (copyright infringement) and Count VI (common law conspiracy) to stand.
(Minute Order 8/29/01).
C. The 1999 AMTA Registry

Plaintiff created the 1999 AMTA Registry (“the 1999 Registry”). (Def. Res. § 4).

' PL. Res. refers to Plaintiffs Rule 56.1(b) Response to Defendant’s Statement of
Uncontested Material Facts,

? Def. Res. refers to Defendant’s Response to Plaintiff’s Statement of Uncontested
Material Facts.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS veren
EASTERN DIVISION DOCKETEF

JUL 1 9 2002

AMERICAN MASSAGE THERAPY
ASSOCIATION, a Delaware not-for-profit
corporation,
Plaintiff, No. 01 C 3193
Vv. Magistrate Judge Morton Denlow

MAXWELL PETERSEN ASSOCIATES,
INC., a California corporation,

)
)
)
)
)
)
)
)
)
)
)
)

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff American Massage Therapy Association (“Plaintiff or “AMTA”) filed a six-
count complaint against Maxwell Peterson Associates, Inc., (“Defendant” or “MPA”) arising
out of Defendant’s copying of thousands of names from Plaintiff's membership directory.
The complaint alleged violations of the Copyright Act, violations of the Lanham Act,
common law misappropriation, common law unfair competition, and civil conspiracy. Four
counts were dismissed on Defendant’s motion to dismiss. The parties filed cross-motions
for summary judgment on the remaining two counts: copyright violation and civil conspiracy.
This case raises the issue of whether copying 17,617 names and addresses from a directory
amounts to copyright infringement. For the following reasons, this Court holds the copying
does not amount to copyright infringement and grants Defendant’s motion for summary

judgment and denies Plaintiff's motion for summary judgment.


preexisting material employed in the work.” Jd. at 361-62; 17 U.S.C. § 103(b)’.

Therefore, the next question is whether Plaintiff selected, coordinated, or arranged
these uncopyrightable facts in an original way. Originality is not a stringent standard; it does
not require facts be presented in an innovative or surprising way. Id. at 362. However, the
selection and arrangement of facts cannot be so mechanical or routine as to require no
creativity whatsoever. Jd. In fact, the “Constitution mandates some minimal degree of
creativity.” Id.

In Feist, the Court held the selection, coordination, and arrangement of plaintiff's
white pages did not satisfy the minimum constitutional standards for copyright protection
because plaintiffs white pages were “entirely typical.” Id., see also Illinois Bell Tel. Co. v.
Haines and Co., Inc., 932 F.2d 610, 611(7th Cir. 1991) (finding subscriber listings were
arranged in a form “entirely typical” and thus did not merit copyright protection, therefore,
the defendant’s copying of subscriber information contained in the White Pages and arranged
differently than plaintiff was not copyright infringement). The Feist Court stated the
selection of listings was insufficiently creative to make it original because the information
featured (the name, town, and telephone number) was the “most basic information.” 499

US. at 362-63. Therefore, the selection was not copyrightable expression. Jd. at 362.

7 The copyright in a compilation or derivative work extends only to the material
contributed by the author of such work, as distinguished from the preexisting material employed
in the work, and does not imply any exclusive right in the preexisting material. The copyright in
such work is independent of, and does not affect or enlarge the scope, duration, ownership, or
subsistence of, any copyright protection in the preexisting material. 17 U.S.C. § 103(b).

12


required by the Copyright Act and the Constitution. /d. Thus, the Court held the names,
towns, and telephone numbers copied by defendant were not original and therefore were not
protected by the copyright. Jd. The Court noted, as a statutory matter, 17 U.S.C. § 1018 did
not afford protection from copying to a collection of facts selected, coordinated, or arranged
in a way utterly lacking originality. Jd. at 363-64.

In this case, Plaintiff arranged the membership listing geographically, first by United
States of America, then military location, followed by international countries. The city,
military base, or island is then listed. Then the therapists are listed alphabetically for each
city, etc. Feist held arranging names alphabetically in a white pages directory was not
creative, was unoriginal, and was practically inevitable. Jd. at 363. Similarly, the
alphabetized listing of therapists first broken down geographically then by state does not
possess the minimal creative spark required by the Copyright Act and the Constitution
because the mere fact that Plaintiffcould have arranged the 1999 Registry in some other form
does not elevate the listing to the level of creative. Id.; See e.g. Bellsouth Adver. & Publ’g
Corp. v. Donnelley Info. Publ’g, Inc., 999 F.2d 1436, 1442-43 (11th Cir. 1993) (finding the
“relevant inquiry is not whether there is some imaginable, although manifestly less useful,
method of arranging business telephone listings”). This coordination and arrangement of

facts is therefore, not original. Even had the coordination and arrangement been original, the

® A “compilation” is 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 term “compilation” includes
collective works. 17 U.S.C. § 101.

15