Vol 7 No 1 - Roger Williams University School of Law

arrangement.21In so holding, the Court repudiated a line of lower court cases thatheld that compilations of data were copyrightable per se, merelybecause they were the product of the “sweat of the brow” of theirproducers.22For almost a century, U.S. copyright protection had seemed toderive from two not altogether consistent theoretical models. Onthe one hand, the courts insisted that the sine qua non ofcopyright protection was the requirement of “originality,” whichwas defined to mean not only that the work was an independentcreation of the author (as opposed to being copied from otherworks), but also that it possessed at least some minimal degree ofcreativity.23 On the other hand, a competing line of lower courtdecisions involving compilations of data also embraced the “sweatof the brow” or “industrious collection” concept, which viewedcopyright protection as a reward for the hard work that went intocompiling facts.24The “sweat of the brow” doctrine, however, was seriouslyundermined by the Copyright Act of 197625 and then definitivelyput to rest by the Supreme Court in Feist. Section 103 of the 1976Copyright Act explicitly included compilations within the subjectmatter of copyright, but section 101 defined a “compilation” as a“work formed by the collection and assembling of preexistingmaterials or of data that are selected, coordinated, or arranged insuch a way that the resulting work as a whole constitutes anoriginal work of authorship.”26 Notwithstanding this language,some lower courts continued to reward “sweat of the brow” byextending copyright protection to mere facts,27 thus stimulating21. Id.22. Id. at 352-61.23. See The Trade-Mark Cases, 100 U.S. 82 (1879); Burrow-Giles Lithograph Co.,v. Sarony, 111 U.S. 53 (1884).24. See, e.g., Jeweler’s Circular Publ’g Co. v. Keystone Publ’g Co., 281 F. 83 (2dCir. 1922); Leon v. Pac. Tel. & Tel. Co., 91 F.2d 484 (9th Cir. 1937).25. 17 U.S.C. §§ 101-1332 (1994).26. Id. § 101.27. See, e.g., West Publ’g. Co. v. Mead Data Cent., Inc., 799 F.2d 1219 (8th Cir.1986) (holding that Mead Data Central’s proposal to introduce “star pagination”showing West’s page numbers in its own LEXIS database service would constitutecopyright infringement).27. See, e.g., West Publ’g. Co. v. Mead Data Cent., Inc., 799 F.2d 1219 (8th Cir.1986) (holding that Mead Data Central’s proposal to introduce “star pagination”showing West’s page numbers in its own LEXIS database service would constitute