Not all databases qualify for copyright protection. This is because a work must be the product of a minimal amount of creativity to be protected by copyright. This requirement applies to databases as well as all other works. The data contained in a database need not be presented in an innovative or surprising way, but the selection or arrangement cannot be so mechanical or routine as to require no creativity whatsoever. If no creativity was employed in selecting or arranging the data, the compilation will not receive copyright protection.
In a landmark decision on fact compilations, the U.S. Supreme Court held that the selection and arrangement of white pages in a typical telephone directory fails to satisfy the creativity requirement and is therefore not protected by copyright (Feist Publications, Inc. v. Rural Telephone Service Co., 111 S.Ct. 1282 (1991)).
Representatives of the Copyright Office have indicated that, in their view, the following types of databases will usually fail to satisfy the minimal creativity requirement. The Copyright Office’s views don’t have the force of law, but the courts likely would follow them.
Works such as these often require no more creativity to compile than the white pages in a phone book. This would be the case where (1) the material is arranged in alphabetical or numerical order, and (2) no judgment is needed to decide which names and addresses should be included.
The following databases lack creativity: an alphabetical list of all Harvard alums, all the members of the ACLU, or all the subscribers to Time Magazine; a mailing list in numerical order according to zip code of all persons who have contributed more than $1,000 to the Republican Party.
An alphabetical or numerical list of all the parts in a given inventory clearly fails the creativity test: If the list is exhaustive, no selectivity is required to compile it; if it is arranged in alphabetical or numerical order, no creativity is required to arrange it.
A genealogy (that is, a table or diagram recording a person’s or family’s ancestry) consisting merely of transcriptions of public records, such as census or courthouse records, or transcriptions made from headstones in a few local cemeteries, is also deemed by the Copyright Office to lack minimal creativity.
On the other hand, the creativity requirement may be satisfied where the creator of a genealogy compilation uses judgment in selecting material from a number of different sources.
De minimis in Latin means trifling or insignificant. A de minimis compilation is one that contains only a few items.
The Copyright Office considers a compilation of only three items to be clearly de minimis and not protected by copyright. Even if a de minimis compilation meets the minimal creativity requirement, the Copyright Office will refuse to register it. This means the compiler can’t file a copyright infringement suit if anyone else uses their list of three or fewer things.