For a work to be eligible for protection under U.S. copyright law, it must be the product of a minimal amount of creativity. What does that mean for straight collections of facts, such as might be found in lists, personal directories, and other sorts of databases?
If no creativity was employed in selecting or arranging the data, the compilation will not receive copyright protection. The data contained in a database need not be presented in an innovative or surprising way to receive protection, but the selection or arrangement cannot be so mechanical or routine as to require no creativity whatsoever.
In a landmark decision on fact compilations, the U.S. Supreme Court held that the selection and arrangement of the pages in a typical telephone directory fails to satisfy the creativity requirement and is therefore not protected by copyright See Feist Publications, Inc. v. Rural Telephone Service Co., 111 S.Ct. 1282 (1991)).
The U.S. Copyright Office has indicated that, in its view, the types of databases discussed below will usually fail to satisfy the minimal creativity requirement. The Copyright Office’s views do not have the force of law, but the courts likely would follow them as highly persuasive.
Lists or databases such as street addresses, alumni directories, membership lists, mailing lists, and subscriber lists often require no more creativity to compile than a phone book. This would be the case when:
For example, databases that would lack the requisite creativity would include an alphabetical list of all Vassar College alumni, all the members of the San Francisco Museum of Modern Art, or all the subscribers to The New York Times. Similarly, a mailing list in numerical order of zip codes of all persons who have contributed more than $1,000 to the Republican Party would be unprotectable under copyright law.
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.
Thus, for example, a list of every item contained in a factory would not be protectable under copyright law (though it may be protectable as a trade secret).
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 might be satisfied where the creator of a genealogy compilation uses judgment in selecting material from a number of different sources. The same would be true if the genealogy were arranged in a clever way, through the use of charts or diagrams, or included extensive narrative description of the lineage.
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 cannot file a copyright infringement suit if anyone else uses their list of three or fewer things.