Rural Tel. Service Co. v. Feist Publications, Inc.

• Decision Date: 05 January 1987
• Docket Number: No. 83-4086.,83-4086.
• Citation: 663 F. Supp. 214
• Parties: RURAL TELEPHONE SERVICE COMPANY, INC., Plaintiff, v. FEIST PUBLICATIONS, INC., Defendant.
• Court: U.S. District Court — District of Kansas

663 F. Supp. 214

RURAL TELEPHONE SERVICE COMPANY, INC., Plaintiff, v. FEIST PUBLICATIONS, INC., Defendant.

No. 83-4086.

United States District Court, D. Kansas.

January 5, 1987.

COPYRIGHT MATERIAL OMITTED

James M. Caplinger, Jr., Topeka, Kan., for plaintiff.

Kyler Knobbe, Ridenour and Knobbe, Cimarron, Kan., for defendant.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This is a copyright infringement and antitrust action. Plaintiff, Rural Telephone Service Company, Inc. (RTSC), contends that the defendant, Feist Publications, Inc. (Feist), violated the copyright laws by copying the white pages of its 1982-1983 telephone directory. Feist contends that RTSC has violated the antitrust laws by attempting to exclude it as a competitor in the yellow pages advertising market. This matter is presently before the court upon RTSC's motion for summary judgment on its copyright infringement claim, Feist's motion for summary judgment on the copyright infringement claim, and RTSC's motion to dismiss the antitrust claim. Oral argument has been requested but the court deems it unnecessary.

Before we address the pending motions, we find it necessary to consider one point raised by Feist in its response to RTSC's motion for summary judgment and cross-motion for summary judgment. Feist suggests that the court should not consider RTSC's infringement claim and Feist's antitrust claim separately. Feist contends that the two claims are related and must be viewed together. The court recognizes that the evidence in this case applies to both claims. Nevertheless, we do believe that the claims are independent of each other and should be considered separately. See, e.g., National Business Lists, Inc. v. Dun & Bradstreet, Inc., 552 F.Supp. 89 (N.D.Ill.1982) and National Business Lists, Inc. v. Dun & Bradstreet, Inc., 552 F.Supp. 99 (N.D.Ill.1982). Accordingly, the court shall examine each claim separately in this order.

The court shall proceed to the copyright infringement claim. Both sides have moved for summary judgment. Summary judgment is, of course, only appropriate if no triable issue of material facts exists. Buell Cabinet Co., Inc. v. Sudduth, 608 F.2d 431, 433 (10th Cir.1979). The material facts on the copyright infringement claim are not in dispute and, thus, summary judgment may properly be entered.

RTSC is a Kansas corporation, duly organized and existing under the laws of the State of Kansas to transact the business of a public utility. In the normal course of business, RTSC compiles, prepares, publishes and distributes telephone directories covering the geographical areas in which it provides telephone service. The telephone directories have been copyrighted and the copyrights have been registered each year as published. The 1982-1983 telephone directory, which is the subject of this lawsuit, is marked with an appropriate copyright notice identifying RTSC as the copyright proprietor and indicating the year of publication. RTSC's telephone directories are printed partly on white pages and partly on yellow pages. The portion printed on white pages lists in alphabetical order the names, addresses and telephone numbers of RTSC's telephone subscribers. The portion printed on yellow pages lists RTSC's business subscribers alphabetically under the appropriate business classifications and contains classified advertisements of various sizes purchased by RTSC's business subscribers.

Feist is also a Kansas corporation. Feist publishes and distributes telephone directories. Since 1978, Feist has published and distributed a Northwest AREA-WIDE Telephone Directory. This directory covers some of the same geographical areas as the directory produced by RTSC but also covers some additional areas. The directory contains white pages and yellow pages similar to the RTSC directory. The directory also contains a red page community interest section and a blue page government and school information section.

Feist began its publication of the Northwest AREA-WIDE Telephone Directory by attempting to enter into license agreements with the various telephone companies serving the area covered by the directory. Through these license agreements, the telephone companies agreed to annually sell Feist a list of their white page listings to be used by Feist in its directory. RTSC was the only telephone company in the area covered by the Northwest AREA-WIDE Telephone Directory that did not enter into a license agreement with Feist. Thus, Feist in 1978, unable to purchase the RTSC white page listings, took the RTSC telephone directory and edited it by taking out all of the listings they could not use and using the remainder of the RTSC directory. Once this was accomplished, Feist sorted these listings out by town and alphabetized them. Feist then sent the various lists, broken down by towns, to verifiers it had hired in each of the towns that the directory would cover, with instructions to telephone each of the listings taken from the RTSC directory, and to attempt to verify each name, address and telephone number. After the verifiers had carried out their instructions, they sent the lists back to Feist with penciled in notes reflecting deletions, additions and any other changes. Concurrently with the work of the verifiers, salesmen working for Feist solicited ads for the yellow pages section of the Feist directory. The ads which were purchased then appeared in printed form in the yellow pages section of Feist's 1978 Northwest Kansas AREA-WIDE Telephone Directory which was delivered to people in various northwest Kansas counties.

In the following years, 1979 through 1982, Feist published an annual Northwest AREA-WIDE Telephone Directory. Feist used RTSC's telephone directory to a limited extent during those years. Feist generally relied upon its own previous directory and made additions and deletions through the use of verifiers. In 1983, Feist decided to change the date of publication of its directory. Based upon this change, Feist decided it was advantageous to again make full use of the RTSC directory. Feist used RTSC's directory in the same manner as in 1978.

RTSC, suspicious of Feist infringing its copyright, inserted in its 1982-1983 telephone directory a number of fictitious listings. When Feist's 1983 Northwest Kansas AREA-WIDE Telephone Directory was published and disseminated, four fictitious listings that were inserted in RTSC's 1982-1983 telephone directory appeared in the Feist directory.

RTSC contends that the aforementioned facts show that Feist infringed its copyright by copying its 1982-1983 copyrighted telephone directory without permission. Feist asserts a number of defenses to RTSC's contention. The court shall examine the various contentions made by both sides.

To prevail on a claim of copyright infringement, a plaintiff must show ownership of a valid copyright and that there was copying by the defendant. Wickham v. Knoxville International Energy Exposition, Inc., 739 F.2d 1094, 1097 (6th Cir. 1984). Feist has raised several matters which dispute RTSC's contention that these requirements have been satisfied in this case.

Plaintiff has attached to its complaint a copy of the Certificate of Registration of its copyright for its telephone directory published for the period 1982-1983. Such evidence entitles the plaintiff to a prima facie presumption of copyright validity and ownership. 17 U.S.C. § 410(c). The defendant has the burden of overcoming the presumption of validity. Williams Electronics, Inc. v. Artic International, Inc., 685 F.2d 870, 873 (3d Cir.1982).

Feist challenges RTSC's copyright by contending that telephone directories are not copyrightable subject matter. The issue of whether telephone directories are copyrightable is well-settled. Courts have consistently held that telephone directories are copyrightable. Hutchinson Telephone Co. v. Fronteer Directory Co., 770 F.2d 128 (8th Cir.1985); Southern Bell Telephone & Telegraph Co. v. Associated Telephone Directory Publishers, 756 F.2d 801 (11th Cir.1985); Leon v. Pacific Telephone & Telegraph Co., 91 F.2d 484 (9th Cir. 1937); Central Telephone Co. of Virginia v. Johnson Publishing Co., 526 F.Supp. 838 (D.Colo.1981); Southwestern Bell Telephone Co. v. Nationwide Independent Directory Service, Inc., 371 F.Supp. 900 (W.D.Ark.1974); Southern Bell Telephone & Telegraph Co. v. Donnelly, 35 F.Supp. 425 (S.D.Fla.1940); Cincinnati and Suburban Bell Telephone Co. v. Brown, 44 F.2d 631 (S.D.Ohio 1930); Hartford Printing Co. v. Hartford Directory & Publishing Co., 146 F. 332 (D.Conn.1906). The court does not find the defendant's arguments to the contrary, which are based on Professor Nimmer's comments in Nimmer on Copyright (1986), persuasive. See Demicola, Copyright in Collections of Facts: A Theory for the Protection of Nonfiction Literary Works, 81 Colum.L.Rev. 516, 527-535 (1981). The court holds that the white pages of a telephone directory constitute original work of authorship and are, therefore, copyrightable under either the provisions of 17 U.S.C. § 102 or § 103. Hutchinson Telephone Co. v. Fronteer Directory Co., supra, at 131-32. Accordingly, we find that the plaintiff has demonstrated a valid copyright for its 1982-1983 telephone directory.

The court shall next move to the requirement of copying. This element may be shown by either an admission of copying by the defendant, or by the indirect route of proving access to the directory and substantial similarity between the plaintiff's and defendant's works. Central Telephone Co. of Virginia v. Johnson Publishing Co., supra, at 843. Of course, one of the most significant evidences of copying is the copying of errors. Financial Information, Inc. v. Moody's Investors Service, Inc., 599 F.Supp. 994, 996 n. 3 (S.D.N.Y. 1983); Central Telephone Co. of Virginia v. Johnson Publishing Co., supra, at 844.

RTSC submits that the evidence is uncontroverted that Feist copied its 1982-1983 telephone directory. RTSC points...