Kregos v. Associated Press

• Citation: 937 F.2d 700
• Decision Date: 11 June 1991
• Docket Number: No. 337,D,337
• Parties: , 1991 Copr.L.Dec. P 26,744, 19 U.S.P.Q.2d 1161 George L. KREGOS, d/b/a American Sports Wire, Plaintiff-Appellant, v. The ASSOCIATED PRESS and Sports Features Syndicate, Inc., Defendants-Appellees. ocket 90-7469.
• Court: U.S. Court of Appeals — Second Circuit

Page 700

937 F.2d 700

60 USLW 2002, 1991 Copr.L.Dec. P 26,744,

19 U.S.P.Q.2d 1161

George L. KREGOS, d/b/a American Sports Wire, Plaintiff-Appellant, v. The ASSOCIATED PRESS and Sports Features Syndicate, Inc.,

Defendants-Appellees.

No. 337, Docket 90-7469.

United States Court of Appeals, Second Circuit.

Argued Oct. 31, 1990.

Decided June 11, 1991.

Mark P. Stone, Stamford, Conn., for plaintiff-appellant.

Nicholas L. Coch, New York City (Anderson Kill Olick & Oshinsky, Walter G. Marple, Jr., and David A. Einhorn, on the brief), for defendant-appellee Associated Press.

Norman E. Lehrer, Cherry Hill, N.J., for defendant-appellee Sports Features Syndicate, Inc.

Before NEWMAN and PRATT, Circuit Judges, and SWEET, District Judge. ^*

JON O. NEWMAN, Circuit Judge:

The primary issue on this appeal is whether the creator of a baseball pitching form is entitled to a copyright. The appeal requires us to consider the extent to which the copyright law protects a compiler of information. George L. Kregos appeals from the April 30, 1990, judgment of the District Court for the Southern District of New York (Gerard L. Goettel, Judge) dismissing on motion for summary judgment his copyright and trademark claims against the Associated Press ("AP") and Sports Features Syndicate, Inc. ("Sports Features"). We affirm dismissal of the trademark claims, but conclude that Kregos is entitled to a trial on his copyright claim, though the available relief may be extremely limited.

Facts

The facts are fully set forth in Judge Goettel's thorough opinion, 731 F.Supp. 113 (S.D.N.Y.1990). The reader's attention is particularly called to the appendices to that opinion, which set forth Kregos' pitching form and the allegedly infringing forms. Id. at 122-24 (Appx. 1-4). Kregos distributes to newspapers a pitching form, discussed in detail below, that displays information concerning the past performances of the opposing pitchers scheduled to start each day's baseball games. The form at issue in this case, first distributed in 1983, is a redesign of an earlier form developed by Kregos in the 1970's. Kregos registered his form with the Copyright Office and obtained a copyright. Though the form, as distributed to subscribing newspapers, includes statistics, the controversy in this case concerns only Kregos' rights to the form without each day's data, in other words, his rights to the particular selection of categories of statistics appearing on his form.

In 1984, AP began publishing a pitching form provided by Sports Features. The AP's 1984 form was virtually identical to Kregos' 1983 form. AP and Sports Features changed their form in 1986 in certain respects, which are discussed in part I(d) below.

Kregos' 1983 form lists four items of information about each day's games--the teams, the starting pitchers, the game time, and the betting odds, and then lists nine items of information about each pitcher's past performance, grouped into three categories. Since there can be no claim of a protectable interest in the categories of information concerning each day's game, we confine our attention to the categories of information concerning the pitchers' past performances. For convenience, we will identify each performance item by a number from 1 to 9 and use that number whenever referring to the same item in someone else's form.

The first category in Kregos' 1983 form, performance during the entire season, comprises two items--won/lost record (1) and earned run average (2). The second category, performance during the entire season ¹ against the opposing team at the site of the game, comprises three items--won/lost record (3), innings pitched (4), and earned run average (5). The third category, performance in the last three starts, comprises four items--won/lost record (6), innings pitched (7), earned run average (8), and men on base average (9). This last item is the average total of hits and walks given up by a pitcher per nine innings of pitching.

It is undisputed that prior to Kregos' 1983 form, no form had listed the same nine items collected in his form. It is also undisputed that some but not all of the nine items of information had previously appeared in other forms. In the earlier forms, however, the few items common to Kregos' form were grouped with items different from those in Kregos' form. Siegel's 1978 form contained won/lost record (1) and earned run average for the season (2), but contained no "at site" information (3, 4, 5) and no information for recent starts (6, 7, 8, 9). It contained only two of Kregos' nine items (1, 2). Fratas' 1980 form contained "at site" information for the previous season (differing from Kregos' "at site" information for the current season (3, 4, 5)) and contained no information for recent starts (6, 7, 8, 9). It contained only two of Kregos' nine items (1, 2). Eckstein's 1981 form, the only prior form to contain information for recent starts (using two of the four items in Kregos' form (6, 7)) lacked the third and fourth "recent starts" items (earned run average and men on base average (8, 9)), contained "at site" information only for won/lost record and did not report that data for the current season against the opposing team, ² and lacked earned run average for the season (2). It contained only three of Kregos' nine items (1, 6, 7).

Kregos' item (9), men on base average in recent starts, had not previously appeared anywhere. However, a supplier for the Associated Press Syndicate, Inc. had distributed on a weekly basis the men on base average for every pitcher for the entire season, rather than for the most recent three starts, as in Kregos' form.

District Court decision. The District Court granted summary judgment for the defendants on both Kregos' copyright and trademark claims. On the copyright side of the case, the Court ruled that Kregos lacked a copyrightable interest in his pitching form on three grounds. First, the Court concluded that Kregos' pitching form was insufficiently original in its selection of statistics to warrant a copyright as a compilation. Second, the Court concluded that, in view of the limited space available for displaying pitching forms in newspapers, the possible variations in selections of pitching statistics were so limited that the idea of a pitching form had merged into its expression. Third, the Court ruled that Kregos' pitching form was not entitled to a copyright because of the so-called "blank form" doctrine. On the trademark side of the case, the Court granted summary judgment for the defendants on the ground that Kregos' trademark claims encountered, as a matter of law, a functionality defense.

Discussion

I. Copyright Claim

A. Copyright for a Compilation of Facts. The basic principles concerning copyright protection for compilations of facts are clear and have recently been authoritatively restated in the Supreme Court's decision rejecting copyright protection for telephone book white pages. Feist Publications, Inc. v. Rural Telephone Service Co., Inc., --- U.S. ----, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) ("Feist "). "A factual compilation is eligible for copyright if it 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 ----, 111 S.Ct. at 1290. "Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity." Id. at ----, 111 S.Ct. at 1287 (citation omitted).

In principle, this "independent creation" sense of the word "original" applies to the originality required to entitle a selection of factual information to a copyright. "A compiler may settle upon a selection or arrangement that others have used; novelty is not required. Originality requires only that the author make the selection or arrangement independently (i.e., without copying that selection or arrangement from another work)...." Id. at ----, 111 S.Ct. at 1294. In practice, however, as the Court in Feist made clear, application of the "originality" standard to compilations of facts is narrowed somewhat by the requirement of "some minimal level of creativity." Id. In Feist, for example, it would have availed the compiler nothing to have persuaded a fact-finder that it came upon the idea of "selecting" all the telephone subscribers in town and "arranging" their names in alphabetical order without copying these features from any preexisting work. The widespread prior existence of white page lists of all telephone subscribers in a community, arranged alphabetically, precluded, as a matter of law, a finding of the requisite creativity. The white pages were deemed "entirely typical" and "garden-variety." Id. at ----, 111 S.Ct. at 1296. The selection of listings "could not be more obvious." Id. And "there is nothing remotely creative about arranging names alphabetically in a white pages directory.... It is not only unoriginal, it is practically inevitable." Id.

Thus, as to compilations of facts, independent creation as to selection and arrangement will not assure copyright protection; the requirement of minimal creativity becomes an important ingredient of the test for copyright entitlement. "[T]he selection and arrangement of facts cannot be so mechanical or routine as to require no creativity whatsoever." Id.

Prior to Feist, we had applied these principles to require some minimal level of creativity in two fairly recent cases that illustrate compilations of facts one of which is and one of which is not entitled to a copyright, Eckes v. Card Prices Update, 736 F.2d 859 (2d Cir.1984), and Financial Information, Inc. v. Moody's Investors Service, 808 F.2d 204 (2d Cir.1986) ("FII "), cert. denied, 484 U.S. 820, 108 S.Ct. 79, 98 L.Ed.2d 42 (1987). In Eckes we upheld a District Court's finding, made after trial,...