Financial Information, Inc. v. Moody's Investors Service, Inc.

too, hav- event, objections these court, trial cannot be ing made v. United appeal. See States

raised on (2d Cir.), Gigante, 729 — -, 104 S.Ct. U.S. (1984).

L.Ed.2d 348 af- of conviction are judgments

firmed. INFORMATION,

FINANCIAL

INC., Appellant, SERVICE, INVESTORS

MOODY’S

INC., Appellee. 1321, Docket 84-7110.

No. Appeals, States Court

United

Second Circuit.

Argued 1984. June

Decided Dec. (Arthur Kalow, City A. New York

David Lieberman, Lieberman, Rudolph & No- 'M. Newman, Judge, Circuit filed a Jon O. counsel), wak, appel- City, New York concurring opinion. lant. (Bar- City M. York Callagy, Robert New Gurfein, Wartelle, Satter- L. Daniel G. bara City, of coun- Stephens, New York lee & sel), appellee. NEWMAN, Circuit Daily Service,” and “Financial Bond

Before Called OAKES MISHLER, Judge.* Judges, alleges Moody’s District from which it and stole copy- righted material. OAKES, Judge: Circuit Daily FII’s Financial Called Bond Service judgment from a appeal This is an Cards”) (“Daily Bond literally consists South- District Court United States packets 4" 6" cards on index which x York, L. Car- ern New Robert District of printed are regarding information munici- ter, trial dismissing after a bench Judge, pal which the has bonds issuer elected to Financial Information plaintiff-appellant redeem, or typical- “call.” The information charging defendant-appel- complaint Inc.’s ly (and, identity issuing includes the Service, Moody’s lee Inc. with Investors course, calling) municipal authority, the competi- copyright infringement and unfair called, being series of bonds the date and tion. first found that the infor- The court price of the redemption, and the name of gathered copyrightable was under mation agent paying trustee or to whom the provision “compilation” presented payment. bond should be § Then, law, (1982). U.S.C. FII principally by obtains this information action, the dismissing the district court having employees its read newspapers doctrine, found that use the fair codified country, looking from all over the for and (1982), Moody’s 17 U.S.C. shielded clipping paid notices of calls that is- liability in- on the federal place press. suers the local Occasional- allegations, fringement and that ly, employees telephone FII issuers for in- competition could be no unfair state under formation, and other sometimes commer- parties competitors law since the were not redemption cial bond services—such as plaintiff injury. and because could show appar- consulted. There is —are judgment One week was after below little, if ently any, skill or editorial creative entered, Supreme Sony Court decided involved; discretion cards are essential- Corp. City America Universal Studi- compilation ly a of financial facts collected — os, Inc., -, U.S. 104 S.Ct. sources, key being from various (1984), represents L.Ed.2d 574 which now publication. those selected for leading exposition use the fair doc- Daily The seek report Bond Cards all light Sony, trine. and in view of municipal redemptions. United States below, other considerations discussed packets day roughly mailed copying reverse and hold subscribers, large generally who are finan- protected by the fair doctrine. cial institutions who own numerous munici- holding This federal on the action cause pal and who find it bonds would difficult to necessarily holding entails a correlative redemptions. all monitor relevant The cost that the state preempted cause action is per year, of the service is which in- $279 (1982). under 17 But it also an annual cludes cumulative volume and copyrightabil- entails an examination of the filing cabinet. issue, ity we wish as which further elab- Defendant-appellee Moody’s Investors oration on facts and reconsideration. Service, Inc. (“Moody’s”) also the busi- We remand district court for such selling ness financial information. elaboration and reconsideration a de- Among products Municipal its damages, termination issue is (“News Reports Government News Re- reached. ports”), bi-weekly yearly supplement to a Municipal called the Facts Government Manual. (“FII”) Financial Information Inc. publisher pro- Cards, of financial information. Like FII’s Bond works, including Reports provide duces five separate its News institutional sub- * York, sitting by designation. Of the of New Eastern District §§ (1982), and for unfair competi- essential connected scribers with tion under York law. New redemptions, including the date with bond and the name of the price the call trial, witness, expert At Professor Despite apparent agent. trustee or Robbins, Herbert Professor of Mathemati- differ in at least overlap, publications University, cal Statistics at Columbia testi- First, ways. while endeavors two fied that based on the incidence of FII redemptions, Moody’s municipal report all Moody’s appeared errors which in News those securities it coverage restricted to Reports more than certain was 95% that told, which, roughly rates, are also Moody’s copied had least at FII’s 40-50% municipal class of bonds. the total 90% years information in 1980 and 1981. Reports provide a Secondly, Moody’sNews Professor further testified that in Robbins of information not of- significant amount eight eight ap- where FII errors cards, as Moody’s own fered FII’s Reports, probabili- in peared the News and ratings securities notices of of the debt Moody’s copied ties were that 51% 91% of Moody’s total recently offered. securities Daily At a Bond Cards. “confidence includes, per year and package level,” i.e., 95%, $840 probability, costs Professor bi-weekly Reports, News in addition to put percentage Moody’s Robbins Manual, and Government a Municipal copying in 1981 at 68%. comprehensive work which contains a sub- Moody’s presented at evidence trial of financial information stantial amount “independent what it calls its creation” of entities, and which governmental about According Reports. its News testi- reference source for libraries serves as a mony of Moody’s employees, research agencies, as as for government and well Reports effort that into the News went financial institutions. the reading included of over two dozen newspapers monitoring of and the four FII, in 1980 it

According to noticed Moody’s maintained that wire services. errata Moody’s publishing “coincidence of though employees directly, nine were not FII,” began suspect that after and necessarily exclusively, pro- in the involved Moody’s simply copying information was Reports, duction of the News and that the year, In December from its cards. costs allocable” “total accrued annual suspicions, its FII attempt in an to confirm including News research ef- Reports, planted an error “redeem fabricated and $700,000 costs, from had, fact, fort varied between ing” some bonds addition, sought $1,000,000. Moody’s redemption The fake year called earlier. testimony of expert counter the Professor picked up published Moody’s. and by showing through Robbins reference any more plant FII not errors—it While did and schedules that deadlines was, all, jeopardy sacrificing its after redemption than of its no- more half bond credibility reputation its customers for simply copied have been tices could not compare Moody’s reliability did —FII from FII’s cards. reports own in cases where FII had with its errors. It was ulti made unintentional Moody’s The Decision Below

mately does not determined—and dismissing post-trial opinion In the in 1980 seven of FII er contest—that ten found, complaint, by Moody’s, the district reproduced rors while were matter, Daily by preliminary that FII’s Bond copied FII errors were eight all confirming thus copyrightable, were Moody’s.1 FII then instituted this action Cards appellee’s the decision on and unfair com the substance of infringement for Act, judgment.2 summary Copyright prior motion for petition under the trial, appeal. footnote its preserved In a By proof limited on this stipulation at FII appeal Moody’s copying years and 1981. does note it "ar- brief "maintains,” below,” gued states that question whether the issue of the 2. There is a copyrightable. Daily Cards are Bond copyrightability Bond Cards was Moody’s newspapers received more F.Supp. 994. ex- The district court then than FII, and monitored four wire services. The pressly Moody’s “copied found that had then that he judge stated could “make plaintiff’s from cards time-to-time.” leap proven that 8 of instances shows noted, however, such copying did not time,” by defendant copying 91% matter,” “end the since had “as- copied had instead that found fair serted the use doctrine as a defense to throughout “in some instances cards materials.” plaintiff’s its use Conceptu- [of] which, year,” finding according alizing the test applicability for the FII, copying just into a rate of translates fair use doctrine four hurdles for to 2%. “overcome,” Moody’s to the district court Turning to the “final most important key findings made four in Moody’s “be- factor,” the district court found no evi- half.” dence that use of FII’s stating that fact materials After of a commer- prejudice tended to diminish or poten- copyrighted cial use of material does not in defense, plaintiff’s tial sale of judge work. The and of itself defeat fair use a finding based this on instances, his view that district court noted that some parties separate, “serviced Moody’s discrete mar- legal served as notice kets,” lack of redemption many of a and that evidence bond’s insti- showing a in the “eager” decline number of FII tutions were to have this informa- subscribers or in the court an increase number of Moody’s tion. The then found that Moody’s resulting subscribers performing was from the “public by a function” copying. “making available this needed financial in- Thus, formation.” fulfillment this Having Moody’s found cleared all public brought Moody’s “clearly function hurdles, the court held that the fair four require- ... within the of the ambit first operated complete use doctrine de- protection.” ment fair Copyright to FII’s claims under the fense The district court what The then that the then focused on it Act. court stated simplest Moody’s called “the competition hurdle for York state unfair action New overcome,” namely misappropri- nature on the was that of viable ation, righted The work. court stated that since but held that the absence of a represented showing competition injury, a compliation FII’s cards mere material, scope permissi- necessarily factual failed. claim greater ble fair use was than it would be Discussion work,” respect “truly to a creative Copyrightability that Moody’s and held thus met “the sec- Moody’s below, made here, as makes yardstick.” ond two arguments basic why the called bond The third analyzed factor was the data that FII publishes day cannot “amount and substantiality of portions receive copyright protection: first, that the copied.” Despite Professor Robbin’s testi- daily data are facts and therefore not copy- mony, the court held that FII “failed to rightable and, second, that the daily data establish substantial use of by its work” compilations are not and are therefore not Moody’s. Apparently, the basis for the copyrightable as such. rejection of expert statistical evidence was crediting evidence of As the held, district court significant course, prior pub- simultaneous even Moody’s quite accurate that facts lication of the call data. The district are not copyrightable. See, e.g., Miller impressed was by also Studios, Inc., fact that Universal City 650 F.2d question The by was really not briefed FII or will assume preserved. that the issue has not in fact even mentioned in the Since the issue —was most difficult in the case main text of ap- brief—and does not we asked supplementally, that it be briefed pear in its “Issues Presented for Review.” We it was.

505 Fed. at 87. See also 1981); Hoehling v. 281 Schroeder v. (5th Uni 1365, Cir. 1368 Co., 972, supra, Morrow & 566 F.2d Inc., at Studios, 618 F.2d William City versal (“An original compilation of denied, 5 names and Cir.), 449 U.S. 974, (2d cert. copyrightable though addresses is even (1980); 121, L.Ed.2d 49 101 S.Ct. names and addresses are in the individual Inc. v. Random Enterprises, Rosemont public copyrightable”). domain and not Cir.1966), Inc., F.2d House, incorporates Act of Copyright The 714,17 87 S.Ct. 385 U.S. by expressly providing law for the common Nimmer, Law (1967); 1 M. L.Ed.2d compilations, 17 protection of U.S.C. (1984) 2.11[A], at Copyright of (hereinafter § 103(a), defining “compilation” as fol- “Nimmer”). Hoehling, lows: au appeal example, rejected as- formed the collection and Hindenberg work history about

thor of sembling preexisting materials his dirigible who asserted selected, coordinated, that are television studio infringed by a arranged way in such a that the result- of its historical as one his book used origi- as a whole constitutes an ing work making screenplay about sources authorship. nal work “factual in The court said that dirigible. domain[,]” public is in the formation af that “the at copyrights defies the Thus the law of has never ex copyright holder forded the or, logic, puts as one commentator laws of fact or history, it documented tended' it, algebra,” “the dictates of since “af- at 974. hypothesis.” Id. explanatory hundred or fords to the summation one original “the protected is author’s isWhat facts and their una- one million [individual facts.” Id. particular expression of expression] significant measure of dorned affording none to the copy protection” while facts have While Denicola, Copyright point facts themselves. See the district court protection, as Theory A in Facts: out, of such facts tradition Collection compilations ed Works, See, Literary v. Protection e.g., Schroeder ally have been. of Nonfiction (hereafter 516, (1981) (7th 527 Co., 566 F.2d 3 81 Colum.L.Rev. Morrow & William Denicola). compilation nurseries); The whole of a Cir.1977) Leon v. (directory of Co., parts. of its greater thus than the sum 91 Telephone Telegraph & Pacific therefore, Cir.1937) surprising, (9th (telephone directo is not F.2d 484 (2d competing theo- Peterson, opposing lines of cases and 91 F.2d 998 v. ry); Hartfield commentators, or that by the code); ries advanced Cir.1937)(cable telegraphic Jew the district court and this case has caused Publishing Keystone v.Co. eler’s Circular Cir.), difficulty. (2d much Co., ourselves 281 Fed. 83 Publishing 464, L.Ed. S.Ct. 259 U.S. respectable lines of au- competing directory); Pub (1922)(jeweler’s List exemplified by those that seem- thority are (C.C.S.D. Keller, 30 Fed. lishing Co. v. the la- copyrightability turn on ingly make N.Y.1887) (social 1 Nim register); see also assembling the expended in or effort bor § 2.04[B],at 2-40. Jeweler’s Circular mer data, Telephone v. & e.g., Leon Pacific stated the rule: Publishing Co. (9th Co., 484, 486 Cir. 91 F.2d Telegraph name, occupation, his his “A man’s Publishing 1937)(citing Circular Jeweler’s business, residence are and his place of Co., directory copyright- (telephone supra) subjects copyright.” of them none evidently exclu- able), look those that data as the arrangement of the sively to But, contain- compiles if a man book e.g., Triangle Pub- keystone protection, residents about the ing such information Inc., 415 lications, Eye, Sports v. copy- Inc. place, he ... particular aof (E.D.Pa.1976); Stan- F.Supp. Simms whole, notwithstanding the right it as a (C.C.N.D.Cal.1896). ton, it is 75 Fed. separate parts of which fact that the agree that there While commentators copyrightable. composed are not ” protection adding ‘peculiar judgment,’ of individual skill can facts, argument one condemn “sweat the court nevertheless held the would unavailing n. on publish- Nimmer 16 at analysis, brow” basis 2.04[B] “[i]n Judge (criticizing language ing 2-42 Carter ten or twelve index cards day, each week, ease), suggest fifty sixty 2,500 in this while another would and some [or] year’s volume, “authorship aggregating in the act of in each cumulative FII is key, unquestionably ‘assembling, of information” is the pieces connecting isolated Denicola, thereby categorizing disparate Colum.L.Rev. at which in ” isolation,’ particular concluding “the collection of nature occurred in and “[t]he compilation may employees put together in a be FII daily data contained who copyrightable element of the called bond considered a service assemble into one court,, focusing compilation handy disparate overall Our work.” information “selected, coordinated, language, statutory thousands of about calls hundreds of following arranged,” posi- has taken the municipalities governmental and other enti- Update, tion in v. Card Prices 736 ties in dozens of Eckes states.” Cir.1984) (upholding Thus, data, amassing its bond “[i]n copyrightability guide re- baseball card just assembling a handful of statistics 18,000 or ferring to so different baseball single, occurrence, solitary about a but is “selection, cards because authors exercised weaving together handy, instead into a co- 5,000 judgment” choosing creativity and entity thousands of facts that herent ‘oc- ” cards”): “premium of them as curred isolation.’ particularly we have been restrictive And district court on to went con- protection indi- non-fiction works clude: cating, example, the fruits of copyright protection To accord independent another’s labor lieu of compilation deny annual but to each through research the sweat of a obtained component daily negate would the value brow, researcher’s does not merit yearly accorded the absent, right protection perhaps, whole- If compilation. competitor a were to be appropriation____ sale copy day’s quantum able each of FII’s Nevertheless, our cases do hold bond impunity, called cards with subjective arrange- selection and protection copyright given to the annual pro- ment of information merit does not meaningless volume would be rendered tection. copying competitor____ as Id. at 862. aggregation as an Just annual principles, The statement of abstract bond data called should be considered a however, in, usually assist but does so, too, compilation, should each serial compel, concrete the determination of ingredient quarterly, monthly, it the —be Soper, cases. See On the Relevance weekly, daily or component con- —be Philosophy to Law: Acker- species compilation. If sidered Reflection Property man’s Private and the Constitu- copyright cumulative volume warrants tion, (1979); 79 Colum.L.Rev. R. protection compilation, then so do Dworkin, Taking Rights Seriously, ch. 4 components that ultimately the serial (“Hard Cases”), (1977). at 81-130 long comprise cumulative tone—so as adequate is copyright there notice on Thus, “pivotal question” the dis- as component. put daily trict court it is “whether FII’s Judge analysis called can compi- bond data be considered a has con- While Carter’s Recognizing Moody’s argument appeal why lation.” the serial siderable should — as, essence, FII, publishing developed “that being thief of for a cards, go only public compilation bond data index records scot-free while fellow single public for the compilation information about occurrenc- who waits be com- es, calls, i.e., plete sup- without he steals it not—and bond does so before does commentator, Denicola, other, explored by be areas will district port by at least one 530-35, us, there neverthe- if give at court so as to case returns to Colum.L.Rev. prece- Circuit now-updated court, Second less this a further clue or clues to resolv- account, Eckes, su- taken into dent to be ing in the copyright a conundrum law: Thus, which we order pra. on the remand copyrightable “compi- “facts” are not but stated, questions to be below for reasons is, lation” them does utilization of the whether the data will include addressed they collected con- another FII involved modicum cards used on infringement “compila- stitute an of the coordination, selection, arrangement tion,” and Denicola as the district court meet the rather part, sufficient to on FII's suggest, only or does the law of of original- standard copyrightability broad compilation when operative become “indepen- phrased in terms ity which question complete? is this a which can- —or narrower, rather than creation” dent in the not even asked framework “uniqueness” or standards of inapplicable fact/compilation dichotomy? Put another “ingenuity,” Nimmer “novelty” or illogic way, is in the the surface inherent § 2-6, 3-19; L. at 3.04 at Batlin 2.01[A] proposition that facts alone are not F.2d Snyder, 536 & Son is, pen- rightable while a collection of them Cir.1976) (en banc); Eckes v. Card Prices etrable in this case resort to the “selec- They 862-63. will also Update, 736 at tion”-“coordination”-“arrangement” route question, not answered on include the publishes compiler where the his “facts” satisfaction, an- our whether the record he collects them? volume, compila- ultimate nual bound Fair Use tion, merely purpose a real trivial serves Copyright protection “subsists ... user; immediacy if the of the infor- original authorship fixed in works basically to bond calls is mation as expression____” tangible medium buyer thing valuable But, 102(a). Supreme as the service, arguably is little reason reiterated, recently compilation at all Court has looking at the ultimate daily copy on the cards “has never accorded focus even while readability, simplicity, complete possi their over all their owner control makes arrangement of Corporation the selection and Sony and hence uses of his work.” ble greater Studios, the cards of moment. facts on City v. Universal America of S.Ct. should determine regard, (footnote omitted). this at One of the the called other facts bonds what about exceptions copy significant most might conceivably that could included concept right monopoly is the common law purchaser of potential use to have some a use,” in by Congress “fair codified 1976. of omitted, to have determine service the 17 107.3 U.S.C. ‘selectivity’ involved. And degree of the stated, doc have the fair use As we any se- whether court should consider the balancing of the ex trine “offers a means lection, coordination, arrangement is or the a holder with clusive of called bond issues in terms of the involved these, in of infor- Perhaps public’s interest dissemination reported or on. which are use, (1) purpose and of the in- provides: character 107 3. Section cluding commercial 106, such use is of a whether Notwithstanding provisions of section work, purposes; nonprofit including nature or is for educational copyrighted of a use the fair work; phonore- (2) copies copyrighted by reproduction of the the nature use specified by (3) substantiality por- by any that means other the amount cords section, criticism, purposes such as com- copyrighted for work as to the tion used in relation ment, teaching (including reporting, mul- whole; news a use), scholarship, or tiple copies for classroom (4) potential upon use of the the effect research, infringement copyright. not is an copyrighted work. of the market for or value determining use made a work whether the In any particular a fair use factors case is shall include— be considered 508 affecting areas of universal concern of interests.” Id. at 795 n. 40. On this

mation ____” alone, Nizer, 1061, inappropriate basis it would not be F.2d Meeropol purposes (2d Cir.1977), were we to remand for of con- 434 U.S. cert. ducting required (1978), balancing. 54 L.Ed.2d 756 98 S.Ct. Securities, citing Wainwright Inc. v. Wall Supreme But Court’s decision Transcript Corp., 558 F.2d Street Sony makes a remand on the fair use issue Cir.1977), “permits the limited the doctrine unnecessary. Sony repeatedly stresses copyrighted material without use that “first factor” —whether the use is purposes for ‘such criti author’s consent nonprofit only commercial or must —not cism, news, comment, teaching reporting, part' a necessarily analysis, of a court’s research____’” ..., scholarship, or Har also, proves must if the but use commer Publishers, En per & Row Inc. v. Nation cial, give presumption to a rise of unfair (2d Cir.1983) terprises, 723 hardly use. Court could have been — (citing 107), granted, point, stating lucid on this more that “ev -, S.Ct. U.S. L.Ed.2d ery copyrighted commercial use of material (1984). time, At the same fair use not a “is presumptively exploitation an unfair theft, corporate empowering for a license monopoly privilege belongs ignore a court whenever copyright____” owner Id. at 793.4 underlying work determines contains argument There is no and of can course possible public importance.” material com- doubt but use is University Iowa State Research Founda mercial, presumptively and thus unfair. tion, Broadcasting Inc. v. American Com court, course, having The district Inc., (2d Cir.1980). 57, 61 panies, 621 F.2d Supreme benefit Court’s decision Sony, Stevens, writing Sony, respect Justice noted for- with majority, emphasized profit copyrighted for use of the material employ “equitable dispositive must an rule of reason” that that fact was not on analysis op question liability. degree to determine whether fair use To against in a case “public erates shield the district court's discussion of the infringement. claims S.Ct. at 792. function” of intended factor, The four factors which the fair use statute address the first must state our disagreement identifies as relevant to a determination its characterization. applies purpose large whether the doctrine The fact that financial institutions —the use; willing pay character of the the nature of the are considerable sums of material; money copyrighted quali- the amount of the hardly receive information portion copyrighted selling (again, used in relation to fies the of that information whole; work as a and the effect of the use substantial money) amount potential public market value function. This information on bond not, all, redemptions copyrighted equitable work—are considera after information disseminated, weighed by the is widely tions to be assessed and the de- court;' circulated, they simply gree hurdles over that it more reach may leap through infringer newspapers, which an accused individuals their safety liability. appear, Rather than se where the call announcements first tests, any quence rigid through Moody’s the fair use than that four analysis balancing produces. classify Moody’s of a of its consists “sensitive To sales repeated emphasized gain point was If the use 4. This intended is for commercial that the own- throughout opinion: [of likelihood harm to the may presumed. er] be copies were make for a If the Betamax used to at Id. profit-making purpose, such commercial gain Copying for has a much commercial presumptively unfair. use would copying weaker to claim fair use than S.Ct. at 792. personal enrichment. at Id. 795 n. 40. would, it From public quately function credit. the district as a court’s Reports News us, that that opinion, appears state a rule whenever it understood the seems to information, paid testimony the expert is market Professor Robbins to market rises to a delivery goods Moody’s to that that must be an assertion have perhaps time,” While sound public copied leap function. from FII “91% theory, a construc- matter of economic from the refused make estab- statutory fac- “first would distort the eight eight tion lished fact that errors were context. use But, tor” fair copied year. one as we indi- have note, addition, presumably FII that above, We did cated Professor Robbins not tes- Bond willing Daily sell its is able and tify copied, that was he merely 91% that one with anyone, and thus Cards to presented Moody’s a continuum of what per need do without. year FII, expressed $279 might copied have along probability with the or “confidence recognize pre- Sony requires that we possible with level” associated arising sumption by Moody’s unfair use was, figure referred ing level. 91% copyrighted from its commercial use of concedes, appellant readily at the “sta- required engage As we material. point fringe.” tistical More to the was by analysis mandated “rule of reason” testimony that Professor Robbins’s it was can- persuaded Moody’s that Sony, we are statistically (i.e., probable) certain 95-99% if presumption, and that not rebut that Moody’s copied that had at the 40-50% equitable fac- anything, specified the other level. undermine, the support, rather than tors pro- Moody’s that use was not conclusion connection, important In this it is to note fair doctrine.

tected use Moody’s seriously that never attacked challenged expert testimony; statistical respect With to the second factor—the own, expert of its it offered no witness copyrighted material —it nature of the prove true, Daily sought instead at trial that it could appellee argues, that FII’s 50%, have copied edito- not more than due to require do a minimum of Bond Cards like. publication schedules and the But as judgment, consequently rial skill or notes, correctly Moody’s than FII insistence that susceptible to fair use more published one half of what it could not truly Harper work. & would be a creative entirely from FII is con- Enterprises, have been taken Row Publishers Nation proof sistent with FII’s that did 208. We are disinclined 723 F.2d at 50%, factor, steal the other and FII is also correct great importance on this how- place ever, figure note attacked seeks that use 91% argu- Moody’s is man.” At oral similarly “non- a “straw to make of the material ment, Moody’s could neither nor purely In other defend ereative” and commercial. misunderstanding words, explain apparent songwriter playwright were a part re- the statistical evidence on compilation of information copy from a court, nor offer rebuttal as to redemptions in or- district municipal garding bond to, why copying figure was not say, enhance the verisimilitude 40-50% der Accordingly, simply art, easily accurate. we cannot might persuaded his be more we agree with district court’s conclusion copyrighted FII’s nature of factual Moody’s copying “limited.” significantly against cut material should equita- balancing. Given the in a fair use Finally, respect to the fourth fair analysis, we are the fair use nature of ble factor, of the effect use pot calling by the here unmoved somewhat for or upon potential market value black. the kettle Cards, again must Bond analysis of the court below that present reject case significant to Far more substantial, competitors.” parties “are not whole- is the evidence Reports FII, Moody’s News evidence true that by Moody’sfrom copying sale scope in Bond differ somewhat Daily court failed ade- Cards the district which we fear 510 Moody’s product copyright protection coverage, and that all collections of FII’s; appel- facts, expensive but as Congress than has a “compila-

more defined notes, the not re- correctly law does lant as by tion” “a work formed the collection “identity in nose-to-nose quire products of assembling preexisting of materials or if It is clear selected, rival sales.” coordinated, data that are merely copy Daily from unable the were arranged in way the resulting Cards, position in a might be Bond original as a whole an work constitutes State, See Iowa fee. that use for a license authorship.” Id. (emphasis work 101 v. Reel 62; Comics Inc. D.C. 621 F.2d at added). Thus, primary task for the Inc., 696 F.2d (2d Cir.1982). Fantasy, District Court is determine whether the addition, Supreme in In as the Court stated appearing on the Daily Called Bond Sony, commer- an intended use is for when “selected, coordinated, have Cards been gain, copyright harm to the owner cial arranged” original so as constitute an 793. “may presumed.” S.Ct. at authorship. work of sum, before the record us do Congress, I not share the view that in does not make “fair use” the material it establishing criteria, Court, these or this in copied FII. insisting they satisfied, has defined Claim Preemption State logic algebra. the laws of or of copyrightable “compilation” “whole” of a above, agree As noted we do not greater “parts.” not than sum of its If parties with the district court that do “parts” only its discrete items of compete, finding not which served collected, data that have resulting of the basis for the dismissal state claim. Nonetheless, Act, express may Copyright by copyrightable. work receive terms, respect preempts copyright something state actions with a valid if has “equivalent rights the exclu “authorship” been added to the data: general scope rights within sive in compiler making requisite § 301(a). copyright.” selection, FII has coordination, arrangement alleged Moody’s unlawfully in essence that data. language The fact that some misappropriated copyrighted material. cases, see Jeweler’s Circular Pub early claim, prevail If FII does on its federal lishing Keystone Co., Publishing Co. v. preempted; state New York claim will be Cir.), F. prevail, state does claim will have (1922), U.S. S.Ct. 66 L.Ed. 1074 to be considered. and, perhaps, some even results reached in cases, e.g., Telephone Leon v. those damages. Remand for a calculation of Pacific Co., Telegraph (9th & F.2d 484 Cir. NEWMAN, Judge, 1937), JON Circuit con- supported copyright have view curring: solely should be extended be cause of reason laborious effort is no Agreeing Judge with all of what Oakes disregard statutory us criteria that aspect has written on the fair this Congress articulated 1976 when enact appeal and with most of his observations ed current statute. The “sweat of the copyrightability, on the issue I concur in brow” rationale is substitute for meet findings. the decision to remand for further statutory one ing of those criteria. The usefulness of the remand be en- hanced some further brief elaboration aspect copyright A second issue of the issues. litigation arises this because the fact are ini- question Daily Called Bond Cards The basic on the issue tially daily issued cards and Cards, is whether Called individual Bond Information, subsequently annually published issued bound Financial Inc. (“FII”), “compilation” poses proce- are a fact issues within the volume. This Act, registra- meaning Copyright compliance 17 U.S.C. dural § 103(a) (1982). Preferring not entitle- requirements to extend tion substantive copyright protection. proce- to The cause their relationship ment to each other as cards, issued, as issued distinguished dural issue whether from their relation- daily copyright, with notice 17 ship on a basis to each other as collected in an annual § 401, required regis- were be example, For mystery volume. story pursuant Copyright tered with the Office published daily the form might clues § § 411 (prohibit- to 17 U.S.C. id. see protection secure for each clue because of prior registration ing infringement suit relationship previously to what has ap- claim), copyright registration or whether perhaps peared and even will ap- what sufficed, the annual volume see id. pear. application of that approach to § 408(c)(1)(authorizing regulations per- reported facts like those on appearing FII’s registration single group mit for “relat- arguable, though cards is doubtful since works”). yet ed We have not resolved that appear signifi- these to have primary issue. cance as day. issued each sufficed, registration If annual sub- By copying cards, daily FII’s Moody’s is statutory stantive issue is whether the cri- necessarily not copyright infringer or a protectable “compilation” teria of a must Though “serial thief.” it would be liable only be each card satisfied if had conversion stolen from FII’s series cards that constitute FII’s called office the on daily sheets which the bond “service” and are collected in the are assembled for might be Judge annual volume. I am not as sure as competition liable for unfair if it appropri copyrightability that the Carter of the an- competitive ated purposes material not (assuming nual volume for the moment copyright,1 entitled to it has not committed established) necessarily that such be can copyright infringement unless the*material requires copyright protection daily for the copied protec has is entitled may satisfy cards. The annual volume tion. statutory criteria a “compilation” even protection Whether such exists cannot be though daily Congress cards do not. determined until further facts have been recognized has that the in com- Principal among found. these are the facts pilation “extends the material con- selection, concerning whatever coordina- work, by the author of tributed tion, or arrangement of the data on the distinguished pre-existing from the materi- cards I may have occurred. therefore con- work____” employed al in the 17 U.S.C. in the cur decision remand for further § 103(b). might copy- Just as the cards be inquiry. not, rightable though the data on them are might copyrighta- so the annual volume be daily even if the cards are not.

ble copy-

It remains to be determined what

right protection, any, the copyright in the daily upon

annual volume confers

cards. I doubt that of each card simply protec- arise denial of because impair copy-

tion would the value argu- That

right the annual volume. boot-strapping.

ment seems to be How-

ever, daily components publi- serial perhaps might copyrightable be be-

cation Called Bond Cards are not because the cards are not "works of author- If compilations, competition ship,” Copy- rightable unfair 17 U.S.C. 301. See 1 Nimmer (1984) (“if might preempted under state law not 1.01 at 1-22 a work does [B] claim asserting rights authorship,' ... as a either because would constitute a 'work equivalent compilation ... under Section then "that exclusive (footnotes omitted). rights general scope copyright” preemption”) within federal

Case Details

Case Name: Financial Information, Inc. v. Moody's Investors Service, Inc.

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 18, 1984

Citation: 751 F.2d 501

Docket Number: 1321, Docket 84-7110

Court Abbreviation: 2d Cir.