A work must have at least a minimal amount of creativity to get copyright protection. This can pose a barrier to copyrighting compilations of facts, such as lists, directories, and databases. The information in them is not original, but they still may receive protection if the people who compiled them used some creativity in the process of selecting or arranging the information. This does not mean that the selection process must be unprecedented or bizarre, but it should not be so mechanical that it required no thought. For example, a telephone directory likely will not receive copyright protection because listing the names in alphabetical order does not show enough creativity. (The Supreme Court reviewed this situation in the main case discussing copyrights for lists and directories.)
More often than not, databases will not receive copyright protection. Courts have not created a specific rule on the subject. However, they would be likely to follow the guidance of the U.S. Copyright Office, even though it is not binding law. The Copyright Office has been skeptical of copyright applications for these materials.
Common Types of Directories and Lists
Many lists are similar to the telephone directory example considered by the Supreme Court. These include mailing lists, membership and subscriber lists, street addresses, and directories that list the contact information for certain groups of people, such as college alumni. In most cases, copyright will not be appropriate for these lists because they are arranged in an obvious manner. They are typically arranged alphabetically or numerically, and the people compiling the list do not choose which items to include. Moreover, a mailing list of people who made political contributions that was organized by zip code was found to lie outside the boundaries of copyright protection.
Some more complex issues may arise with regard to genealogies, which record the ancestry of a family. If the genealogy reproduces public records or transcribes cemetery headstones, this will not qualify for copyright protection. If the people who compile a genealogy choose among various sources in selecting the information, this might meet the minimal creativity requirement. If the diagram of the genealogy is ingeniously arranged, this also might meet the requirement. Some genealogies may be copyrightable if they include original narrative descriptions of a family’s ancestors, since these passages were not copied from another source.
Factory and store inventories do not receive copyright protection. They are meant to be comprehensive, so no choice is involved in compiling their content. Also, they are generally arranged in alphabetical or numerical order. Businesses may be able to protect their inventories as trade secrets instead. (Read more here about trade secrets, which are a different form of intellectual property.)
The De Minimis Rule
If a compilation is very small, it may not qualify for copyright protection even if it contains some minimal creativity. “De minimis” means “insignificant” in Latin. The Copyright Office will not register a compilation of three or fewer items that are copied from somewhere else. No copyright infringement claim can arise when someone copies this type of list, since a copyright must be registered before its owner can bring a lawsuit.