Creating Something Out Of Nothing -- Copyright In A Compilation

There are many things that can serve as subject matter for a valid copyright, including music, text, photos, motion pictures, sound records and architectural works. But there is one additional area of copyright -- a compilation copyright -- that is perhaps the strongest, the most powerful, type of copyright. This is so, in part, because a compilation copyright can create something out of nothing.

A compilation copyright is a "super duper" copyright.

A compilation is a work created from preexisting material. A compilation copyright exists when the preexisting material is selected, coordinated or arranged in a creative way so that the resulting work, as a whole, is creative. For example, creating a fabric print from preexisting zebra stripe designs can be copyrightable as a compilation of preexisting zebra stripes provided that the zebra stripes are selected, coordinated or arranged in a creative manner. Or, for example, the creation of fabric designs from preexisting third party art can be copyrightable if the selection, coordination or placement of the preexisting art is itself creative.

Section 103(b) of the Copyright Act provides that a copyright in a compilation does not extend to the preexisting material, but it does cover the newly contributed material. That is, the compilation copyright covers the selection, coordination or placement of the preexisting material. And Section 103(b) provides that the copyright in the compilation of preexisting material is independent of the preexisting material.

In other words, the compilation copyright exists by the use of common items, over which there may not be any originality or the right to copyright, in a work produced by the selection of the items, coordinating the items or arranging the items. It is the selection, coordination or arrangement that is protected by the compilation copyright.

Two recent cases from the Ninth Circuit underscore the tremendous power of the compilation copyright. In Meridian Textiles v. Topson Downs of California, issued on May 22, 2015, the Ninth Circuit reversed a dismissal of a case involving fabric print of zebra stripes.

The Ninth Circuit stated that the selection, coordination or arrangement of designs in the fabric could itself serve as a basis for a compilation copyright independent of any preexisting design: "and the district court may not say as a matter of law that 'the differences in the placement of geometric shapes should be regarded as trivial.'”

In ITC Textile v. Wal-Mart Stores, issued June 1, 2015, the Ninth Circuit held that the compilation of design elements in a fabric print can be copyrightable even if the elements consist of preexisting design. In this case, there was evidence that plaintiff's fabric designs consisted of paisley graphics taken from third party sources:

The Ninth Circuit held that the selection, coordination or arrangement of preexisting designs can be separately creative and copyrightable.

But the declaration submitted by Appellees to rebut the presumption of validity did not actually show that the designs were unoriginal in the relevant sense, because it presented no evidence that the compilation of elements in either the Symphony Sweet or Medallion Art design lacked originality. 

Further supporting the super duper status of a compilation copyright, this type of copyright is one of the limited number of works that is a work-for hire. Plus the transfer of a compilation copyright, as a work for hire, is not subject to early termination.

So, a compilation copyright is super duper, indeed.