10 September 2003

Ghosts of Feist Present
Note for the humor-impaired: The following letter is a humorous attempt at some education. If you don't find it amusing, keep in mind that I don't find the underlying problems amusing.

Dear Angela:

   I am the ghost of Feist Pubs., Inc. v. Rural Tel. Servs. Co., Inc. present. I have come to haunt you on an error of copyright law that you referred to in this week's Writer's Weekly newsletter that originates on your website.

WritersWeekly.com's paying markets are original market listings, created after interviewing editors at each publication. We pay our managing editor to conduct this exhausting work. We do this for OUR readers, not for our competitors' readers. When someone steals our markets, it hurts OUR readers because YOU then have to compete with the copyright thieves' readers for these writing assignments. Theft of our copyrighted material lessens the value of our content and makes it more difficult for OUR readers to get work.

There is just one small problem with this assertion: Under Feist, the work your managing editor puts into creating the market listings does not make them copyrightable. Here is an example of one such listing from this week's newsletter:

CPA Online
Current Needs: "Articles for our monthly e-newsletter and possible future publications."
Payment: Is "flexible" and depends on difficulty of article and experience of writer.

The listing is an alphabetical compilation of facts divided by date of first appearance in the listing. The individual online listings are slightly more extensive than is the one quoted above, but nonetheless remain factual compilations with virtually no original expression or creative arrangement of entries.

   On these facts, the market listings are not copyrightable material. This does not excuse the unfair trade practice of wholesale copying and claim of origination by third parties. The stripping of the Writer's Weekly mark from the material may create a cause of action under the Lanham Act or other trademark law. However, what appears to be at issue does not include copyright infringement.

   This leads to another question: whether the listings have been registered. I hope that I need not remind you that you won't be able to sue on a copyright theory until you receive the registration back from the Copyright Office, and that you won't be able to obtain attorney's fees or statutory damages unless the registration was timely (within 90 days of original publication—leaving aside, for the nonce, that the Copyright Act does not define "publication" for textual materials). But I am sure that you're aware of this.

   Misuse of copyright is itself a violation of the Copyright Act. Although your assertion of copyright in the market-listing material is incorrect, it does not rise to the level of misuse. What it does do is undermine respect for copyright, which is exactly the opposite of what you should be doing in a pro-author's newsletter. While the name-calling in your post does not rise to the level of defamation, it is close, as you specifically accuse several publications of "theft" without a proper legal basis for characterizing their actions as "theft."

Noncorporeally yours,
The Ghost

P.S. Nice drapes.