Monthly Archives: September 2010

Are Website User Reviews Copyrightable?

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Are Website User Reviews Copyrightable? by Domingo J. Rivera , Esq.

Internet
review sites continue to gain popularity. Users can find a website where they can review just about anything. From whether
they like the breakfast bar at a particular hotel to their Toyota’s
breaking capabilities (or lack thereof), from whether their obstetrician is friendly
enough to whether their plastic surgeon made their nose a bit too
pointy. If an Internet user wants the world informed of his or her
every interaction with the outside world, there is a platform out
there to accommodate that.

The
question is, are these reviews copyrightable material. If they are,
the author grants a license to publish these materials to the website
and can generally revoke this license. What happens if the original
author demands removal of the review? Can the website refuse to do
so without incurring potential liability for copyright infringement ?
The answer depends on whether these reviews are copyrightable in the
first place and involves an Internet law question. In my opinion, they are. You do not need to be John
Grisham to copyright your writings.

According
to the notes of committee on the Judiciary (1976) for 17 U.S.C. §
102, “[t]he phrase ‘original works of authorship,’ which is
purposely left undefined, is intended to incorporate without change
the standard of originality established by the courts under the
present copyright statute. This standard does not include
requirements of novelty, ingenuity, or esthetic merit, and there is
no intention to enlarge the standard of copyright protection to
require them.” Additionally, regarding the nature of copyright,
the notes further state that “[c]opyright does not preclude others
from using the ideas or information revealed by the author’s work. It
pertains to the literary, musical, graphic, or artistic form in which
the author expressed intellectual concepts” (emphasis added).

It
is well-established that facts cannot be copyrighted. Rather, the
United States Supreme Court has held that “[t]he copyright is
limited to those aspects of the work—termed ‘expression’—that
display the stamp of the author’s originality.” Harper Row,
Publishers Inc v. Nation Enterprises
, 471 U.S. 539, 547, 105 S.Ct.
2218, 85 L.Ed.2d 588 (1985). However, “[c]reation of a nonfiction
work, even a compilation of pure fact, entails originality.” Id.

The
Supreme Court held:

To
qualify for copyright protection, a work must be original to the
author. 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. To be sure, the requisite level of creativity
is extremely low; even a slight amount will suffice. The vast
majority of works make the grade quite easily, as they possess some
creative spark, “no matter how crude, humble or obvious” it
might be. Id., § 1.08. Originality does not signify novelty…

Feist
Publications, Inc. v. Rural Telephone Service Company, Inc.
, 499 U.S.
340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (emphasis added,
internal citations omitted). “[O]riginality requires independent
creation plus a modicum of creativity”, and “creativity” is
“limited to ‘original intellectual conceptions of the author.’”
Id
. at 346.

Even
compilations of facts can be copyrighted, though the copyright is in
the compilation itself and not the facts. As the Feist court
explained:

Factual
compilations… may possess the requisite originality. The
compilation author typically chooses which facts to include, in what
order to place them, and how to arrange the collected data so that
they may be used effectively by readers. These choices as to
selection and arrangement, so long as they are made independently by
the compiler and entail a minimal degree of creativity, are
sufficiently original that Congress may protect such compilations
through the copyright laws. Id.
at 348. “[I]f the compilation author clothes facts with an
original collocation of words, he or she may be able to claim a
copyright in this written expression.”

The
U.S. Court of Appeals for 4th Circuit noted that “… copyright does not secure an exclusive
right to the use of facts, ideas, or other knowledge. Rather, a
copyright gives an author exclusive rights only with respect to his
manner of expression.” Bond v. Blum, 317 F.3d 385, 394 (4th Cir.,
2003) (emphasis added). “The copyright is the author’s right to
prohibit the copying of the author’s intellectual invention, i.e. the
originality of an author’s expression. Since individual expressions
of ideas inevitably vary, the originality inherent in each author’s
expression is the essence of the proprietary interest protected.”
Superior Form Builders, Inc. v. Dan Chase Taxidermy Supply Co., Inc.,
74 F.3d 488, 492 (4th Cir., 1996). What is copyrightable is the
author’s original expression of the facts, not the facts themselves,
and the Supreme Court has held that only a minimal amount of
“creativity” is needed to be considered “original.”

The
question of whether factual works are copyrightable thus focuses on
the original contribution of the author – how the author presents
the facts, how the author chooses, interprets, or analyzes those
facts, the words and terms the author uses to couch those facts, etc.
The Southern District of New York explained it as thus: “[copyright
law] afford[s] protection only to the author’s manner of expression,
that is, the author’s analysis or interpretation of events, the way
he or she structures material and marshals facts, the author’s choice
of words, and the emphasis the author gives to particular
developments.” Werlin v. Reader’s Digest Ass’n, Inc., 528 F.Supp.
451, 461-462 (S.D.N.Y., 1981).Thus,
this Court holds that the Review qualifies as a copyrightable work.

Therefore,
a review is copyrightable as the author’s independent creation and
original expression of facts. The reviewer’s choice of words,
interpretation and analysis of the facts, structuring of the review,
etc. satisfy the minimal creativity standard set by the Supreme Court
to meet the “originality” requirements of the Copyright Act.

Therefore, by refusing to remove reviews at the request of the
original author, the website owner is potentially exposed to a
copyright infringement claim. The ISP immunities under Section 230
of the Communications Decency Act do not apply to copyright claims.