Are Website User Reviews Copyrightable?

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

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. 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.