Dear Rich: Nolo’s Patent, Copyright & Trademark Blog

Dear Rich: I've noticed that there are a lot of quote books about Abraham Lincoln, Confucius, Albert Einstein, and other famous folks. If I wanted to write my own quote book for a famous person who lived before 1923, what is the best way to go about making sure I don't get sued? I'm so glad you asked. As Confucius says,"The cautious seldom err." You appear to be aware that 1923 is the magic year for the public domain. In the U.S., everything published before then is free to reproduce. Therefore, according to the Dear Rich staff (and the U.S. Supreme Court), the only way you will run into a problem using pre-1923 material is if you copy somebody else's original selection and organization of similar quotes. If you're not clear about all this -- like Confucious says, "The people may be made to follow, but they may not be made to understand," -- then check out Steve Fishman's great book on the PD.

Number crunchers might enjoy two recently decided copyright cases. In Bensbargains.net, LLC v. XPBargains.com, a website (Bensbargains.net) compiled some of the best shopping deals on the web. A competitor (XPBargains.com) copied the Bensbargains deals. A California federal court held that the Bensbargains compilations were copyrightable and set a numerical (and novel) threshold of 70% for infringement--that is, infringement occurred if 70% of all Bensbargains deals appeared at the XPBargains site.

In a second case, New York Mercantile Exchange v. Intercontinental Exchange, the New York Mercantile Exchange ("NYMEX") sought to enforce a copyright in its settlement prices -- numbers that are used when trading energy futures. NYMEX claimed copyright in these numbers (not in their compilation or collection). "Claimed" would be the key term, here since it's a basic premise of copyright law that protection won't be granted for individual numbers. (The Copyright Office refused the NYMEX registration.) Nevertheless, NYMEX pursued this lawsuit and lost. The court relied on the merger doctrine--a principle that copyright won't protect ideas when they're inseparable from the manner in which they're expressed.

For more about copyrightability and intellectual property law, pick up a copy of my book Patent, Copyright & Trademark: An Intellectual Property Desk Reference (Nolo), now in its 9th edition.