united-states is-x-legal
&quot;Copyright does not protect facts&quot; - is this always true?
<p>Under another question of mine, <a href="https://law.stackexchange.com/a/80822/38587">I got an answer</a> that states &quot;copyright does not protect facts&quot;. However, I'm not sure whether this is always true. For example, there is a site called <a href="https://whosampled.com" rel="nofollow noreferrer">whosampled.com</a> that collects songs and their original samples (which are facts as far as I'm aware). However, <a href="https://www.whosampled.com/terms/" rel="nofollow noreferrer">the TOS of the site</a> states the following:</p>
<blockquote>
<p>Our Service and all material available through our Service, including but not limited to text, graphics, logos, button icons, images, trade marks, databases, data and software (together the Content) are owned and controlled by or licensed to us, our affiliates and/or licensors. Those works are protected by copyright laws and treaties around the world. All rights in the Content are the sole and exclusive property of WhoSampled or such affiliates or licensors.</p>
</blockquote>
<blockquote>
<p>You must not scrape, extract, reproduce, duplicate, copy, sell, resell or exploit any data or other material available on the Service without our express written permission.</p>
</blockquote>
<p>This sounds like they own the fact that one song is sampled from another, which contradicts with the original statement. Am I interpreting this correctly?</p>

<h1>Whosampled.com is not <em>just</em> facts</h1>
<p>The information that a song was sampled in another is a fact.</p>
<p>But <strong>the sample itself</strong> is not a fact! The sample is a sound file and an artistic work, for which Whosampled has most likely a license to offer, but which you under that license may not distribute.</p>
<p>Further, the agglomerate of the whole website is <em>more</em> than just a mere fact, it is a database.</p>
<p>Also, while a simple <strong>fact</strong> is technically free to reproduce, you still might contractually agree to not do certain things, like reproducing the facts.</p>
<p>Yet, Terms of Service don't always hold water and some passages might be illegal - and thus void.</p>

<p>In the US a collection facts might or might not be subject to copyright although the individual facts are not.</p>
<p>Which facts are collected and how they are ordered and arranged could or could not involve creativity.</p>
<p>Creativity is the key not the amount of work to assemble or maintain the collection.</p>

<p><a href="https://www.copyright.gov/title17/92chap1.html#102" rel="nofollow noreferrer">17 USC 102(b)</a> provides that</p>
<blockquote>
<p>(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.</p>
</blockquote>
<p>The case of <a href="https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._Rural_Telephone_Service_Co." rel="nofollow noreferrer"><em>Feist Publications, Inc., v. Rural Telephone Service Co.</em>, 499 U.S. 340 (1991)</a> held that originality is an essential requirement for any copyright protection under US law. In particular it held that the telephone directory in the case had no copyright protection, even though significant effort was expended in creating and maintaining it. It firmly rejected the &quot;sweat of the brow&quot; theory of copyright, that the protection is in part a reward for the effort of collecting facts.</p>
<p>In the <a href="https://supreme.justia.com/cases/federal/us/499/340/" rel="nofollow noreferrer"><em>Feist</em> opinion</a> Justice O'CONNOR wrote:</p>
<blockquote>
<p>This case concerns the interaction of two well-established propositions. The first is that facts are not copyrightable; the other, that compilations of facts generally are. Each of these propositions possesses an impeccable pedigree. That there can be no valid copyright in facts is universally understood. The most fundamental axiom of copyright law is that &quot;[n]o author may copyright his ideas or the facts he narrates.&quot; <em>Harper &amp; Row, Publishers, Inc. v. Nation Enterprises</em>, 471 U. S. 539, 471 U. S. 556 (1985). ... At the same time, however, it is beyond dispute that compilations of facts are within the subject matter of copyright. Compilations were expressly mentioned in the Copyright Act of 1909, and again in the Copyright Act of 1976.</p>
<p>...</p>
<p>The key to resolving the tension lies in understanding why facts are not copyrightable. The <em>sine qua non</em> of copyright is originality. To qualify for copyright protection, a work must be original to the author. See <em>Harper Row</em>, supra, at 471 U. S. 547-549. 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. 1 M. Nimmer &amp; D. Nimmer, <em>Copyright</em> §§ 2.01[A], [B] (1990) (hereinafter Nimmer)</p>
<p>...</p>
<p>The originality requirement articulated in <em>The Trade-Mark Cases</em> and <em>Burrow-Giles</em> remains the touchstone of copyright protection today. See <em>Goldstein v. California</em>, 412 U. S. 546, 412 U. S. 561-562 (1973). It is the very &quot;premise of copyright law.&quot; <em>Miller v. Universal City Studios, Inc.</em>, 650 F.2d 1365, 1368 (CA5 1981).</p>
<p>...</p>
<p>The same is true of all facts -- scientific, historical, biographical, and news of the day. &quot;[T]hey may not be copyrighted, and are part of the public domain available to every person.&quot; <em>Miller</em>, supra, at 1369.</p>
<p>Factual compilations, on the other hand, 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. <em>Nimmer</em> §§ 2.11[D], 3.03; <em>Denicola</em> 523, n. 38. Thus, even a directory that contains absolutely no protectible written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement. See <em>Harper &amp; Row</em>, 471 U.S. at 471 U. S. 547. <em>Accord</em>, Nimmer § 3.03.</p>
</blockquote>
<p>Thus while individual facts from a site such as whosampled will not be protected and may be freely copied, the collection of facts on such a site may be protected <strong>as a collection</strong>, and copying the selection and arrangement of facts may be infringement. And of course individual works or excepts found on the site are likely to be protected.</p>
<p>Note also that site TOS documents and policies may claim more rights than a court would grant.</p>
