The AP Poll - Is it Really Copyrightable?

Yesterday, George Galt of the Associated Press (AP) sent a cease-and desist letter to Kevin Weiberg of the Bowl Championship Series (BCS). For the text of the letter, you can go to USA Today.

The AP claims that the BCS is violating the Lanham Act, state trademark and other laws. Additionally, the letter states "BCS's systematic harvesting of the facts gathered at great effort and expense by AP allows BCS to easily produce its rankings without expending such effort." And that "BCS's unauthorized incorporation of the AP Poll into the BCS rankings directly infringes AP's copyrights and is not exempted from infringement by any provision of copyright law."

The proposition that the AP worked hard for the information is of little importance. In the landmark case of Feist Publ�ns., Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340 (1991), the Supreme Court made it clear that "sweat of the brow" is not a factor in copyright protection, stating that "[t]he primary objective of copyright is not to reward the labor of authors, but 'to promote the Progress of Science and useful Arts.'" However, lower courts seem to still be struggling with the issue, so the outcome could be contrary to the Feist decision.

The proposition that the BCS infringes AP's copyrights is a stretch. The AP Poll is a poll. A poll is defined by Meriam Webster Online Dictionary as "a questioning or canvassing of persons selected at random or by quota to obtain information or opinions to be analyzed" or "a record of the information so obtained." By nature, a poll consists of facts. Again referring to Feist, facts are not copyrightable. "No one may claim originality as to facts. This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery."

Interestingly, Feist directly discusses pollsters, stating "Census takers, for example, do not 'create' the population figures that emerge from their efforts; in a sense, they copy these figures from the world around them. . . . Census data therefore do not trigger copyright because these data are not 'original' in the constitutional sense. The same is true of all facts -- scientific, historical, biographical, and the news of the day. 'They may not be copyrighted and are part of the public domain available to every person."

The votes collected by the AP are facts, and the Feist Court stated that "[c]ommon sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place."

However, the way the AP organizes these facts is copyrightable. Since the BCS uses the facts as part of a formula, it is unlikely that the BCS is copying the format or creative portion of the AP's work.

While no case is ever as clear cut as it initially appears, I think the AP has a hard argument with respect to the copyright issue. Of course, they also claim violation of the Lanham act, state trademark laws, and other laws. Any one of these may make the copyright issue irrelevant.

It will be interesting to watch the BCS, both in the legal arena and in the bowl games. Boomer Sooner!