It is well-established that “facts are not copyrightable.” See Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344 (1991); see also Arica Institute, Inc. v. Palmer, 970 F.2d 1067, 1074-75 (2d Cir. 1992) (“facts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted”) (citation, alteration, and internal quotation marks omitted).

In Feist, which involved a claim of copyright infringement over a telephone directory published by a public utility company, the Court held that the utility company's arrangement of the information in the telephone directory, which was “limited to basic subscriber information and arranged alphabetically,” lacked the requisite originality to be copyright protected and thus any copying did not constitute infringement. Id. at 361-64. The underlying facts (such as the names, towns, and telephone numbers in the directory) were not copyrightable, and that included the fictitious entries inserted by the utility company to detect copying. See 499 U.S. at 361.

Even “false” facts that are represented as being actual facts would not be copyrightable because otherwise “no one could ever reproduce or copy actual facts without risk of reproducing a false fact and thereby violating a copyright.” Nester's Map & Guide & Corp. v. Hagstrom Map Co., 796 F.Supp. 729, 733 (E.D.N.Y. 1992).

Intentionally Inaccurate Facts

In ID Tech LLC v. Bayam Group, Inc., No. 1:19-cv-08439-VF, (S.D.N.Y Mar. 29, 2023), the plaintiff contended that because the measurements published on its website were intentionally modified to be slightly less than the actual widths and lengths of each piece of jewelry being sold, the information published on the website was original and entitled to copyright protection.

The Court held that “nothing on the Frost Website would indicate to a consumer browsing the jewelry on the site that the weight and dimensions of an item of jewelry being sold is not accurate.”

The dimensions are considered facts because Plaintiffs represent to customers that they accurately list the jewelry weights to the best of their abilities and that any deviations are inherent to the handmade nature of the jewelry. See Corbello v. Valli, 974 F.3d 965, 980-81 (9th Cir. 2020) (stating that “even dubious assertions of truthfulness can prevent an author from later claiming that part of a work is fiction”) (citation omitted) . . . . “Having expressly represented to the world that” the dimensions on its website are accurate for the products being sold, Plaintiffs are “not now permitted to make an inconsistent claim so as to better serve its position in litigation.” Arica Institute, 970 F.2d at 1075 (citations omitted); see also Penguin Books U.S.A., Inc. v. New Christian Church of Full Endeavor, Ltd., No. 96-CV4126 (RWS), 2000 WL 1028634, at *12 (S.D.N.Y. July 25, 2000) (discussing doctrine of copyright estoppel).

Accordingly, the Court held that the actual dimensions and weight of the jewelry being sold, as well as the fictitious weights and dimensions, constitute facts that by themselves are not copyrightable. See, e.g., Sparaco v. Lawler, Matusky, Skelly, Engineers LLP, 303 F.3d 460, 467 (2d Cir. 2002) (stating that a portion of an architectural drawing setting forth “the existing physical characteristics of the site, including its shape and dimensions, the grade contours, and the location of existing elements . . . sets forth facts”) (citations omitted).

[T]o the extent Plaintiffs' claim of copyright infringement relies on Defendants having copied the weights and dimensions of the jewelry on the Product Pages, the claim fails because Defendants did not copy any protectable material.

The court granted summary judgment of no copyright infringement on this and other grounds.

Thomas P. Howard, LLC litigates copyright cases nationwide including in Colorado.