Although copyright law is not a central area of research for me, I have written two pieces on the copyrightability of facts and factual compilations.

Copyrighting Facts, 78 Indiana Law Journal 919-64 (2003)

This article, which focuses on economic arguments, is the more substantial of the two. I still like it a lot. I think I make a number of original economic arguments and that my proposed approach to the copyrightability of factual compilations (the "collective fact approach") is more sensible, and more in keeping with fundamental copyright principles, that the one Justice O'Connor uses in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).

One argument that I toss off quickly, but which I think could be explored more, is that an explanatorily powerful scientific theory like Einstein's theory of relativity is not copyrightable because unauthorized uses of the theory are complements, in the sense that they increase its market value. Id. at 954-57. Einstein's theory would have been worth little if it was undisseminated, because it is only through acceptance that people have evidence that it is true. A similar argument explains why new genres (such as the hard-boiled detective novel) are uncopyrightable. A genre has value in part because it provides an easily recognizable framework for readers. Unauthorized use therefore increases the value of the new genre. I haven't seen this argument made in print before.

This article gets cited once and a while, mostly for my statement that without protection for the character of Superman, people would create pornographic films starring him and commercials in which he endorses hemorrhoid creams, even though these works have a negative effect on the value of other actual or potential Superman-based works. The idea, which is not at all original to me, is that copyright protection can be justified, not merely because it encourages the creation of new works, but also because it encourages the efficient utilization of constituents of works that already exist. I guess people cite my article when discussing this idea because the image of Superman in a pornographic film is just too hard to resist.

Two Fallacies about Copyrighting Factual Compilations, in Robert Brauneis (ed.), Intellectual Property Protection of Fact-Based Works: Copyright and its Alternatives 169-204 (Edward Elgar Press 2009)

This book chapter restates the argument of the Indiana piece, with less focus on economics and more on copyright doctrine.

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