L to Mid America's Reply Memorandum P 6); (2) the decision to run a 20-year, rather than a standard 40-year search (Id. P 7); (3) the decision not to include a reference to documents regarding past assignments of rent which have no bearing on the current title (Id. P 9); (4) the decision to set out the property tax due dates and amounts payable rather than simply to state that the current taxes are unpaid (Id. P 10); (5) the decision to record that part of the property falls within a public right of way (Id. P 11); (6) the decision to except from the commitment any rights of way for "drainage ditches, and subsurface tiles, feeders and laterals" that may exist (Id. P 12); and (7) the decision to certify that the street address and legal description are the same property by using a calculation of land area rather than set forth the lot dimensions (Id. P 13). While making each of these selections took time, none of them entailed sufficient creativity to trigger copyright protection, for the following reasons.
The decision to use a modern legal description rather than one based on a 19th century treaty is not a creative one -- it is as obvious as choosing, for example, to arrange customers' names in a telephone book in alphabetical order rather than listing those customer's names beginning with consonants first and those beginning with vowels, second. Moreover, the fact that Mid America used a private, rather than a public source to gain information available to the public at large does not bear on the issue of originality; the decision to use one of two possible sources for a piece of data cannot legitimately be characterized as "original." Thus Mid America cannot claim that its "manner" of selecting this fact is creative.
The examiner's decision to run a twenty-year, rather than a forty-year title search on the property is arguably a creative one. This decision is arguably analogous to a compiler's selection of distances to particular destinations in New York City to list in a cab driver's guide. Nester's Map & Guide Corp. v. Hagstrom Map Co., 796 F. Supp. 729 (E.D. N.Y. 1992). There, the court reasoned that while the actual calculations of distance was a noncopyrightable fact, the author's selection of which distances between destinations he would calculate, based on his knowledge and experience in the area, was copyrightable. Id. at 735. Although the decision to run a twenty-year, rather than a thirty or forty year search appears to involve less creativity than the compiler's decision in Nestor's Map, this particular element might arguably involve sufficient judgment to be claimed "original." Because Mid America does not contest the fact that Ms. Peri, Kirk's secretary independently directed its title searchers, David, Varsek and Dystrup that a twenty-year search for the Schaaf property would be adequate, however, Kirk cannot be found to have infringed this element.
There is no genuine dispute that decisions three (not to reference irrelevant material), five (to record public rights of way), and six (to record rights of way concerning drainage) are ones driven by the profession. Even if title companies are not bound by any legal obligation, as Mid America asserts, to list those facts relevant to awarding title insurance, Kirk has offered unrebutted evidence that they are, as a practical professional matter, driven to do so. Moreover even if Mid America's manner of selecting these particular facts is in some way original, Kirk may copy the facts themselves at will. It does not appear, however, that there is any element of originality in the selection of these facts that can be isolated from the fact itself.
The remaining item, Mid America's decision to report the tax due amounts and dates rather than merely the status of whether they are current, suffers a similar flaw. This is arguably an "original expression" of fact. First, however, Mid America offers no claim or legal arguments supporting a claim to copyright in its particular form or expression of the facts -- its claim was limited solely to its manner of collecting facts. Even if this argument were properly asserted, Mid America could only claim copyright over its particular expression and not the facts themselves. Kirk can freely copy these facts. As Mid America has admitted, Kirk's expression of these facts is not identical to Mid America's; thus, even if he used Mid America's title commitment for this information, he used only a non-copyrightable element.
Under Feist, only the manner of selecting facts, and not the facts themselves can be copyrightable. In this case, the selection of facts used in the compilation was guided by strong external forces. Further, Mid America's own report of the facts included virtually no original expression whatsoever. Mid America's concession that it is standard practice in the field to use the last title commitments prepared for a piece of property as a "starter" for preparing a new commitment, tends to suggest that copyright is not an appropriate means for protecting a title company's efforts in preparing title commitment. Examiners do not attempt to bring anything original to their final product; rather, they seek to record neither more nor less than those facts that are relevant to title. Because originality and not industry is the touchstone of copyright, Mid America's attempt to protect the labor it expends in preparing its title commitments in this manner cannot prevail.
Mid America has not proven that Kirk copied any of the original copyrightable elements of its title commitment. Kirk's motion for summary judgment is granted, and Mid America's motion for summary judgment is denied.
Date: October 7, 1994
REBECCA R. PALLMEYER
United States Magistrate Judge
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED: Judgment is entered in favor of Defendant Kirk and against Plaintiff Mid America Title Company.
Date October 7, 1994