Talk:FHM-U.S.'s 100 Sexiest Women 2005

Achived discussion from Wikipedia:Village pump (policy)

Articles on compilations from other sources

The article FHM-US's 100 Sexiest Women 2005 has been stuck in a debate at Wikipedia:Copyright problems over whether or not it's a copyright violation. The article lists, in order, the 100 names that had been reported in FHM magazine as the results of an annual poll it conducts (here is the 2004 list to show what it looked like). Some people are arguing that FHM has the copyright on this list. Others (including myself) think that the list itself is not copyrightable because the magazine editors did not select and rank the results; they reported the results of a poll. The magazine also added editorial content by selecting pictures and text to accompany the list, but none of this was included in the Wikipedia article so it wasn't an issue.

The issue is still unresolved. Some people say it is a copyright violation and others disagree. Unfortunately the original discussion has died down with no agreement reached. So in order to seek a wider range of information and hopefully reach a consensus, I'd like to open a discussion here. MK2 15:21, 24 Apr 2005 (UTC)

The list is certainly copyrightable, regardless of whether it is a poll or not. Since FHM conducted and compiled the poll, they own the copyright to the list. Reproducing the list on Wikipedia without permission would constitute a violation of FHM's copyright. Kaldari 01:44, 25 Apr 2005 (UTC)

A counterexample that others have given are lists of Academy Award winning actors, Pulitzer Prize winners, or Nobel laureates. These are all lists of people that are basically copying the work of the organizations that gave out the awards. From a legal standpoint, what is the difference between FHM-US's 100 Sexiest Women 2004 and Academy Award for Best Actor? MK2 03:42, 25 Apr 2005 (UTC)

None of those other examples are analogous because none of those compiled a ranked list that was arranged in a particular order. That an individual has been given an award or honorific constitutes an isolated fact that cannot be copyrighted, and a list of such awards organized chronologically is no more creative than the alphabetical phone book in Feist v. Rural. What is copyrightable is the compilation of an ordered list of selected individuals. If FHM did the selecting and arranging in some meaningful way that was creative rather than purely functional, then it may be copyrightable as a whole, though not in isolated references to specific parts. How was this poll conducted and compiled? If it was conducted according to standard industry phone sampling, and the list was merely compiled from a numerical tally of those results, then it would likely fail the originality test. Postdlf 04:04, 25 Apr 2005 (UTC)

Interesting point, but do you think the Oscars, Pulitzers, or Nobel Prizes are awarded based on phone sampling? FHM conducting a self-selected poll of its readers and awarding the highest vote getter the title "Sexiest Woman of 2005" is no different, from a copyright standpoint, than the Academy of Motion Pictures Arts & Sciences conducting a self-selecting poll of its members and awarding the highest vote getter the title "Best Actor". MK2 06:27, 25 Apr 2005 (UTC)

I'm not sure why you're continuing to labor this point, because I had just said mere reporting of any standard phone survey results would not be copyrightable, without some creative editing or intervention in the process. But regardless, you need selection and arrangement to have a copyrightable compilation. Determining a winner just gets you a selection of one fact—who your winner is—but no arrangement, and independent facts can't be copyrighted, only original arrangements or expressions of facts. Conducting a poll to get a ranked list gets you selection and arrangement, so the question is then only whether there is some creative editing control over the end result, or some creative step added to the process that isn't merely functional. Postdlf 06:54, 25 Apr 2005 (UTC)

I think you and I are actually in agreement on this issue. In this particular case, FHM conducted a poll and printed the results - the 100 women who got the most votes ranked in order from the one who got the most votes to the one who got the 100th highest total. So there was essentially no editorial input at this point other than the decision to conduct the poll. Then the magazine added editorial content by selecting pictures and writing short text articles to accompany the results - I think everyone is in agreement that the picture selections and text are copyrightable. So as long as the Wikipedia article only list the names and their ranking it's okay. MK2 02:33, 26 Apr 2005 (UTC)

Yes, we are in agreement on that, if the poll was conducted in that manner. Postdlf 05:16, 30 Apr 2005 (UTC)

Simply compiling the information is not enough. There has to be some element of originality in the selection and arrangement (see Feist v. Rural). I'd have to know more about how the poll was conducted to really state a conclusion, but it's at best an issue on the outer edge of copyrightability. I have been unable to find a single court case that has involved an infringement claim based on survey results, btw. Postdlf 02:16, 25 Apr 2005 (UTC)

It would be great if instead of having just the lists (which don't really add much; a user interested in this list may as well go to the FHM website and get the pictures too) we have some analysis of the FHM-US lists as they have existed for the past 5 years. Who has appeared every year? Who has highest average position? Some commentary on how the lists were created. Not sure if this would make the copyright problem go away, but it would be more interesting content. Pcb21| Pete 08:21, 25 Apr 2005 (UTC)

You may want to read below. Providing factual comparisions might skate the line with original research, but may very well meet the needs of Feist v. Rural.--ghost 04:09, 27 Apr 2005 (UTC)

Re original research: The "no original research" policy always used to be about preventing crackpot physics theories turning up as fact on Wikipedia and the recent extension of its intent is harmful. In practice we have to be able to do a modicum of synthesis else everything will be copied from elsewhere. Pcb21| Pete 08:34, 29 Apr 2005 (UTC)

We appear to have reached another deadlock. Based on the comments posted here and at the original discussion, this is what we have (with my paraphrasing of people's opinions)

Believe the list is protected by copyright:

• RickK
• Korath - FHM selected the people on the list and made the order
• Physchim62 - FHM had creative input into the list
• Kaldari - copyrightable because FHM conducted the poll

Believe the list is not protected by copyright:

• MK2
• Quadell - is not certain
• Burgundavia - doesn't think a simple list can be copyrighted
• Postdlf - not copyrightable unless FHM added creative input to the results of the poll

Other

• Pcb21|Pete - suggesting adding new editorial content
• ghost - commented on original research policy

MK2 18:09, 6 May 2005 (UTC)

MK2, you appear to have resolved the matter with your summary, for:

• RickK gave no reason
• Korath's statement that FHM selected the people on the list and made the order is inaccurate, based on the description of how the list was compiled: was a survey and FHP just used the results of the survey, without reordering to add some creativity.
• Physchim62, as with Korath, the method used now it's known is presentation of poll data, without selection or reordering by FHM.
• Kaldari, the sweat of the brow doctriine no longer exists - you don't get copyright for any amount of hard work, only by being creative - see Feist v. Rural and the recommended reading I've just posted: "That this process takes much time and effort is wholly irrelevant to whether the end product of this work is copyrightable".

So, it appears the facts of the case and well established law have resolved reservations of those who gave a reason for thinking it was copyrightable. Jamesday 10:25, 21 August 2005 (UTC)

You can't vote on what the law is! It's like voting on whether gravity keeps us on the planet - a majority vote against it won't make us all float away. Leave it to the experts (in this case, Postdlf). See also Kregos v. Associated Press, 937 F.2d 700 (2d Cir. 1991), holding that a particular selection of factors to gauge the performance of pitchers could not be copyrighted, nor could a mere arrangement of such factors, but a particular arrangement of those specific factors could (e.g. not "A" alone, nor "B" alone, but "A+B" together). Here, we are not copying the arrangement, just the results of applying the particular selection of factors. -- BD2412 ^talk 23:17, 2005 May 18 (UTC)

It seems to me it's hard to argue it either way. See U.S. Copyright Office - Copyright Basics: What Is Not Protected by Copyright? -- AllyUnion (talk) 09:05, 21 May 2005 (UTC)

• Having read the comments here so far, it seems to me the list alone is not copyrightable. Here is another way to think about it: Some organizers had a sort of a contest. The results were made known, along with a a lot of interesting detail concerning the contestants and the contest itself. Later, a second party posted the rankings of the contestants. Did the second party violate the first party's rights in any way?

1. MLB Baseball season rankings Newspaper
2. FHM Sexiest women rankings Wikipedia

Example	Organizers	Contest	Method	2nd Party
1	Major League Baseball	Baseball team standings	Played a bunch of games	Newspaper Sports page
2	FHM	Sexiest women rankings	Asked a bunch of people	Wikipedia

Why is example 2 any different than example 1?

However, that the New York Times disagrees with me. They have pursued action against other publications that have re-published their best-seller list. For example, they went after www.amazon.com [1] for using the New York Times bestseller list as a basis for providing purchase incentives (books on the lsit were to be discounted). This was quickly settled [2] with Amazon agreeing to certain terms, including; listing the books alphabetically instead of in-order, and sharing sales information with the New York Times. Since this didn't make it to a legal ruling, it does not set a legal precedent. Maybe someone can find an example that did go to court? Johntex 02:11, 1 Jun 2005 (UTC)

• Here's one that might be related. The Court Service-Chancery Division-judgment But I'm no lawyer and it's a UK issue. It's William Hill bookmakers against the jockey club and the British Horseracing Board over the use of fixtures, racecards and other data held in the form of a database. I think it's relevant because FHM's information is quite possibly held in a database. However, I don't know whether the publication of the material in FHM negates database extraction. Do newspapers print the whole list, or do they just mention who's top? Hiding 19:52, 13 Jun 2005 (UTC)

In the UK and much of Europe there is something called a database copyright, which covers a substantial collections of facts in a database, granting it a much shorter than usual copyright term. In the US, there is no such database copyright. In the UK, would then have to argue whether this was substantial enough and explain why the BBC gave the full ranked listing. Jamesday 10:25, 21 August 2005 (UTC)

OK, I'll bite. Example 1 contains facts which can be verified independent of any newspaper or press service publication (I do not believe MLB can claim ownership of such rankings as they are simply objective facts that can be obtained through a variety of sources). Such rankings are simply a compilation of publicly accessible information. The information in example 2 was collected by a proprietary method. There is no way to independently determine what the contents of that list is except as that information is released by the publication. older≠wiser 02:22, Jun 1, 2005 (UTC)

But don't forget example 3 - Feist v. Rural. Company A goes out and collects all the information (name, phone #, address) of everyone in the town, then publishes it in a phone book; company B skips the expense and copies company A's list of names and numbers, arranging them alphabetically (of course, because it's a phone book). The organizer here is company A; the "contest" was getting all the info from the town residents; the method was going door to door and checking who lived where and had what number; and the secondary user was company B. If FHM is just sampling opinions (like Company A gathering info from residents), is that info "authored" by FHM? -- BD2412 ^talk 06:51, 2005 Jun 2 (UTC)

For what it's worth, here's how the poll is conducted. FHM announces the existence of the poll in its magazine and on its website. Anyone who wishs to vote can submit up to ten women for inclusion on the list by mail or email. There is no pre-generated list of nominees. FHM does not specifically solicit opinions and does not contact any individuals for their opinions. There is no prohibition against submitting multiple votes. At a certain point, FHM stops the voting and counts up how many votes each woman got. The women are ranked from 1 to 100 based on how many votes they received. FHM publishs the results along with pictures and text. The results (but not the pictures or text) are also released by FHM to the media for promotional purposes. MK2 04:59, 12 Jun 2005 (UTC)

Original to page discussion

• Having read the comments over at the Village Pump, it seems to me the list alone is not copyrightable. Here is another way to think about it: Some organizers had a sort of a contest. The results were made known, along with a a lot of interesting detail concerning the contestants and the contest itself. Later, a second party posted the rankings of the contestants. Did the second party violate the first party's rights in any way?

1. MLB Baseball season rankings Newspaper
2. FHM Sexiest women rankings Wikipedia

Example	Organizers	Contest	Method	2nd Party
1	Major League Baseball	Baseball team standings	Played a bunch of games	Newspaper Sports page
2	FHM	Sexiest women rankings	Asked a bunch of people	Wikipedia

Why is example 2 any different than example 1?

However, that the New York Times disagrees with me. They have pursued action against other publications that have re-published their best-seller list. For example, they went after www.amazon.com [3] for using the New York Times bestseller list as a basis for providing purchase incentives (books on the lsit were to be discounted). This was quickly settled [4] with Amazon agreeing to certain terms, including; listing the books alphabetically instead of in-order, and sharing sales information with the New York Times. Since this didn't make it to a legal ruling, it does not set a legal precedent. Maybe someone can find an example that did go to court? Johntex 02:11, 1 Jun 2005 (UTC)

Worth remembering that you can sue anyone, right or wrong, Amazon didn't need to present them in sorted order, NYT got something Amazon probably didn't care about and both got to walk away without legal bills. :) Jamesday 10:25, 21 August 2005 (UTC)

Um, I've seen this article before the blanking, and all it is is a simple list without any sentences whatsoever. How can that be considered copyright infringement? → JarlaxleArtemis 02:55, Jun 16, 2005 (UTC)

Just to poke in for the heck of it, I don't really see why this list has any value or use in an encyclopedia?

human 04:53, Jun 22, 2005 (UTC)

I don't see how it does either. → JarlaxleArtemis 00:18, Jun 23, 2005 (UTC)

It does in an encyclopedia which aims to be comprehensive.

Recommended reading

To assist in understanding the copyright status here I recommend reading the decision in CDN Inc. v. Kapes, 197 F.3d 1256 (9th Cir. 1999). Key parts of the decision read:

• "That this process takes much time and effort is wholly irrelevant to whether the end product of this work is copyrightable. See Feist, 499 U.S. at 349. The Supreme Court in Feist expressly rejected the "sweat of the brow" theory of copyright which would protect subject matter that was expensive and time-consuming to gather". Feist here is Feist v. Rural, that phone directory case.
• "Our holding that the prices are copyrightable is consistent with that of the Second Circuit in CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, 44 F.3d 61 (2d Cir. 1994). Maclean Hunter published the Red Book, a list of car values for various regions of the United States. The Red Book listed the editors' projections of the value of different kinds of used cars for six weeks after publication. CCC Information Systems had used these values in compiling its computer databases. Maclean Hunter sued for infringement, and the district court found that the values were facts and as such were not copyrightable. The Second Circuit reversed. The court held that the valuations were not "pre-existing facts that had merely been discovered by the Red Book editors," but instead "represented predictions by the Red Book editors of future prices estimated to cover specified geographic regions." CCC, 44 F.3d at 67. Like CDN's prices, the prices in the Red Book granted copyright protection by the Second Circuit, are "based not only on a multitude of data sources, but also on professional judgment and expertise.""

As we've discovered from the way the list is compiled, in the case of the FHM list, FHM in fact exercises no creativity in selection or arrangement, since it's presenting the results of a reader poll without any reordering. Hence, the expert opinion and judgment which made the list of prices copyrightable doesn't exist here. That leaves us with Feist v. Rural and the ineligibility for copyright of a collection of facts without creative input.

For more general reading, I recommend the decisions in the Cornell introduction to copyright law.

Based on the legal precedents and the absence of the required modicum of creative input in deciding who should go on the list or in what position, I see no copyright here. If anyone can find some creativity - such as FHM lying about how they produce the list, so they do have creative input, that might change things.

Of course, the magazine issue with the list, photographs description of the people and a specific layout is copyrightable, for those presentation elements are not simply facts. Jamesday 10:25, 21 August 2005 (UTC)

Excellent summary. Plain and simple fact is, the results of polls like these are reproduced in secondary media sources all the time, like the gossip and entertainment sections of daily newspapers. The researchers, FHM, are credited there just as they are here. That's enough. 203.173.21.69 21:53, 3 January 2006 (UTC)