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Monday, November 5, 2007

Who Owns #1?: Do College Football Rankings Receive Copyright Protection as Databases?

by: John Geis, Associate Editor, MTTLR

It’s that time of year again: crisp Saturday afternoons, college football, and the release of the Bowl Championship Series ("BCS")1 standings. The BCS standings determine who plays for the NCAA Football Division I national championship and are reprinted in newspapers across the country. In 2004, the Associate Press (“AP”) sent a cease and desist letter to the BCS demanding that the BCS refrain from using the AP Poll in its calculations.2 In its letter, the AP claimed that its poll had copyright protection. While notice is no longer necessary to secure copyright, and, either way, the copyright on the newspaper is sufficient notice for its separate contributions,3 it remains to be seen whether the rankings themselves are protected by copyright.

College football polls, like telephone books and price lists, should be treated as databases under copyright law. U.S. and international copyright law4 protect the databases as compilations of data, thereby only protecting the database to the extent of its selection and arrangement of data. The Supreme Court ruled that a residential telephone book did not receive copyright protection because the alphabetical listing of names and phone numbers lacked originality, "the sin qua non of copyright."5 However, the Second and Ninth Circuits have granted copyright protection to the information contained in the Red Book of used car values and Greysheet of coin prices because they were not "pre-existing facts that had merely been discovered…these predictions were based not only on a multitude of data sources, but also on professional judgment and expertise."6

Beginning the copyright protection analysis with polls, the AP Top 25 College Poll is "compiled from votes by 65 sportswriters and broadcasters from across the country."7 The USA Today Top 25 Coaches’ Poll "is made up of 60 head coaches at Division I-A institutions. All are members of the American Football Coaches Association."8 The Harris Interactive College Football PollSM is constructed of "a panel of former players, coaches, administrators and current and former media."9 Each of these polls could make a solid argument that their polls do not discover pre-existing facts. Instead, these polls harness the collective professional judgment and expertise of writers, coaches, players, and administrators to determine an original expression of the Top 25 college football teams. The professional judgment of the voters is expressed in the pre-season rankings and in the adjustment of their rankings each week as teams begin to win and lose. One may argue that the top two or three teams are often identical and the selections are limited to the 119 NCAA Division I teams. Granted, sometimes the voters’ expressions are the same as voters in other polls, but often they are not, as exemplified by the 2003 end of season rankings in which the polls did not agree, and the AP #1, USC, was left out of the national championship game.10

On the other side of the coin toss, however, are the computer rankings.11 Computer rankings use a computer model to determine the team rankings based on inputs such as wins, losses, margins of victory, and opponents’ wins and losses. While the rankings are "based . . . only on a multitude of data sources,"12 the selection and interrelation of inputs may show some originality and professional judgment. Obviously, rankings solely based on wins and losses would not show the requisite originality.13 Yet, one could argue that the computer rankings are like the Red Book values in Maclean. However, one must be careful not to blur the distinction between copyright protection for the underlying computer program and protection for the output rankings. That is, does the originality in selecting process inputs transmute the input facts into an original output? Or, are the output rankings sufficiently merged with the underlying computer algorithms to be barred by §102(b)?14 In the end, computer rankings take in a large number of facts and formulaically translate those facts into other facts, which are then sorted. Facts are not original and, thus, are not copyrightable.

Lastly, there are the BCS standings. According to the BCS website, the methodology of the standings "include three components: USA Today Coaches Poll, Harris Interactive College Football Poll and an average of six computer rankings. Each component will count one-third toward a team's overall BCS score. All three components shall be added together and averaged for a team's ranking in the BCS Standings. The team with the highest average shall rank first in the BCS Standings."15 The BCS would likely argue that the selection of polls and rankings used and that the commission of Harris Interactive to replace the AP Poll in 2005 are sufficiently original to receive protection. However, like computer rankings, the BCS standings are formulaic transformation of pre-existing facts.16 This in and of itself does not preclude copyright protection, but simple averaging of other rankings is so mechanical and routine as not to require any creativity whatsoever.

In reality, the BCS and other "name brand" rankings receive much of their protection under Lanham Act and state trademark laws. After all, no-one really cares how I rank the Top 25. But as rankings have become big business in the BCS17 and in society in general,18 determining how much copyright protection rankings may receive will need to be answered. The polls should receive copyright protection for their rankings because they fold in the professional judgment and expertise of the voters. Computer rankings and the BCS, however, simply manipulate pre-existing facts into more unprotectable facts.

1  Bowl Championship Series, http://www.bcsfootball.org/bcsfootball/ (last visited Nov. 5, 2007).
2   Letter from George Galt, Associated Press, to Kevin Weiberg, Bowl Championship Series Coordinator (Dec. 21, 2004), available at http://www.usatoday.com/sports/college/football/2004-12-21-bcs-ap-letter_x.htm.
3  17 U.S.C. § 101(e) (2007). Section 404 states that "a single notice applicable to the collective work as a whole is sufficient to [defeat defendant’s claims of innocent infringement], as applicable with respect to the separate contributions it contains." 17 U.S.C. § 404 (2007). The definition for "collective work" includes a "periodical issue." 17 U.S.C. § 101 (2007).
4  "A 'compilation' is a work formed by the collection and assembling of…data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship." 17 U.S.C. § 101 (2007). "Compilations of data . . . which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such." Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), Jan. 1, 1996, Article 10(2) (1996). Contra Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996, Article 7, Official Journal L 077, 20-28, Mar. 27, 1996, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML ("Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.")
5  Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).
6  CDN Inc. v. Kapes, 197 F.3d 1256, 1261 (9th Cir. 1999) (quoting CCC Information Services, Inc. v. Maclean Hunter Market Reports, Inc., 44 F.3d 61 (2d Cir. 1994, cert. denied, 516 U.S. 817 (1995)).
7  Associated Press, AP College Poll Voters, http://onlinenews.ap.org/collegefootball_rankings/voters (last visited Nov. 5, 2007).
8  USA Today, Top 25 Coaches' Poll, http://www.usatoday.com/sports/college/football/usatpoll.htm (last visited Nov. 5, 2007).
9  HarrisInteractive, Bowl Championship Series, http://www.harrisinteractive.com/news/bcspoll.asp (last visited Nov. 5, 2007).
10   Wikipedia, BCS National Championship Game, http://en.wikipedia.org/wiki/BCS_National_Championship_Game (last visited Nov. 5, 2007).
11  E.g., Jeff Sagarin, NCAA Football Ratings, USA Today, http://www.usatoday.com/sports/sagarin/fbt07.htm (last visited Nov. 5, 2007).
12  CDN Inc. v. Kapes, supra note 6.
13  "[T]he selection and arrangement of facts cannot be so mechanical or routine as to require no creativity whatsoever." Feist, supra note 5, at 362.
14  "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." 17 U.S.C. § 102(b).
15  Bowl Championship Series, BCS Standings, http://www.bcsfootball.org/bcsfb/standings (last visited Nov. 5, 2007).
16   See, ESPN, BCS Standings, http://sports.espn.go.com/ncf/BCSStandings (last visited Nov. 5, 2007).
17  "The share to each conference with an annual automatic berth in the BCS (ACC, Big East, Big 12, Big Ten, Pac-10 and SEC) is approximately $17 million. If a second team from one of those conferences qualifies to play in one of the games, that conference will receive an additional $4.5 million." Bowl Championship Series, 2007-2008 Media Guide, http://www.bcsfootball.org/id/7212064_37_1.pdf.
18   E.g., Fortune 500, Am Law 100, U.S. News & World Reports: America’s Best Colleges and America’s Best Graduate Schools.

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