Averages are Not Copyrightable

On October 24, 2013, in Copyrights, by Brian A. Hall

UnIntellectual Property (UnIP): Copyright for an Average Percentage

The United States District Court of the Southern District of New York has granted Defendant summary judgment with regard to, among other things, Plaintiff’s claim that it has a valid federal copyright in the percentage 3.95% or the series of percentages of national average interest rates.  Plaintiff, Banxcorp, sued Defendants Costco (a large retailer) and Capital One (a large bank) for allegedly unlawfully copying those percentages in a series of individual advertisements about how much higher their particular deposit rates were than the national average, as reported by Plaintiff.

Although the Court had previously determined, at the motion to dismiss stage, that Plaintiff may have a protectable copyright in the percentage, with the benefit of evidence, it held that “averages are unprotectable because they are uncopyrightable facts, because they are too short to be copyrighted, and because the so-called merger doctrine—which applies where there is “only one … or so few ways of expressing an idea, that protection of the expression would effectively accord protection to the idea itself,” id. at 608 (internal quotation marks and alterations omitted)—bars copyright protection.”

I really appreciate this opinion, not because of the holding, which I would have predicted, but because of the way it was written.  Read the first paragraph and you immediately inclined to read more because it does not read like a boring opinion.  Instead it says:

“Consider the percentage “3.95%.” It seems to be a totally ordinary percentage. It is the amount by which Eastern Michigan University increased its tuition and fees for the 2012–13 school year relative to the previous one.It is how much the Mayor of Poughkeepsie proposes to increase the city tax levy for 2014. It is the amount by which sugar prices rose in India one day in November 2012.And, according to Plaintiff Banxcorp, it was the United States national average interest rate for five-year certificates of deposit as of December 21, 2005.”

Ultimately, the opinion is rather detailed and longer than what I would have expected for such a legal issue.  Nonetheless, this Judge and/or law clerk clearly did their.  Score one for the lawyers.  Lawyers 1 – Mathematicians/Statisticians 0

Banxcorp v. Costco Wholesale Corp., 09-CV-1783 KMK, 2013 WL 5677225 (S.D.N.Y. Oct. 17, 2013).


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