Bellsouth Advertising & Publishing Corporation v. Donnelley Information Publishing, Inc.

In this appeal, we must decide whether acts of copying infringed the compilation copyright registered in a "yellow pages" classified business directory. The parties have stipulated that the directory, which is a typical yellow pages directory, qualifies for compilation copyright protection. Thus, we are called upon to apply Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991), which addressed copyright protection for a "white pages" telephone directory, to resolve the infringement claims presented to us concerning a directory of a different color.

The pivotal issue in this case is whether that which was copied by the alleged infringer was protected by the registered claim of compilation copyright. The parties agree that the only elements of a work entitled to compilation copyright protection are the selection, arrangement or coordination as they appear in the work as a whole. The parties dispute what elements of a classified directory constitute such selection, arrangement or coordination. Mindful that the protection afforded to a whole work by a compilation copyright is "thin,"1 the determination as to whether an infringement of a compilation copyright has occurred is particularly difficult where less than the entire work is copied.

BellSouth Advertising & Publishing Corporation ("BAPCO") is a wholly owned subsidiary of BellSouth Corporation ("BellSouth") created for the purpose of preparing, publishing and distributing telephone directories. Using telephone listing information supplied by Southern Bell Telephone and Telegraph Company ("Southern Bell"), another wholly owned subsidiary of BellSouth, BAPCO publishes a classified, "yellow pages," advertising directory for the Greater Miami area. The BAPCO directory is organized into an alphabetical list of business classifications. Each business-rate telephone service subscriber is listed in alphabetical order under one appropriate heading without charge. A subscriber may purchase cross listings under different business classifications or advertisements to appear along with its business listing.

After BAPCO published its 1984 directory for the Greater Miami area, Donnelley Information Publishing, Inc. and Reuben H. Donnelley Corp. (collectively "Donnelley") began promoting and selling classified advertisements to be placed in a competitive classified directory for the Greater Miami area. To generate a list of business telephone subscribers to be solicited for placement in its directory, Donnelley gave copies of BAPCO's directory to Appalachian Computer Services, Inc. ("ACS"), a data entry company. Donnelley first marked each listing in the BAPCO directory with one alphanumeric code indicating the size and type of advertisement purchased by the subscriber2 and a similar code indicating the type of business represented by the BAPCO heading under which the listing appeared. For each listing appearing in the BAPCO directory, ACS created a computer data base containing the name, address, and telephone number of the subscriber as well as the codes corresponding to business type and unit of advertising. From this data base, Donnelley printed sales lead sheets, listing this information for each subscriber, to be used to contact business telephone subscribers to sell advertisements and listings in the Donnelley directory. Relying on this information copied from the BAPCO directory, Donnelley ultimately prepared its own competitive directory for the Greater Miami area.

BAPCO sued Donnelley for alleged copyright infringement,3 trademark infringement, and unfair competition. After the district court denied BAPCO's motion for a preliminary injunction, Donnelley answered and counterclaimed against BAPCO, Southern Bell and BellSouth, for alleged violations of federal antitrust law. On the copyright infringement claim, the district court granted summary judgment to BAPCO and denied Donnelley's motion seeking partial summary judgment in its favor,4 BellSouth Advertising & Publishing Corp. v. Donnelly Info. Publishing, Inc., 719 F.Supp. 1551 (S.D.Fla.1988).

The district court found, and Donnelley admitted, that BAPCO owned a valid compilation copyright in its classified directory. Donnelley stipulated that, in preparing its data base and sales lead sheets, it obtained from each listing in the BAPCO directory, the telephone number, name, address, kind of business, and unit of advertising for the listed subscriber. As further evidence of copying, the district court relied on affidavits and deposition testimony from Donnelley's representatives and the presence of a number of erroneous listings common to the BAPCO and Donnelley directories. From the process by which Donnelley prepared its competitive yellow pages directory, the district court identified three acts of copying: (1) the entry of subscriber information into the computer data base by ACS; (2) the printout of sales lead sheets from this data base; and (3) the publication of Donnelley's directory. Based on these acts of copying, the court granted BAPCO's motion for summary judgment on its copyright infringement claims.5 Donnelley appealed the district court's resolution of the parties' motions on the copyright claim.6III. DISCUSSION

A. Feist Publications and the Requirement of Originality

In Feist Publications, the Supreme Court clarified the scope of copyright protection afforded to factual compilations. Rural Telephone Service Company ("Rural") claimed that Feist Publications, Inc. ("Feist") infringed Rural's copyright by using names and telephone number listings from Rural's white pages directory to compile its own white pages directory. Observing the inherent tension between the axiom of copyright law that facts are not copyrightable7 and the principle that compilations of fact generally are copyrightable, the Court identified those components of a factual compilation that may receive copyright protection under certain circumstances. 499 U.S. at ----, 111 S.Ct. at 1287.

The Court stressed that "[t]he sine qua non of copyright is originality." 499 U.S. at ----, 111 S.Ct. at 1287.8 "Facts, whether alone or as a part of a compilation, are not original and therefore may not be copyrighted." 499 U.S. at ----, 111 S.Ct. at 1290. Drawing upon the requirement of originality and the definition of "compilation" in the Copyright Act,9 the Court held that a compiler's selection, arrangement and coordination, if original, are the only protectable elements of a factual compilation. 499 U.S. at ----, 111 S.Ct. at 1289.10

Applying the requirement of originality to the directory compiled by Rural, the Court noted that the listings, consisting of subscribers' names, towns of residence, and telephone numbers, were uncopyrightable facts. Further, the selection, coordination, and arrangement of Rural's white pages were not sufficiently original to merit copyright protection. "Rural's selection of listings could not be more obvious: it publishes the most basic information--name, town, and telephone number--about each person who applies to it for telephone service." 499 U.S. at ----, 111 S.Ct. at 1296. Rural failed to establish any original elements of coordination or arrangement: "there is nothing remotely creative about arranging names alphabetically in a white pages directory. It is an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course." 499 U.S. at ----, 111 S.Ct. at 1297. In short, "Rural expended sufficient effort to make the white pages directory useful, but insufficient creativity to make it original." 499 U.S. at ----, 111 S.Ct. at 1296.

To establish its claim of copyright infringement, BAPCO must prove "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." 499 U.S. at ----, 111 S.Ct. at 1296. The validity of BAPCO's copyright in its directory, considered as a whole, was conceded by Donnelley.11 To demonstrate the second element of infringement, BAPCO must prove that Donnelley, by taking the material it copied from the BAPCO directory, appropriated BAPCO's original selection, coordination or arrangement.

The district court found that BAPCO engaged in a number of acts of selection in compiling its listings. For example, BAPCO determined the geographic scope of its directory and the closing date after which no changes in listings would be included. BellSouth, 719 F.Supp. at 1557-58. The district court erred, however, in implicitly determining that these selective acts were sufficiently original to merit copyright protection. Rural obviously established a geographic scope and a closing date for its white pages, which were held uncopyrightable as a matter of law in Feist. The district court's analysis would protect such factual elements of every compilation; any collection of facts "fixed in any tangible medium of expression"12 will by necessity have a closing date and, where applicable, a geographic limit selected by the compiler. The district court found that BAPCO "selected" its listings by requiring its yellow pages subscribers to use a business telephone service. Id. at 1557. The district court also focused on a number of marketing techniques employed by BAPCO to generate its listings, such as the determination of the number of free listings offered to each subscriber, the selection of which customers to contact by an on-premise visit from sales personnel, the selection of the date of commencement of its advertisement sales campaign, and the procedure used to recommend the purchase of listings under multiple headings. Id. at 1557. The district court again failed to consider whether these "acts of selection" met the level of originality required to extend the protection of copyright to BAPCO's selection.

More fundamental, these acts are not acts of authorship, but techniques for the discovery of facts. In Feist, the Court emphasized the distinction "between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence." 499 U.S. at ----, 111 S.Ct. at 1288. By employing its sales strategies, BAPCO discovered that certain subscribers describe their businesses in a particular fashion and were willing to pay for a certain number of listings under certain available business descriptions. To be sure, BAPCO employed a set of strategies or techniques for discovering this data. Any useful collection of facts, however, will be structured by a number of decisions regarding the optimal manner in which to collect the pertinent data in the most efficient and accurate manner. If this were sufficient, then the protection of copyright would extend to census data, cited in Feist as a paradigmatic example of a work that lacks the requisite originality. 499 U.S. at ----, 111 S.Ct. at 1288. Just as the Copyright Act does not protect "industrious collection," it affords no shelter to the resourceful, efficient, or creative collector. See Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1372 (5th Cir. July 1981) ("The valuable distinction in copyright law between facts and the expression of facts cannot be maintained if research is held to be copyrightable."). The protection of copyright must inhere in a creatively original selection of facts to be reported and not in the creative means used to discover those facts. See 17 U.S.C. § 102(b) ("In no case does copyright protection ... 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."). Ultimately, the district court erred by extending copyright protection to the collection of facts in the BAPCO directory based on the uncopyrightable formative acts used to generate those listings.

In addition to these acts of selection, the district court found that BAPCO engaged in feats of coordination and arrangement to generate its yellow pages directory. The court explains that BAPCO arranged its directory in an alphabetized list of business types, with individual businesses listed in alphabetical order under the applicable headings. The Copyright Act protects "original works of authorship." 17 U.S.C. § 102(a). BAPCO's arrangement and coordination is "entirely typical" for a business directory. Feist, 499 U.S. at ----, 111 S.Ct. at 1296.13 With respect to business telephone directories, such an arrangement "is not only unoriginal, it is practically inevitable." 499 U.S. at ----, 111 S.Ct. at 1297.

BAPCO's claim of copyright in the arrangement of its directory also does not survive application of the "merger" doctrine. Under the merger doctrine, "expression is not protected in those instances 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." Kregos v. Associated Press, 937 F.2d 700, 705 (2d Cir.1991);14 see also Baker v. Selden, 101 U.S. (11 Otto) 99, 25 L.Ed. 841 (1879). Because this is the one way to construct a useful business directory, the arrangement has "merged" with the idea of a business directory, and thus is uncopyrightable.15

The district court's suggestion that BAPCO could have arranged its headings according to the number of advertisers or to list its subscribers under each heading according to the length of time for which that subscriber had appeared under that heading misapprehends the question. The relevant inquiry is not whether there is some imaginable, although manifestly less useful, method of arranging business telephone listings. In Feist, Rural could have published multiple directories for its service area or listed its numbers in numerical order, by age, or by neighborhood within a single directory. The pertinent inquiry is whether the compiler has demonstrated originality, the "sine qua non " of copyright, in its arrangement or coordination. The arrangement of BAPCO's yellow pages, like that of Rural's white pages is "entirely typical" of its respective type.

The district court also identified acts of coordination and arrangement in the particular system of headings used in the BAPCO directory. The district court appears to find that, when Donnelley entered the listing information from the BAPCO directory, it also copied the particular heading under which that listing appeared in the BAPCO directory. 719 F.Supp. at 1558-59.16 BAPCO, however, failed to introduce evidence sufficient to establish a genuine dispute of material fact as to whether Donnelley copied the particular heading structure employed by BAPCO. Donnelley stipulated that it obtained the "business type" for each listing from the BAPCO directory. R1-8. The evidence submitted to the district court in the form of affidavit, deposition, and witness testimony reveals that Donnelley established its own system of headings and that, in constructing its data base, Donnelley entered an alphanumeric code that corresponded to the Donnelley heading with each BAPCO listing. 5SR2, at 183-85; 1SR-434, at 76-77, 143-44; 1SR-435, at 253-54 and Ex. 278; Deposition of John Notestein, at 10, 12, 14-15, 22. Further, the sales lead sheets generated by Donnelley from its database, as well as pages of the respective directories submitted to the district court, illustrate that Donnelley selected a somewhat different category of headings to describe the listings originally appearing in the BAPCO directory.17 Considering the extent to which the heading structure of a classified business directory is dictated by functional considerations and common industry practice, the differences apparent in the glossary of headings employed by Donnelley are sufficient to rebut any inference of copying that otherwise might be drawn from those terms that are common to both directories.18 In sum, the evidence before the district court requires the conclusion that, by determining the type of business of each subscriber by observation of the BAPCO directory and translating that business type into an encoded heading of its own creation, Donnelley extracted uncopyrightable information regarding the business activities of BAPCO's subscribers without appropriating any arguably original, protectable expressive element in the BAPCO glossary of headings.

Additionally, BAPCO failed to present evidence that, even if copied, its heading structure constitutes original expression warranting copyright protection. Initially, many of the selected headings, for example "Attorneys" or "Banks," represent such an obvious label for the entities appearing under these headings as to lack the requisite originality for copyright protection.19 BAPCO can claim no copyright in the idea of dividing churches by denomination or attorneys by area of specialty. Further, any expressive act in including a category such as "Banks" or in dividing "Attorneys" into categories such as "Bankruptcy" or "Criminal Law" would lose copyright protection because it would merge with the idea of listing such entities as a class of businesses in a business directory.20 The evidence submitted by Donnelley also establishes that many of BAPCO's headings result from certain standard industry practices, such as the recommendations of the National Yellow Pages Sales Association, with regard to the selection and phrasing of headings in business directories. Finally, as established by the testimony of BAPCO's representatives, the ultimate appearance of a particular subscriber under a certain heading is determined by the subscriber's willingness to purchase those listings in the BAPCO directory. While BAPCO may select the headings that are offered to the subscriber, it is the subscriber who selects from those alternatives the headings under which the subscriber will appear in the copyrighted directory. The headings that actually appear in the directory thus, do not owe their origin to BAPCO and BAPCO has claimed no copyright in the larger universe of headings that are offered to subscribers. Thus, the elements of selection, coordination and arrangement identified by the district court, and purportedly copied by Donnelley, as a matter of law, do not display the originality required to merit copyright protection.

Although purporting to consider whether Donnelley copied the original elements of selection, arrangement or coordination from the BAPCO directory, the opinion of the district court rests, at least in part, on a comparison of the appearance of corresponding pages from both directories.21 For example, the court concluded that "Donnelley used a format nearly identical to that used by BAPCO" and that "although Donnelley's directory is not identical to BAPCO's directory, the material was copied and used to produce a directory substantially similar in both content and format." 719 F.Supp. at 1559. The district court erred, however, by failing to consider the degree to which the similarity between the two directories was because of Donnelley's use of the uncopyrightable facts, such as name, number, address, and business type, from the BAPCO directory. Further, to the extent that this similarity of format resulted from was due to the common arrangement and coordination of the two directories into alphabetized business classifications, with alphabetized listings under each classification, the district court erred by extending the scope of BAPCO's copyright to capture the system of organization common to all classified directories in the public domain. Moreover, the other elements of format common to the two directories, such as the organization of listings into four columns, are also manifestly typical, obvious and unoriginal.

By comparing the overall appearance of the two directories through its comparison of the corresponding pages, the district court effectively failed to consider whether Donnelley copied the "constituent elements of the work that are original." Feist, 499 U.S. at ----, 111 S.Ct. at 1296. In the case of a factual compilation, a comparison of the copyright holder's work with that of the alleged infringer must distinguish similarities attributable to ideas, which are unprotected per se, or to expression not owned by the copyright holder, from those similarities resulting from the copying of the compiler's original elements.22 We consider this conclusion to be compelled by section 103(b) of the Copyright Act, which directs that "[t]he copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material." 17 U.S.C. § 103(b).

We note that Donnelley did not copy, nor was alleged to have copied, the text or graphic material from the advertisements in the BAPCO directory, the positioning of these advertisements, the typeface, or the textual material included by BAPCO to assist the user. Unlike the infringer in Southern Bell Tel. & Tel. Co. v. Associated Tel. Directory Publishers, 756 F.2d 801 (11th Cir.1985), Donnelley did not photocopy, or reproduce by any equivalent means, the page by page arrangement or appearance of its competitor's directory in the process of creating its own work. Although the amount of material taken from the BAPCO directory was substantial in a purely quantitative sense, Donnelley did not, by this process, appropriate whatever original elements might arguably inhere in the BAPCO directory. Given that the copyright protection of a factual compilation is "thin," a competitor's taking the bulk of the factual material from a preexisting compilation without infringement of the author's copyright is not surprising. Feist, 499 U.S. at ----, 111 S.Ct. at 1289. While it may seem unfair for a compiler's labor to be used by a competitor without compensation, the Court noted in Feist that "[t]he primary objective of copyright is not to reward the labor of authors, but '[t]o promote the Progress of Science and useful Arts.' " 499 U.S. at ----, 111 S.Ct. at 1290 (quoting U.S. Const. art. I, § 8, cl. 8). "To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work." Id. (emphasis added); see also Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539, 545-46, 105 S.Ct. 2218, 2223, 85 L.Ed.2d 588 (1985).

By copying the name, address, telephone number, business type, and unit of advertisement purchased for each listing in the BAPCO directory,23 Donnelley copied no original element of selection, coordination or arrangement; Donnelley thus was entitled to summary judgment on BAPCO's claim of copyright infringement.24 We REVERSE the judgment of the district court granting summary judgment to BAPCO on its claim of copyright infringement and enter judgment in favor of Donnelley on this claim.APPENDIX A

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLEAPPENDIX B

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLEAPPENDIX C

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLENOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLEHATCHETT, Circuit Judge, dissenting:

The majority's holding establishes a rule of law that transforms the multi-billion dollar classified publishing industry from a business requiring the production of a useful directory based on multiple layers of creative decision-making, into a business requiring no more than a successful race to a data processing agency to copy another publisher's copyrighted work-product. In reaching this incredible result, the majority forsakes thoughtful analysis of the evidence under the governing principles articulated in Feist, and leaps to a conclusion based on nothing more than its collective judgment of what ought to be copyrightable.

Not only does the majority ignore the evidence presented in the district court, but it also allows the appellant to obtain an outright reversal of the district court with new arguments and supplemental evidence that the district court never considered. In doing so, the majority transforms this en banc appellate court into no more than a multiple judge trial court that allows unsuccessful litigants to have the proverbial 'second bite at the apple.' I cannot join the majority in its disregard for the well-established parameters of appellate review; thus, I respectfully dissent.1

In order to prevail on a claim of copyright infringement, a plaintiff must prove two elements: (1) that the plaintiff owns a valid copyright in the work; and (2) that the defendant copied "constituent elements of the work that are original." Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, ----, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358, 379 (1991). Donnelley Information Publishing, Inc. and Reuben H. Donnelley Corporation (collectively "Donnelley") concedes that Bellsouth Advertising & Publishing Corporation ("BAPCO") possesses a valid compilation copyright in the 1984 Greater Miami Yellow Pages (1984 Yellow Pages ), taken as a whole. Donnelley also stipulated that it copied the following information from the 1984 Yellow Pages in preparing its "sales lead" sheets: "1. telephone number--under the first column; 2. name--under the second column; 3. address--under the third column; 4. kind of business--under the fourth column; and 5. unit of advertising--under the fifth column." Therefore, based on Donnelley's concessions that BAPCO possesses a valid copyright and its stipulation to copying information from the 1984 Yellow Pages, this court is only asked to determine whether Donnelley substantially copied constituent elements of the 1984 Yellow Pages that are original.

It is settled that compilations of facts are copyrightable, even though the facts themselves are not subject to copyright protection. Feist Publications, 499 U.S. at ----, 111 S.Ct. at 1287, 113 L.Ed.2d at 368 (discussing the inherent tension between these well-established propositions). The Copyright Act of 1976 defines a copyrightable compilation as "a work formed by the collection and assembly of preexisting materials or 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 (1988). Therefore, section 101 identifies three requirements for a compilation to qualify for copyright protection: "(1) the collection and assembly of preexisting material, facts, or data; (2) the selection, coordination, or arrangement of those materials; and (3) the creation, by virtue of the particular selection, coordination, or arrangement, of an 'original' work of authorship." Feist, 499 U.S. at ----, 111 S.Ct. at 1293, 113 L.Ed.2d at 376.

The Court in Feist noted that the "selection, coordination, or arrangement" requirement is the key to determining whether a work qualifies as a copyrightable compilation. See Feist, 499 U.S. at ----, 111 S.Ct. at 1294, 113 L.Ed.2d at 377 (explaining that "facts are never original, so the compilation author can claim originality, if at all, only in the way that the facts are presented"). The Court in Feist emphasized that "the originality requirement is not particularly stringent." See Feist, 499 U.S. at ----, 111 S.Ct. at 1294, 113 L.Ed.2d at 377 (explaining that originality means only that a compiler selects or arranges independently and displays some minimal level of creativity, even if the compiler settles upon a selection or arrangement that others have used). In addition, the Court in Feist noted that a copyrightable compilation is protected only to the extent of the author's "original" selection, coordination, or arrangement. See Feist, 499 U.S. at ----, 111 S.Ct. at 1295, 113 L.Ed.2d at 378. Accordingly, this court must first determine what particular elements of BAPCO's selection, coordination, and arrangement of preexisting facts in the 1984 Yellow Pages are sufficiently original to merit copyright protection.

II. Original Selection, Coordination, or Arrangement

Based on the undisputed facts, the district court concluded that BAPCO performed the following acts of selection, coordination, or arrangement, which were sufficiently original to merit copyright protection: (1) the selection of the geographic scope of businesses to be covered in the directory; (2) the selection of the number of free listings for businesses in the covered area; (3) the selection of only businesses with business telephone service for advertisements in the directory; (4) the selection of a menu of classified headings that would be available for business listings; (5) the selection of the criteria for determining whether a business may advertise under a particular classified heading; (6) the selection of the classified headings that would be recommended to a particular business customer; (7) the selection of customers who would receive on-premise sales contact, telephone sales contact, or no contact; (8) the selection of the dates for the beginning and closing of the sales campaign for advertisements in the directory; and (9) the arrangement of all of the business listings under a particular heading, in alphabetical order. See BellSouth Advertising & Publishing Corp. v. Donnelley Information Publishing, Inc., 719 F.Supp. 1551, 1557-58 (S.D.Fla.1988).

The panel agreed that the 1984 Yellow Pages constituted a copyrightable compilation, identifying the following acts of selection, coordination, or arrangement as sufficiently original: (1) selection of the geographic scope of businesses to be included in the directory; (2) selection of a directory close date as a limit on modifications that would be reflected in a pending directory publication; (3) the creation or selection of numerous classified headings that would be available for business listings; (4) the coordination of all the informational components--name, address, and telephone number--of a particular business into one complete business listing; and (5) the arrangement of all coordinated business listings under the appropriate classified headings. See Bellsouth Advertising & Publishing Corp. v. Donnelley Information Publishing, Inc., 933 F.2d 952, 957-58 (11th Cir.1991), vacated and reh'g en banc granted, 977 F.2d 1435 (11th Cir.1992).

Donnelley challenges the district court's and panel's holding that BAPCO performed sufficiently original acts of selection, coordination, or arrangement to merit copyright protection for the 1984 Yellow Pages. Donnelley argues that the district court erred in identifying BAPCO's alphabetizing of the listings and