The Genius in Yumbulul and Feist

The cases of Yumbulul v. Reserve Bank of Australia and Feist Publications v. Rural Telephone Service Co are good examples of the romantic ideal of authorship use in legal proceedings. Terry Yumbulul, an Aboriginal artist and craftsman, designs and paints Morning Star Poles. In 1987, the Reserve Bank of Australia sought a design for a $10 note. Anthony Wallis, a "former director of Aboriginal Artists Agency Limited" (7), who, since 1985, assisted the bank in finding "suitable Aboriginal artwork for use in the design" (11). Mr. Wallis made arrangements with Mr. Yumbulul, wherein Yumbulul signed forms that permitted the use and reproduction of his Morning Pole design. Yet, Yumbulul claimed he did not understand the terms of the agreement, in which "permission only went to a certain point or limit. The limit was defined in his own mind by reference to the sacred nature of the objects in question" (18). Yumbulul sued Mr. Wallis in order to reclaim the copyright to his own work.
Yumbulul's lawsuit against Mr. Wallis was the result of criticism from the Aboriginal community, which condemned the use of cultural icons for non-educational and non-ceremonial purposes. During the proceedings, the court considered the larger question concerning Australia's copyright law, which "does not provide adequate recognition of Aboriginal community claims to regulate the reproduction and use of works which are essentially communal in origin" (21). The judge favored Yumbulul's position and wrote the following in the conclusion of the case:
. . . some Aboriginal artists have laboured under a serious misapprehension as to the effect of public display upon their copyright in certain classes of works. This question and the question of sacred objects is a matter for consideration by law reformers and legislators. For what it is worth, I would add that it would be most unfortunate if Mr. Yumbulul were to be the subject of continued criticism within the Aboriginal community for allowing the reproduction of the Morning Star Pole design on the commemorative banknote. The reproduction was, and should be seen, as a mark of the high respect that has all too slowly developed in Australian society for the beauty and richness of Aboriginal culture (24).

Feist Publications, Inc. is a publishing company producing area-wide telephone directories. In order to compile the area wide telephone numbers, Feist contacted 11 telephone companies in Northwestern Kansas to license their listings. Of the 11 companies, only one company refused. Rural Telephone Service Company is a certified public utility operating under monopoly franchise. Under Kansas State Law, Rural must publish a telephone directory. Rather than have incomplete directory, Feist used Rural's white page listings without consent. Unknown to Feist, Rural telephone had inserted fictitious listings to detect copying. Rural sued for copy-right infringement in the District Court of Kansas.
In 1991, Feist and Rural argued their case in front of the United States Supreme Court. The case concerns two established legal propositions. First that facts are not copyrightable. Second that the compilation of facts generally is protected by copyright. Although Rural had put some effort in compiling its telephone directory, the court ruled in favor of Feist. According to the courts decision, Rural's telephone directory was not protected by copyright because it lacked originality. Essentially, the court found that no creativity was used in its creation. Rural attempted to copyright facts, and by listing its telephone directory in alphabetical order, lacked the spark of creativity necessary for copyright.
Although these cases may seem quite distinct, both provide examples of the romantic ideal of authorship as it appears in legal proceedings. In the case of Yumbulul v. Reserve Bank of Australia, the rhetoric points to the genius of Mr. Yumbulul:
I accept the description in Mr. Yumbulul's affidavit evidence, which says that the feather work on the pole is intricate, and the design complex and unique to him. I also accept his affidavit evidence . . . that he made the pole without assistance from any other person and that its creation was the subject of considerable care and attention on his part. In the sense relevant to the Copyright Act, there is no doubt that the pole was an original artistic work, and that he was its author, in whom copyright subsisted.

The judge however admits:

it may also be that Australia's copyright law does not provide adequate recognition of Aboriginal community claims to regulate the reproduction and use of works which are essentially communal in origin

Mr. Yumbulul is essentially shoehorned into Austrailian copyright protection through the romantic ideal of authorship.
In the case of Feist Publications v. Rural Telephone Service Co, the creative spark of genius was missing:
Certainly, the raw data does not satify the originality requirement. Rural may have been the first to discover and report the names, towns, and telephone numbers of its subscribers, but this data does not "owe its origin" to Rural. Rather, these bits of information are uncopyrightable facts; they existed before Rural reported them and would have continued to exist if Rural had never published a telephone directory. . . Nor can Rural claim originality in its coordination and aqrrangement of facts. The white pages do nothing more than list Rural's subscribers in alphabetical order . . . 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 . . . It is not only unoriginal, it is practically inevitable. This time-honored tradition does not possess the minimal creative spark required by the Copyright Act and the Constitution.

Because genius and the creative spark are absent, Rural does not warrant protection. The purpose of this section is not to critic the decisions of the cases, but merely show how the genius and copyright work there way into legal rhetoric.

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