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
. . . 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
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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