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Articles

Numerical Valuations: Copyrightable Expression Versus Discovered Fact

June 3, 2013

Articles

Numerical Valuations: Copyrightable Expression Versus Discovered Fact

June 3, 2013

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When one thinks of the various types of works that copyright protects, music, books, and movies immediately come to mind. Numerical estimations, valuations, and forecasts do not. While it has been a little known fact that copyright protects things like numerical valuations and estimates, this knowledge is gradually increasing as the law becomes more defined.

Since the early 1990s, through a steadily growing body of case law, courts have developed an analytical framework for determining when numerical valuations and estimates are protected by copyright. Copyright protection for these types of works, which are often “works made for hire” under the Copyright Act, lasts for at least 95 years. Companies that are aware of how copyright can protect their proprietary projections and forecasts, and use copyright law to do so, can enforce their copyrights against infringers and acquire an arsenal of copyrighted content that its competitors are barred from copying. Today, the types of businesses claiming copyright protection for their numerical estimates and projections range from market research performance publishers like BanxCorp (which publishes banking, mortgage, and loan data, and filed a copyright infringement suit that is currently pending in the District Court of the Southern District of New York), to hospital evaluators and national football scouts.

A bedrock of copyright law is the principle that copyright protects “original works of authorship fixed in any tangible medium of expression.” Copyright protection does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.2 Due to this dichotomy, courts analyzing the copyrightability of certain data want to know whether that data is creative and original, in which case it may be protected by copyright law, or is simply a discovered fact, in which case copyright protection would not apply.

Kristen McCallion, Co-Chair of Fish’s Copyright Group, wrote this article which first published in the New York Law Journal. For the full story, please read, “Numerical Valuations: Copyrightable Expression Versus Discovered Fact.”

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