                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-3939
                                   ___________

Schoolhouse, Inc.,                   *
                                     *
            Appellant,               *
                                     *
      v.                             * Appeal from the United States
                                     * District Court for the
Jeff Anderson; Margaret Richardson   * District of Minnesota
d/b/a Market Solutions,              *
                                     *
            Appellees.               *
                                ___________

                             Submitted: October 15, 2001

                                 Filed: January 4, 2002
                                  ___________

Before WOLLMAN, Chief Judge, LAY and RILEY, Circuit Judges.
                             ___________

RILEY, Circuit Judge.

      The parties to this lawsuit publish information about schools in and around
Minneapolis and St. Paul, Minnesota. The plaintiff, Schoolhouse, Inc. (Schoolhouse),
publishes its information in a magazine. The principal defendant, Jeff Anderson,
posts his information on an internet website. Schoolhouse alleges that Anderson
created his website by copying the selection and the arrangement of topics in
Schoolhouse's magazine. The district court1 granted summary judgment in favor of
Anderson, and Schoolhouse appeals. We affirm.

I.    BACKGROUND
      Schoolhouse publishes an annual magazine marketed to prospective home
buyers in Minneapolis, St. Paul, and the surrounding area. Schoolhouse distributes
its magazine through local real estate agents. In addition to articles, the magazine
features tables of information on area public and private schools. This appeal
involves the table of information on public schools in the 1996 edition of
Schoolhouse's magazine.

       Schoolhouse's table organizes and reports information by topic. School
districts are listed alphabetically in a column at the left-hand side of the table. Topic
headings are listed in a row across the top of the table. There are many topics in the
Schoolhouse table. Some, such as "Bachelor," "Masters," and "Doctorate" describe
the academic degrees attained by staff members. Others, such as "French," "Spanish,"
and "German," describe particular classes schools may offer. The substantive content
of the table is information listed under these topics, for example, the number of staff
members with particular degrees and whether a school offers particular courses.

      Schoolhouse arranges its topics in various ways. Most broadly, Schoolhouse
divides its topics into two categories, "Athletic" and "Characteristic," and places
those categories in separate sub-tables. The seventeen "Athletic" topics list all the
sports that local schools generally offer. The remaining "Characteristic" topics
describe information about students, teachers, classes, school facilities, and school
services. Within the Schoolhouse table, "Characteristic" topics are often grouped
according to their general subject matter. For example, the topics "French,"
"Spanish," and "German," along with other course titles, are arranged in the group
"Classes Offered."


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

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       Jeff Anderson, a Twin Cities real estate agent, also organizes and lists
information on local schools. Anderson compiles and publishes his information on
an internet website, which he designed with the help of Margaret Richardson. Unlike
Schoolhouse, Anderson does not publish information on all area schools in a single
table. Instead, Anderson's website provides a list of school districts with links to
information on each school. When an internet user clicks on a school district, the
website takes the user to a page of information Anderson has compiled exclusively
on that district.

       The pages of information on Anderson's website do not consist solely of tables.
Each page does include a table of information on "School Statistics" – statistics on
school population, accreditation, pupil/staff ratio, and pupil/computer ratio at various
schools in the district. On the rest of each page, however, topics are broken down into
groups and each group of topics is displayed in a separate row. For example, there
is a row of information on "Certified Staff," a row on "Classes Offered," and a row
of "Miscellaneous" information. "Athletic" information is listed in this same format
on the same page as non-athletic data.

       Schoolhouse's table and Anderson's website cover many of the same topics.
For example, both provide information on the population of school districts and
schools, on the availability of services like busing and hot lunch, on staff credentials
and certification, on classes offered, and on student test scores. Many of the topics
within these general groups – such as whether a school offers a particular foreign
language – appear both in the Schoolhouse table and on Anderson's website. Viewed
in the light most favorable to Schoolhouse, the 64 topics covered by Anderson's
website include 56 of the 76 topics listed in the Schoolhouse table.

       Schoolhouse filed this lawsuit alleging copyright infringement, unfair business
practices, and unfair competition. The district court granted summary judgment to
Anderson on Schoolhouse's copyright infringement claim and dismissed
Schoolhouse's state-law claims without prejudice. Schoolhouse now appeals the
grant of summary judgment on its copyright infringement claim, arguing that there


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was a genuine issue of material fact as to whether the two works are substantially
similar.

II.    DISCUSSION
       We review a district court's grant of summary judgment de novo, using the
same standards applied by the district court. Iowa Coal Min. Co. v. Monroe County,
Iowa, 257 F.3d 846, 852 (8th Cir. 2001). Under Rule 56(c) of the Federal Rules of
Civil Procedure, summary judgment is appropriate if the evidence, viewed in the light
most favorable to the nonmoving party, demonstrates that there is no genuine issue
of material fact and that the moving party is entitled to judgment as a matter of law.
Id. In a copyright infringement case, where both works are in the record, a trial court
has sufficient evidence to enter summary judgment. Nelson v. PRN Prods., Inc., 873
F.2d 1141, 1143 (8th Cir. 1989).

       Schoolhouse's table on public schools is a factual compilation. Under the law
of copyright, a compilation is a work formed by selecting or arranging preexisting
data "in such a way that the resulting work as a whole constitutes an original work of
authorship." 17 U.S.C. § 101. Because copyright law protects only expression, and
not ideas or facts, copyright protection for a factual compilation is "thin." Feist
Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991). As applied to a
factual compilation, copyright law protects an author's original selection and
arrangement of facts, but the facts and ideas within the compilation are free for the
taking. Id. at 348-49.

       Anderson concedes that Schoolhouse has a valid copyright in its table. To
establish a violation of its copyright, Schoolhouse must prove that Anderson had
access to its table and that there is substantial similarity, both in ideas and expression,
between the original elements of its table and Anderson's website. See Hartman v.
Hallmark Cards, Inc., 833 F.2d 117, 120 (8th Cir. 1987). Because Anderson
concedes that he had access to Schoolhouse's table, the only issue in dispute is
whether Anderson's website bears substantial similarity to the original selection and
arrangement of topics in Schoolhouse's table.


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      In Hartman we adopted a two-step analysis for determining whether works are
substantially similar. Pursuant to this analysis, we must first analyze the similarity
of ideas extrinsically, focusing on any objective similarities in the details of the
works. Id. If the ideas behind the works are substantially similar, we must then
evaluate similarity of expression intrinsically, according to the response of the
ordinary, reasonable person. Id. When applying the second step of the analysis,
summary judgment is proper if ordinary, reasonable minds could not find the works
substantially similar. Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939, 945-46
(8th Cir. 1992).

       The district court found that the works reflected in Schoolhouse's table and in
Anderson's website "contain some objective similarities in detail," but the works are
"so dissimilar in expression that reasonable minds could not differ as to the absence
of substantial similarity." Like the district court, we base our decision on the
response that an ordinary, reasonable person would have to the two works.

       Because copyright law affords only "thin" protection to factual compilations,
a competitor may take "the bulk of the factual material from a preexisting
compilation" without infringing the author's copyright. BellSouth Adver. & Publ'g
Corp. v. Donnelly Info. Publ'g, Inc., 999 F.2d 1436, 1445 (11th Cir. 1993) (en banc),
(citing Feist, 499 U.S. at 348-50). To paraphrase one commentator, when it comes
to factual compilations, after Feist, it takes virtually "extensive verbatim copying" to
constitute infringement. See TransWestern Publ'g Co. v. Multimedia Mktg. Assocs.,
Inc., 133 F.3d 773, 776-77 (10th Cir. 1998) (citing Jane C. Ginsburg, No "Sweat"?
Copyright and Other Protection of Works of Information After Feist v. Rural
Telephone, 92 Colum. L. Rev. 338, 349 (1992)). As explained in Feist, this "result
is neither unfair nor unfortunate. It is the means by which copyright advances the
progress of science and art." Feist, 499 U.S. at 350.

       In supporting its infringement claim, Schoolhouse stresses that 56 of the 64
topics on Anderson's website are also in Schoolhouse's table. Although this type of
comparison can be helpful, see Kregos v. Associated Press, 3 F.3d 656, 663-64 (2d


                                          -5-
Cir. 1993), Schoolhouse places too much reliance on it. The ratio used by
Schoolhouse suggests that Anderson obtained many of his topics from Schoolhouse's
table, but it does not establish that Anderson's website is substantially similar to
Schoolhouse's table "as a whole work." A better measure of this relationship is the
ratio of the topics Anderson and Schoolhouse have in common to the total number of
topics in the Schoolhouse table.

       The case law supports using such a comparison. In Key Publications, Inc. v.
Chinatown Today Publishing Enterprises, Inc., 945 F.2d 509 (2d Cir. 1991), the
Second Circuit addressed a copyright dispute involving two competing directories of
Chinese-American businesses, the Key Directory and the Galore Directory. After a
bench trial, the district court found that the Galore Directory infringed on the Key
Directory's copyright. The district court's decision focused on the fact that 1500 of
the 2000 listings in the Galore Directory were identical to listings in the Key
Directory. Id. at 515. Reversing, the Second Circuit looked at the ratios differently,
pointing out that the 1500 identical listings made up only 17% of the 9000 listings in
the larger Key Directory. Id.

       Focusing on how much of Schoolhouse's table has actually been incorporated
into Anderson's website weakens Schoolhouse's infringement claim. Like the
plaintiff in Key Publications, Schoolhouse argues that 56 of the 64 topics in
Anderson's table, or about 87%, are the same as topics in the Schoolhouse table.
Schoolhouse's table, however, contains more topics than Anderson's. When the
number of identical topics is compared against all the topics in Schoolhouse's table,
the ratio of identical topics drops to 56 out of 76, or approximately 74%. The tables
are thus not as similar as the ratio used by Schoolhouse suggests.

       A closer look at the topics themselves reveals that the two works are even less
similar. Similarity in expression cannot be used to show copyright infringement
when there is only one way or only a few ways of expressing an idea. Toro Co. v. R
& R Prods. Co., 787 F.2d 1208, 1212 (8th Cir. 1986). Numerous courts have cited
this principle in denying copyright infringement claims "to prevent an author from


                                         -6-
monopolizing an idea merely by copyrighting a few expressions of it." Id. See, e.g.,
Kregos, 3 F.3d at 664; BellSouth, 999 F.2d at 1442; Matthew Bender & Co. v.
Kluwer Law Book Publishers, Inc., 672 F. Supp. 107, 109-10 (S.D.N.Y. 1987).

       The Second Circuit's decision in Key Publications provides a good example of
this principle as well. After comparing the coverage of the Key Directory and the
Galore Directory, the Second Circuit addressed the reasons for the area of overlap
between the two directories. "There are," it wrote, "a finite number of businesses that
are of special interest to a sizeable segment of the New York Chinese-American
community, and some substantial overlap among classified business directories
compiled for that community is inevitable." Key Publications, 945 F.2d at 516. On
this basis, the court excused the remaining similarity between the two yellow-page
directories. Id.

       A great deal of the overlap between Schoolhouse's table and Anderson's
website is the result of Schoolhouse’s comprehensive approach to reporting data. For
example, the topics in the “Athletic” section of Schoolhouse’s 1996 public schools
table comprise all of the seventeen sports that are generally available in local high
schools. For purposes of compiling such a table, there is nothing original about
simply selecting all of the generally available sports. Similarly, nearly all of the
topics selected by Schoolhouse, such as school district population, number of pupils,
pupil/staff ratio, and particular classes offered, convey facts that parents obviously
consider important in selecting a school for their children. When such topics are
removed from the comparison, it is clear that the selection of topics in Anderson's
website is not substantially similar to the selection of topics in Schoolhouse's table.

       The arrangement of the topics in the two works is not substantially similar
either. As the district court observed, the respective formats of Anderson's website
and Schoolhouse's table are quite dissimilar. It is true that Anderson and
Schoolhouse group many of their topics under similar headings, such as "Classes
Offered" and "Certified Staff." Such headings, however, are obvious labels for these
categories and therefore lack originality. See BellSouth, 999 F.2d at 1444 (yellow-


                                         -7-
page labels such as "Attorneys" and "Banks" were not original). Nor does copyright
law protect Schoolhouse's grouping of individual topics. There is nothing original
about placing "French," "Spanish," and "German" within the category of "Classes
Offered," or the other decisions Schoolhouse made in grouping topics together.

III.   CONCLUSION
       Although there are some objective similarities in the ideas expressed by
Schoolhouse's table and Anderson's website, the two works express their ideas so
differently that ordinary, reasonable minds could not find them substantially similar.
The selection and the arrangement of facts by Schoolhouse in its magazine table are,
as a matter of law, not substantially similar to the selection and the arrangement of
facts on Anderson's internet website. Accordingly, we affirm the judgment of the
district court. In addition, we deny Anderson's request that we sanction Schoolhouse
for allegedly filing a frivolous motion to strike Anderson's brief.

       A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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