COPYRIGHT PROTECTION

The district court held that the MMPI test statements could be copyrighted. The test statements are for the most part short, simple, declarative sentences, such as “I am a good mixer.” and “No one seems to understand me.” The district court held that the authors had used sufficient creativity and originality in drafting the test statements or in revising the questions and statements used in earlier psychometric tests. The district court further held that the testing data (scale membership, scoring directions, t-scores) could be copyrighted as the expressions of discovered scientific facts or processes. Plaintiffs do not claim copyright interests in their research per se; in fact, plaintiffs acknowledge that other researchers have used their MMPI research to develop other psychometric tests. The district court found that although the authors used statistical rules and algebraic formulas in developing their testing data, they selected particular formulas and then, on the basis of their clinical experience and expertise, adjusted the results they had obtained by applying those formulas.

Defendant argues the district court erred in holding that the MMPI test statements and testing data could be copyrighted. Defendant argues the test statements cannot be copyrighted because they are “short phrases” within the meaning of 37 C.F.R. ? 202.1(a) and because they are derivative works that do not contain any variation recognizable as that of the authors and therefore lack the requisite “originality.” Defendant also argues the testing data (scale membership, scoring directions, t-scores) cannot be copyrighted because they constitute non-copyrightable facts or processes. In particular, defendant argues that the t-scores represent an attempt to copyright an algebraic formula.

Computer programs may be protected by copyright. E.g., Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222, 1233 (3d Cir. 1986) (Whelan) (overall structure, sequence and organization of computer software), cert. denied, 479 U.S. 1031, 93 L. Ed. 2d 831, 107 S. Ct. 877 (1987); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1246-47 (3d Cir. 1983) (computer object and source code), cert. dismissed, 464 U.S. 1033, 104 S. Ct. 690, 79 L. Ed. 2d 158 (1984). Defendant’s personal computer-based software, MMPI Scoring Program I and II, duplicated first NCS’s in-house computerized MMPI scoring and interpreting services and then NCS’s own personal computer-based MMPI software, Microtest. Because we have already determined that plaintiffs owned the MMPI copyrights and it is not disputed that defendant’s software copied at least some of the test statements (only MMPI Scoring Program I) and all the testing data needed to score and interpret the MMPI (both MMPI Scoring Program I and II), we are concerned only with whether the test statements and testing data are per se uncopyrightable.

Defendant’s first argument is that the test statements are not copyrightable because they lack originality.

The standard for “originality” is minimal. It is not necessary that the work be novel or unique, but only that the work have its origin with the author — that it be independently created. Little more is involved in this requirement than a “prohibition of actual copying.”

To be the original work of an author, a work must be the product of some “creative intellectual or aesthetic labor.” However, “a very slight degree of such labor[,] . . . almost any ingenuity in selection, combination or expression, no matter how crude, humble or obvious, will be sufficient” to make the work copyrightable.

West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219, 1223 (8th Cir. 1986) (West) (citations omitted) (1976 Act; page numbering due to publisher’s arrangement of opinions in reporters), cert. denied, 479 U.S. 1070, 107 S. Ct. 962, 93 L. Ed. 2d 1010 (1987).

The test statements are short, simple, declarative sentences, but they are not merely fragmentary words and phrases within the meaning of 37 C.F.R. ? 202.1(a). They are not names or titles or slogans.

We think the test statements satisfy the minimal standard for original works of authorship within the meaning of the copyright laws, at least within the context of the administration of the MMPI. Clearly, the test statements that Hathaway and McKinley, and their university colleagues, independently created meet the originality standard. Rubin v. Boston Magazine Co., 645 F.2d 80, 83 (1st Cir. 1981) (particular questions about love and romance held copyrightable as original forms of expression); cf. Educational Testing Services v. Katzman, 793 F.2d 533, 539 (3d Cir. 1986) (questions in scholastic aptitude and achievement tests); Association of American Medical Colleges v. Mikaelian, 571 F. Supp. 144, 150 (E.D.Pa. 1983) (questions in medical school admission test), aff’d without opinion, 734 F.2d 3 (3d Cir. 1984); National Conference of Bar Examiners v. Multistate Legal Studies, Inc., 495 F. Supp. 34, 36 (N.D.Ill. 1980) (questions in bar exam), aff’d in partrev’d in part, 692 F.2d 478, 216 U.S.P.Q. (BNA) 279 (7th Cir. 1982), [**31] cert. denied, 464 U.S. 814, 104 S. Ct. 69, 78 L. Ed. 2d 83, 220 U.S.P.Q. (BNA) 480 (1983).

We also think the test statements that are revisions of the questions in pre-existing psychometric tests represent “distinguishable” variations of the prior works. 1 Nimmer ?? 2.01[b], 3.01, 3.03. The revisions are recognizable as the work of the authors and thus are sufficiently original to warrant copyright protection as derivative works. See Toro Co. v. R & R Products Co., 787 F.2d 1208, 1213 (8th Cir. 1986) (citations omitted); see generally 1 Nimmer ? 3.04.

Defendant’s second argument is that the test statements and testing data cannot be copyrighted because they are facts or methods or processes for discovering facts. Plaintiffs do not claim copyright protection for the MMPI research in itself, that is, the fact that there is a correlation between certain responses to certain test statements and particular psychological traits or characteristics. What they do claim is protected by copyright are the specific testing data developed by Hathaway and McKinley and their university colleagues to measure and evaluate this correlation. In other words, plaintiffs argue the MMPI testing data are copyrightable as expressions of facts or processes.

Copyright protection does not extend to ideas or facts in published works. E.g., Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 547, 105 S. Ct. 2218, 85 L. Ed. 2d 588 (1985) (Harper & Row); Worth v. Selchow & Righter Co., 827 F.2d 569, 572 (9th Cir. 1987) (Worth) (works on trivia), cert. denied, 485 U.S. 977, 108 S. Ct. 1271, 99 L. Ed. 2d 482 (1988); Frybarger v. International Business Machines Corp., 812 F.2d 525, 529 (9th Cir. 1987) (Frybarger) (video games). “discovery of a fact, regardless of the quantum of labor and expense, is simply not the work of an author.” 1 Nimmer ? 2.11[E], at 2-169 to -170. “The copyright is limited to those aspects of the work — termed ‘expression’ — that display the stamp of the author’s originality.” Harper & Row, 471 U.S. at 547. This is particularly true of factual works. “Because authors who wish to express ideas in factual works are usually confined to a ‘narrow range of expression . . ., similarity of expression may have to amount to verbatim reproduction or very close paraphrasing before a factual work will be deemed infringed.'” Worth, 827 F.2d at 572, citing Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485, 488 (9th Cir.), cert. denied, 469 U.S. 1037, 83 L. Ed. 2d 403, 105 S. Ct. 513 (1984); see also Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977) (abstracts of financial reports), cert. denied, 434 U.S. 1014, 54 L. Ed. 2d 759, 98 S. Ct. 730 (1978); Toro Co. v. R & R Products Co., 787 F.2d at 1211-12 (parts numbers).

This is a close question. We think the MMPI testing data are copyrightable as expressions of facts or processes. Our conclusion is expressly based upon the district court’s findings of fact about the methods the authors used to develop the MMPI testing data. The district court found that although the authors began with certain discovered facts, statistical models and mathematical principles, which cannot be copyrighted, they then made certain adjustments on the basis of their expertise and clinical experience. In other words, the MMPI testing data, at least for purposes of analysis under the copyright law, do not represent pure statements of fact or psychological theory; they are instead original expressions of those facts or processes as applied and as such are copyrightable. Rubin v. Boston Magazine Co., 645 F.2d at 83; see generally 1 Nimmer ? 2.03[E], 2.11.

On cross-appeal plaintiffs argue the district court erred in holding that the social introversion and correction (K) scales and the correlation or conversion tables are copyrighted only as compilations. We disagree. “If the underlying work is in the public domain, a copyright in the derivative work will not render the underlying work protectible.” 1 Nimmer ? 3.04, at 3-16 to -16.1 (footnote omitted). Plaintiffs conceded at trial that the social introversion and correction (K) scales in the card format were in the public domain, apparently because these materials were first published in the Journal of Applied Psychology under a copyright notice in the name of the publisher and the publisher of that periodical failed to renew the copyright. Under these circumstances, the district court correctly extended copyright protection only to the revised formats of these materials as they appeared in the 1960 MMPI Handbook or in other copyrighted publications.