Copyright Chess positions and GM-Ram

Would there be a legal issue if someone published a book of all the words listed in a OED without their respective definitions (irregardless of the usefulness of such an endeavor)?

Dictionary makers placed nonsense words in their book so that if someone lifted the collection there would be a marker showing the theft, that it just wasn't someone else's idea of a word list.

At least this is what I'd read a few decades ago.

But that's the dictionary in it's entirety.

What if you just use the list of words and none of the definitions?

If they take the whole collection of words, they are infringing the copyright.

Nonsense words like "irregardless," do you mean?

That sounds perfectly cromulent.

That's a bummer.

Hey charlesgalofre! Cover your behind and call Thinker's Press and ask about the legalities.

I'm a lawyer, I deal with copyrights, here's my opinion for what it's worth.

Under U.S. law, chess moves and positions are like phone numbers - they are uncopyrightable facts. 

The Copyright Act of 1976 and its predecessor, the Copyright Act of 1909, leave no doubt that originality is the touchstone of copyright protection in directories and other fact-based works. The 1976 Act explains that copyright extends to “original works of authorship,” 17 U.S.C. § 102(a), and that there can be no copyright in facts, § 102(b).

What we’re talking about here is a compilation.  A compilation is something like a phone book. 

 A compilation is a “work formed by the collection and assembling of preexisting materials ... that are selected, coordinated or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” 17 U.S.C. section 101.  The selection and categorization of the forms are protectable elements of the work.

 A compilation is not copyrightable per se, but is copyrightable only if its facts have been “selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” § 101 (emphasis added). Thus, the statute envisions that some ways of selecting, coordinating, and arranging data are not sufficiently original to trigger copyright protection. Even a compilation that is copyrightable receives only limited protection, for the copyright does not extend to facts contained in the compilation. § 103(b).

So the two pertinent questions are:

1.  is the book copyrightable in the first instance because of the chess positions have been selected and arranged in such a way that the whole work becomes an original work of authorship?  a

and

2. assuming it is an original work of authorship subject to copyright protection, can it be used as the basis for a subsequent work?

Let's assume the answer to the first question is 'yes' (because if the answer is 'no,' then we need look no further). 

So turning to the second question: can you use the facts contained in the author's book to aid in preparing a subsequent work.  To answer that, we head to the U.S. Supreme Court.

The United States Supreme Court in a case called Feist indicated that “notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in an author's publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement.” Feist, 499 U.S. at 349, 111 S.Ct. 1282. Subsequent cases have interpreted Feist to mean that compilation copyright protection is very limited and usually requires substantial verbatim copying. Key Pub'ns v. Chinatown Today, 945 F.2d 509, 514 (2d Cir.1991).  If we're talking percentages of copying, there's a case that held that as much as 3/4 of the workd can hardly be considered infringing. See, e.g., Schoolhouse Inc. v. Anderson, 275 F.3d 726, 729-30 (8th Cir.2002) (holding that a ratio of seventy-four percent of the same items was not substantial similarity in light of Feist ).

So the take away is this, if the book you're talking about reflects a novel and creative way of selecting, arranging and presenting the chess positions in a particular order or through particular categorization then there is a heightened risk that your verbatim copying of the chess positions and placement of them in the exact same order would subject you to potential liability for copying the way that author chose to progressively and categorically present those chess problems.  But if your subsequent arrangement of chess positions were interpolated with other chess positions or presented the chess positions in a different order then you have decreased your risk considerably.

On the other hand, if the book presents the positions alphabetically or chronologically by date of the game played or some other basic, uncreative arrangement, then that author would have a real uphill battle and would be relying almost exclusively on his selection of the positions themselves as the original creative input to generate his copyright, which puts the answer to the first question (is it copyrightable in the first place) at serious issue.

Last thought, anyone can file a lawsuit if they pay the $150 or so filing fee and in this business, as the saying goes, "you may beat the rap, but you can't beat the ride."  So if this is for a commercial venture, or if you're 100% risk adverse, then I would suggest you (a) consult an attorney, and (b) talk to your attorney about seeking permission from the author ahead of time.

If this is for a non-commercial venture (meaning, even the site itself where this computer contraption is going to be kicking around isn't an ad-supported site) then you may have a pure fair use/academic/scholastic type defense.  But the rap/ride maxim still applies.

[the views expressed in this post are purely those of jhbchess and not those of his law firm, this is not legal advice, go get your own lawyer, all rights reserved, all warranties disclaimed, etc]

Where else can you get such feedback from a variety of professions to answer virtually any question under all the possible chess moves in a game other than chess.com?

It does not look that cut and dry to me, but admittedly I have not reviewed the original work nor seen the way in which the original poster intends to transform the work.  If we are searching for a brightline, my thought would be this:

Could OP take the GM-Ram book, reproduce the exact selection and arrangement of the chess positions in PDF form for viewing on a computer with the same analysis as GM-Ram?  I would suggest, no.

Could OP take the chess positions in the GM-Ram book, add to those positions, rearrange the positions in a different sequence, present them in a different medium, include a user-interactive feature (a la chess mentor), provide new analysis or expanded analysis, and interpolate sidelines or other materials?  I would suggest, yes.

The key concepts here are:

1. Copyright protection for compilations is thin, at best.

2. The less similar the expression, the less likely copyright infringement will be found.  (So the more transformative your presentation of the underlying facts are, the better your argument will be that you have not infringed)

3. The more similar (e.g., verbatim) the expression, the more likely copyright infringement will be found.

4. The more comprehensive the underlying compilation is, the less likely it is to receive protection.  (The principle being, when there are a finite number of ways to express an idea, court's will be hesitant to grant an author a monopoly over the expression of those ideas through copyright law.  Example, assembling all the cases showing how to mate with K+R v K reflects a finite number of ways to express that concept).

@jhbchess: I had suggested for an existing book's positions to be chosen and re-arranged as my recommendations in earlier posts. I had not considered to add or remove positions as needed to further make it different from the original.

@Estragon: There is only a limited number of ways to soundly interpret positional play and endgames with any given postiion, so it falls in line with jhbchess' "monopoly of expression" condition.

Here is a discussion from 2009 regarding "licensing a chess move":
http://www.techdirt.com/articles/20090305/0158524003.shtml

I noticed that the generous opinions in this thread are varied yet speculative. I strongly suggest for the OP to err on the side of caution and get legal advice NOW from a copyright lawyer who specializes on print publications, particularly in the  "chess, games and puzzles" category. It will be significantly cheaper than hiring a defense attorney to be represented in a copyright infringement lawsuit and paying for damages should one lose the case.

EDIT

One question that came to my mind immediately, and if it's been mentioned here, I've overlooked it, is whether the positions in this book are derived from actual games or were created by the author.  If they were taken from actual games, then it would seems that only the collection itself, or portions of the collection, would entail a creative process worthy of copyright. If the author created each position, then it would seem that each and every diagramed position would be a creative endeavor worthy of some protection. 

They were positions from actual games.

The terms "collection" and "creative" copyrights are what our posts have been debating about.

I still suggest to pay a lawyer for this. Speculation is too risky to get sued for.