“Sweat of the Brow” Doctrine Still Dead

One of the oddities of American copyright law was what was referred to as the “Industrious Collection” [ aka the “Sweat of the Brow”] doctrine which granted a copyright in works resulting from the laborious assembly of otherwise unprotectable data. Examples were telephone directories, sports statistics, maps and other ‘facts’….assembled by folks in green eye shades, no doubt.

Perhaps because of our international citizenship, perhaps because of the ubiquity of the computer’s power, perhaps because Sandra Day O’Connor had magic glasses when she read the Constitution Article One, Section Eight, Clause eight, perhaps because no one wears green eye shades at work anymore. Whatever the reason, the “Sweat of the Brow” doctrine died officially in the Supreme Court opinion, Feist v. Rural Telephone (1990).

In the recent case of Jeffrey A. Grusenmeyer & Associates Inc. v. Davison, Smith & Certo Architects Inc. et al., No. 1:04CV2381, N.D. Ohio; 2006 U.S. Dist. LEXIS 2757 Grusenmeyer, an architectural firm, submitted master plans with explicit understanding that the plans would be used in the development of a new campus. Claims that the plans were copyrighted were challenged because Plaintiff’s plan amounted to an AutoCAD program depicting the existing facility without new expression. The court, in finding no copyright, said,

“Although Plaintiff may have dedicated considerable time to the existing conditions drawings, copyright law rewards originality, rather than effort”.

‘Industrious Collection’ [aka ‘Sweat of the Brow’] remains just detritus of last century…. along with those green eye shades.



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