Courts Still Can’t Let Go of the Possibility that Individual Prices are Copyrightable–Rapaport v. Nivoda

In my previous blog post on this case, I wrote: This lawsuit raises one of the venerable but surprisingly vexing copyright law questions: when is a price copyrightable? That might sound like a stupid question because “facts” aren’t copyrightable and a price seems like it should be characterized as a “fact.” And yet…the copyright law jurisprudence is littered with cases saying or implying that individual prices could be copyrightable (e.g., the abysmal CDN v. Kapes opinion), as wacky as that may seem. These cases have imperiled various important social activities, such as price comparisons. This court, in contrast, treats the copyrightability of prices as the easy question I always thought it should be Ideally, the clean lower court ruling would have finally ended the price copyrightability drama. Instead, the Second Circuit did a “well, actually….” and revives the case. [A reminder that in this case, Nivoda never published Rapaport’s prices directly. Instead, Nivoda displays…