## Facts

- CDN Inc. published wholesale price guides for collectible U.S. coins, including the Coin Dealer Newsletter (“Greysheet”), used widely by coin dealers.
- Kenneth A. Kapes operated a coin business and posted an online “Fair Market Coin Pricer” listing retail prices for many coins.
- Kapes developed a computer program that generated retail prices using wholesale prices; he acknowledged using CDN’s wholesale price lists as a baseline input.
- After discovering Kapes’s website, CDN sued for copyright infringement and sought injunctive relief.
- The parties stipulated to waive trial and submit cross-motions for summary judgment, agreeing the dispositive issue was whether CDN’s listed prices were copyrightable subject matter under 17 U.S.C. § 102.
- The district court held CDN’s prices were original creations rather than uncopyrightable facts, granted summary judgment to CDN, and enjoined Kapes from further infringement.
- Kapes appealed, challenging only the copyrightability of the wholesale prices.

## Issues

1. Whether the individual wholesale coin prices in CDN’s price guides are sufficiently original to be copyrightable under 17 U.S.C. § 102, or instead are uncopyrightable facts.

## Decision

- The Ninth Circuit affirmed the district court’s judgment.
- The court held CDN’s wholesale prices reflected original judgment and estimation, not mere reporting of preexisting factual data.
- Given the parties’ stipulation and Kapes’s admitted use of CDN’s prices as inputs, the injunction and summary judgment for CDN were upheld.

## Legal Principles

- Copyright protection requires originality; facts are not protected, but original expression is.
- A numeric figure can be protected if it represents an author’s original estimate or evaluative judgment rather than a uniquely determined, preexisting fact.
- Consistent with Feist, protection does not rest on effort alone; it rests on originality in the author’s expressive choices (including the selection of a specific value after evaluating market information).
- Where parties stipulate that copyrightability is the sole dispositive issue, a finding of copyrightability may make infringement and injunctive relief follow on the stipulated record.

## Conclusion

The Ninth Circuit concluded that a publisher’s wholesale coin prices were copyrightable because they embodied original estimates derived from judgment about market information, and it affirmed summary judgment and an injunction against a competitor who used those prices as the baseline for generating retail prices.


CDN Inc. v. Kapes, 197 F.3d 1256 (9th Cir. 1999)