## Facts

- George L. Kregos created and distributed a daily baseball “pitching form” to newspapers showing information about scheduled games and past performance of the opposing starting pitchers.
- Kregos first distributed the redesigned form in 1983 and registered it; the dispute concerned the form’s selection of statistical categories, not the daily data inserted into it.
- The 1983 form included basic game information and nine items of past-performance information for each pitcher, organized into categories.
- In 1984, the Associated Press published a pitching form supplied by Sports Features Syndicate that was described as nearly identical to Kregos’s form.
- In 1986, AP and Sports Features revised their form, including adding a “TEAM REC” category (team record in games started by that pitcher in the current season).
- Kregos sued alleging copyright infringement based on defendants’ use of his selected pitching-statistic categories and asserted trademark/trade dress theories based on the form’s configuration and layout.
- The district court granted summary judgment for defendants, finding no copyrightability and rejecting trademark claims; Kregos appealed.

## Issues

1. Whether Kregos’s selection of nine pitching-statistic categories contained sufficient originality to qualify as a protectable factual compilation under the Copyright Act.
2. Whether the idea–expression dichotomy and merger doctrine barred protection because the selection allegedly merged with the idea of providing useful pitching statistics.
3. Whether the blank-form doctrine barred protection because the form primarily provided spaces for later entry of factual data.
4. Whether the form’s layout and format were protectable as a trademark or trade dress, including whether they were functional or had acquired secondary meaning.

## Decision

- The Second Circuit affirmed summary judgment dismissing the trademark/trade dress claims.
- The court reversed summary judgment on the copyright claim and remanded for trial.
- The court held a factfinder could determine that Kregos’s selection of pitching statistics met the minimal creativity threshold for compilation protection.
- The court rejected categorical application of merger and the blank-form doctrine to bar protection at the summary-judgment stage.
- The court cautioned that any protectable scope was narrow and that potential relief could be extremely limited.

## Legal Principles

- A compilation of facts may be protected if its selection or arrangement reflects at least minimal creativity; comprehensive or mechanically inevitable selections are less likely to qualify.
- A specific selection of categories used to present factual information can constitute protectable expression when multiple alternative selections are available; merger does not apply where the idea can be expressed in many ways.
- The blank-form doctrine does not automatically bar protection when the form’s structure and choice of categories communicate information about what the author deems important.
- Trade dress or trademark protection is unavailable for primarily functional features used to communicate information efficiently, and in any event requires proof of secondary meaning when distinctiveness is not inherent.
- Even when a compilation is copyrightable, protection is thin and infringement analysis focuses on similarity to the protectable selection/arrangement rather than the underlying facts.

## Conclusion

The Second Circuit held that Kregos’s pitching form could be copyrightable as a factual compilation based on its creative selection of statistical categories, reversing dismissal of the copyright claim for trial, but it affirmed dismissal of trademark/trade dress theories because the form’s configuration was functional and lacked secondary meaning, while emphasizing that any copyright protection would be narrow.


Kregos v. Associated Press, 937 F.2d 700 (2d Cir. 1991)