We are sometimes guilty, in law schools, of treating the problem of finding “the issue” (or issues) in a case as a rather trivial one – as if it should be obvious, just from a quick reading of the case, what the issue(s) were. The truth is, identifying the issue(s) in a case is something of an art, and a difficult one at that. In part, this is because judicial opinions are often confusingly written; more fundamentally, though, it is difficult because there are many different ways to state the issue(s) in a case, all of them “correct.”

Judicial opinions are answers to a question (or, more usually, a series of related questions); finding the issue in the case is just another way of asking: “What was the question the court answered?” It’s like “Jeopardy!”; the court’s decision is the answer, and your job is to figure out the question to which it is the answer. Take Feist v. Rural Telephone, for example. What’s the question the Court is answering in that case? Here’s one way to put it:

“Whether the defendant infringed plaintiff’s copyright.”

That’s absolutely correct – that is a question the Court answers (in the negative) in the case. But it’s not a terribly good statement of the issue – not because it is “incorrect,” but because it’s not useful – it doesn’t generate a useful holding. Issue statements and holdings are two sides of the same coin; if the issue in the Feist case is “whether the defendant infringed plaintiff’s copyright,” then the holding is “Held: The defendant did not infringe plaintiff’s copyright.” That’s correct as far as it goes; it doesn’t, however, provide any useful information that can be applied in future cases – i.e., it doesn’t give you anything that you can use in future cases, because it doesn’t tell you anything about the law that the Court applied in the case (and that should, under the principle of stare decisis, be applied in future cases). Here’s another statement of the issue in Feist:

“Whether a telephone directory that was copied from plaintiff’s white pages directory infringes plaintiff’s copyright.”

That’s a little better. The Court answers that question, too, holding that “a telephone directory, copied from plaintiff’s white pages directory, does not infringe plaintiff’s copyright.”

Even better is this:

“Whether a telephone directory that was copied from a white pages directory that had no original selection or organization of the facts presented, infringes the copyright in the white pages.”

OR

“Whether an alphabetical listing of names, addresses and phone numbers derived in substantial part by copying a previously-existing white pages directory organized in the same manner infringes the copyright in that directory.”

There are lots of other ways to state correctly the question that the Court answers in the case.

Notice that however you choose to state the issue in the case, there’s a sub-issue that the Court found it necessary to address: In order to determine “Whether a telephone directory that was copied from plaintiff’s white pages directory infringes plaintiff’s copyright” [the issue], the Court has to decide [sub-issue] “Whether an ordinary white pages listing of names, addresses, and telephone numbers is protected by copyright.” (This sub-issue generates another holding: Held: An ordinary white pages listing of names, addresses, and telephone numbers is not protected by copyright.) This sub-issue also has sub-sub-issues under it; in order to determine whether an ordinary white pages listing of names, addresses, and telephone numbers is protected by copyright, the Court had to determine whether an ordinary white pages listing of names, addresses, and telephone numbers is an ‘original work of authorship’ within the meaning of the Copyright Act. (Held: an ordinary white pages listing of names, addresses, and telephone numbers is not an ‘original work of authorship’ within the meaning of the Copyright Act). This sub-sub-issue, too, had sub-sub-sub-issues, e.g.:

“Whether the ‘originality’ requirement in §102(a) of the Copyright Act is constitutionally mandated.” [Held: the ‘originality’ requirement in §102(a) of the Copyright Act is constitutionally mandated]

Because of the relationship between issues and holdings, you can sometimes more easily find the issues in a case by working backwards from the holding. Start by trying to write out what the court decided. In Bell v. Catalda, for instance, you might say the court decided that “a mezzotint copy of a work of art in the public domain can be protected by copyright if it contains some ‘original’ contribution by the mezzotint author.” If that’s what the court decided, the issue must have been “whether a mezzotint copy of a work of art in the public domain can be protected by copyright if it contains some ‘original’ contribution by the mezzotint author.” That’s a good statement of the issue/holding (though there are many others one can construct that are equally good, and perhaps better); it’s good because it states a rule of law that the court decided and that will bind future courts under the principle of stare decisis; if that precise question is presented to a later court (at least, one that is in the Second Circuit), the court is bound by the Bell decision to say “yes, it can be protected.”