You're right as far as the MSJ is concerned, and I should've been more precise. I was focusing on the dictum in the preceding paragraph (because we're discussing the broader implications of the order rather than the nuts-and-bolts of the instant motion). In that paragraph, the judge wrote:

> More than that, each headnote is an individual, copyrightable work. That became clear to me once I analogized the lawyer’s editorial judgment to that of a sculptor. A block of raw marble, like a judicial opinion, is not copyrightable. Yet a sculptor creates a sculpture by choosing what to cut away and what to leave in place. That sculpture is copyrightable. 17 U.S.C. §102(a)(5). So too, even a headnote taken verbatim from an opinion is a carefully chosen fraction of the whole. Identifying which words matter and chiseling away the surrounding mass expresses the editor’s idea about what the important point of law from the opinion is. That editorial expression has enough “creative spark” to be original. ... So all headnotes, even any that quote judicial opinions verbatim, have original value as individual works.

I personally don't think this sculpture metaphor works for verbatim quotes from judicial opinions.

Yeah, I'm willing to bet that metaphor gets called out as ludicrous by a higher court, as it has broader implications across types of editorial expression that break down when examined.

The marble from which a sculpture is carved is not itself a copyrighted work, and if we imagine it as having copyright protection, to the extent it's recognizable after editorial expression it'd have to qualify as fair use itself.

Both the more general premise (a work must not be an infringement of someone else’s work to be a work subject to copyright) and the more specific premise (court decisions are subject to copyright in the United States) in your argument for why verbatim selection from a court decision is not analogous, for copyright, to a sculptor carving from a block of material are wrong, though.

> Yeah, I'm willing to bet that metaphor gets called out as ludicrous by a higher court, as it has broader implications across types of editorial expression that break down when examined.

It's not ludicrous at all. Whether a work of "selection" from an existing source can be copyrightable in its own right would probably have to be judged on pretty much a case-by-case basis, but even in the context of "selecting" from a ruling there are almost certainly many cases where that work is creative and original enough that it can sensibly be protected by copyright.