Re: Comment on Feist

On Wed, 12 Feb 1997, David F. Crosby wrote:
>
> I have trouble reconciling this position [Feist] with the position
> that maps are copyrightable. As recall from law school, the way this
> conclusion was verified was based on the facts that after the first
> copyright acts were passed, the framers permitted maps to be
> registered.

In fact, the formal title for the first U.S. copyright law, in 1790 was "An Act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned." Maps were the first thing on the list, even ahead of books. As to the present law, maps are expressly given as examples in the definition of pictorial, graphic and sculptural works. They were also listed was in section 5 of the 1909 Act. There's no real rocket science needed to determine that maps are copyrightable. It's always been statutorily express.

But there's really no contradiction here. Mapmakers use a considerable amount of discretion in creating their maps. They make a number of decisions as to what types of cities to include, what geographic features, the levels at which to categorize various features (e.g., determining the various population categories that go with various city pinpoint-marks), color selection (although whoever came up with using blue for water scored quite a coup, huh?), what types of streets to include, etc. It's difficult for me to see how this could not help but constitute the requisite originality for copyright protection.

In fact, one of the most creative works I've ever seen is a map depicting a failed army attack. Using the width and color of a line, it graphically depicted the number and position of the army over time, territory and temperature in an extremely telling way. At a glance, you can see the decimation of the ranks and the doom of the campaign. Incredibly creative use of correlated information, and a perfect example of the selection, coordination and arrangement that justifies copyright in such works. While not all maps rise to this level, almost all maps have some modicum of such creativity.

> So, from Feist it follows that the more visually accurate a map is
> (and less creative in the depiction), the less protectable it is.

Well, it follows that the factual information conveyed in the map is not protectable.

> In my opinion, the essence of copyright is copying. It is a
> means to an end. To promote the progress of science by preventing
> copying. The listing facilitated communication, a noble cause in the
> age of the information super highway.

But the U.S. policy, as articulated by Feist and by the majority of pre-Feist courts, is that copyright is to stimulate creation of original works, not to inhibit the dissemination of factual information.

You might argue that the strategy of protecting original works to encourage their further creation is equally applicable to encourage the valuable yet unoriginal compilation of factual material. I think though, that the cost-benefit analysis changes dramatically when you extend copyright or copyright-like protection to cover factual information: there is little social cost in inhibiting the copying of expression, so long as the factual information is free. There is a very high social cost in inhibiting the free flow of information.

> To the extent that fake names
> were copied, Fiest should be liable or the court should have at least
> provided an analysis that concluded that the amount copied was
> insignificant.

The court was correct in not addressing that question. First, as to the Supreme Court, it wasn't the issue upon which certiorari was granted. Second, as to all the courts, whether district, appellate and Supreme, Rural did not bring a case for infringement in its copyright for its original literary work of four fake names. It brought an action for copyright of its compilation. Any decision on the four names by any court would have been in the nature of dicta.

--
Terrence J. Carroll 
Attorney at Law                                      ph: 415/843-5090
Cooley Godward LLP                                  fax: 415/857-0663
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