Re: Comment on Feist

Terrence J. Carroll <carroll[_at_]tjc.com> writes:
>
> 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.

 I'm not sure that the issue is quite so easy. Where is the "organization or arrangement" creativity in the bare-bones plat maps found copyright protected in Rockford Map (768 F.2d 145 (7th Cir. 1985) or Mason v. Montgomery Map (967 F.2d 135 (5th Cir. 1992)? The language of Mason, especially, comes very close to saying that creative methodology for creating maps results in copyright protection for the result--even though the result itself does not affirmatively indicate any of that creativity on its face.

Moreover, what is protected in the creative map showing the failed army attack and how does the methodology for showing "at a glance" very important factual information relate to the scope of protection? Consider the first contour map, a very creative way of showing "at a glance" important three-dimensional information with only two graphic dimensions. Presumably we would agree that anyone could use either methodology for showing another battle or another mountain in 3D. That means the methodology, although creative, is not a protected feature of the work. But if that is true, it would seem to follow that anyone else could depict the same battle or mountain, using the same methodology, provided he or she does not copy. (We are assuming, of course, that the methodology is "copied" or "taken" from the first work, but otherwise our copier is digging out his or her own facts and assembling them independently.) But, especially in the case of a bare-bones contour map (like a bare-bones real estate plat map), the information is almost entirely factual except for the creative methodology (we are still assuming now that contour maps are a new invention). If all we protect in Terry's battle map is the color scheme and related purely esthetic aspects, we protect very little of the creativity and work that went into the first map's creation. Yet to go beyond that seems to run afoul of Feist's teaching that factual information is free for the taking and/or section 102(b)'s command that methodologies and systems are not protected by any copyright in a work describing or using them.

I discuss these points in more detail in two articles: "Copyright and Misappropriation," 17 U. Dayton L. Rev. 885 (1992) and "Copyright in Electronic Maps," 35 Jurimetrics J. 395 (1995). The bottom line, though, is that the copyright protection of maps presents serious theoretical and practical problems.

Dennis S. Karjala
Professor of Law
Arizona State University
Tempe, Arizona 85287
602-965-4010
602-965-2427 (fax)
dennis.karjala[_at_]asu.edu
Visit the "Opposing Copyright Extension" web page at <http://www.public.asu.edu/~dkarjala> Received on Tue Feb 18 1997 - 19:17:47 GMT