Re: Comment on Feist

From: Matthew Watters <watters[_at_]prtaxp.unl.edu>
Date: Wed, 19 Feb 1997 17:20:20 -0600

> Dennis Karjala <dennis.karjala[_at_]asu.edu> writes:
>
> 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.
>

---

> 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.

We take the creativity that goes into mapmaking for granted. I would not forget the historical treatment of maps: in the 18th and 19th centuries, maps were hand-drawn and highly valuable in themselves, whether or not the facts they ultimately portrayed were even accurate. I would suggest that the language in Mason (as Prof. Karjala characterizes it--I haven't read it) is not far off the mark. The effort that goes into representing the physical world in a tangible medium (i.e., making a map) is inherently creative--requiring skills in drawing, measurement and observation, conceptualizing, visualizing, etc., that outstrip qualitatively the effort that goes into compiling a phone directory or some other bare-bones compendium of pure fact. Mapmaking, arguably, is an art, as well as a science. (You couldn't say that about phone bookmaking.) It does not seem at all unreasonable to me for copyright protection to be extended to all maps. As any map requires a least a smidge of creativity (in its visual arrangement or conception, its makers choice of what to include or omit, etc.), it would pass the test of Feist.

Thinking linguistically, a phone book has no intrinsic value beyond the data it conveys. The signified is all that matters. In the case of a map, the signifier itself is a product of a creative act; even a boring old plot map, representing as it does a sequence of selections as to what facts to include or omit, has value per se that, consistent with Feist, is worthy of copyright protection.

Matthew Watters
Copyright Clearance Specialist
Copy Services Department
University of Nebraska-Lincoln
Lincoln, NE 68588-0513
(402) 472-4663
Fax: (402) 472-2144
e-mail: watters[_at_]prtaxp.unl.edu

"Whenever you find yourself on the side of the majority, it is time to pause and reflect." --Mark Twain. Received on Thu Feb 20 1997 - 13:13:16 GMT