One of my favorite blogs, Corante, had a posting about cease-and-desist letters sent by the NY Metropolitan Transit Authority and BART in the SF Bay Area over iPod downloading of subway maps. This is very disturbing. Those agencies have much more pressing, public safety and service issues they should be worrying about than vigorously asserting copyright in subway maps. And if their concern is that the iPod maps were inaccurate, they should have offered to provide a free, up-to-date file. The only purpose for such maps in that format is to inform the public about which trains to take. Copyright is both unnecessary and inappropriate. The agencies' actions are shameful.
But are they legally sound? Maps have been protected since the 1790 Copyright Act. The basis for protection in some of the early decisions is unclear: was it sweat of the brow, as a factual compilation, as a visual work, or something else? See e.g., Perris v. Hexamer, 99 U.S. 674 (1878); Blunt v. Patten, 3 F. Cas. 762 (C.C.S.D.N.Y. 1828) and on maps in general in this period, J.B. Harley, The New Nature Maps: Essays in the History of Cartography (Paul Laxton ed. 2001); John Rennie Short, Representing the Republic: Mapping the United States (1600-1900) (2001). Compendium II of Copyright Office Practices Sec. 509.01 (1984) refers to drawings or pictorial representations "based on original surveying or carto-graphic field work," but this final requirement seems inappropriate after Feist. More persuasive is Mason v. Montgomery Data, Inc., 967 F.2d 135 (5th Cir. 1992), which based protection on the inherent pictorial nature of the map.
A particularly apposite opinion is Streetwise Maps, Inc. v. Vandam, Inc., 159 F.3d 739 (2d Cir. 1998), which involved to a glossy map of New York City. And then there is County of Suffolk, N.Y. v. First American Real Estate Solutions, 261 F.3d 179 (2d Cir. 2001), which injected a new incentives based test for protection. Under that approach, there is no need for the incentive of copyright for the transit authorities to publish the subway maps; they have to anyway, if not by law, by necessity.
Unlike Section 105 of title 17, which bars protection for works of the United States government, there is no bar on state governments (or subdivisions or corporations owned by them) owning copyright, although states are free to ban protection: given states lack vigorous assertion of sovereign immunity, common decency would require them to disavow copyright. There is no statutory bar to protection for original subway maps, therefore. There should, though, be a common sense bar but that, like common decency, is apparently lacking.
Isn't it irrelevant under what theory maps gain protection since they were in the very first copyright act passed by the first congress in its second session very shortly after the ratification of the Constitution and its copyright clause? Would anyone dispute that the intent of the Framers had been to consider a map as a writing advancing the progress of science - - be it a drawing or be it completely utilitarian. If utilitarian, I would agree that it challenges a whole line of contrary interpretations of works of authorship - - but it’s those interpretations that might be worthy of review rather than trying to ex post facto fit maps into their logic.
ReplyDeleteI don't think it is an issue whether they can be protected, but instead how they can be infringed, and that might depend on what is the nature of protection.
ReplyDeleteGoing back to the 1790s, accurate maps were much harder to create (without planes and satellites and all). That's not to claim a sweat of the brow argument, but perhaps maps in the 1790s had a little bigger "artistic element" to them.
ReplyDeleteI've always figured modern-day maps are only protected to the extent that they aren't dictated by facts. For instance, the color scheme is protected as much as possible, as is any special aspect of the map (perhaps a suggested walking tour). But portions of the map that rely exclusively on facts (eg., where the roads are) cannot be protected.
The second Circuit's Streetwise opinion has a pretty good discussion; even on colors, there are conventions like blue for water. There are of course always choices as to facts, what to leave out, what to emphasize, etc.
ReplyDeleteI wonder if this could be related to concerns about terrorists using subway maps on their iPods. MTA recently proposed, then withdrew, rules banning most photography of the system based on such concerns. Although this concern seems (is?) frivolous, the MTA letter seems awfully short in my opinion to be a serious effort at obtaining license fees. However, it could be an effort by an overworked attorney to appease someone with the MTA police.
ReplyDeleteI don't think it is an issue whether they can be protected, but instead how they can be infringed,...
ReplyDeleteAgreed. But maps in 1790 were clearly utilitarian - - life and death propositions - - and not simply artistic creations. The first congress protected them while not protecting other forms of highly expressive writings such as music notation or illustrations. Current copyright law might not protect maps as expansively, with respect to their utilitarian function by way of example, as the Framers may have had in mind. There is no reason for Article 1 section 8 to have birthed only a bifurcated patent and copyright system. As a Constitutional matter, there could be still be a kind of statutory zebra IP with elements of both particularly for things that are both utilitarian and works of creative expression - - like so many software programs and, apparently, 18th century maps.
Copyright protects works of all stripes, fictional and functional like maps. I admit to being baffled by the MTA's motives. Maybe I'll write them.
ReplyDeleteCopyright protects works of all stripes, fictional and functional like maps. I admit to being baffled by the MTA's motives. Maybe I'll write them.
ReplyDeleteI agree that this really seems like something from left field.
ReplyDeleteMy question is whether as publicly-funded entities these transit agencies have a right to protect copyright. Is the FEMA logo copyrighted? Is the US Army logo copyrighted? Maybe they are and I'm woefullly out of the loop, but it just seems strange as a policy matter for tax-funded entities to be suing taxpayers for using maps paid for by taxes.
Egads. I missed the last paragraph somehow, which answered the legal question I had about states and subordinate entities being able to copyright. Still, as a matter of policy, this seems rather questionable.
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