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.